Petitioners Vs VS: en Banc

EN BANC
[G.R. No. L-10520. February 28, 1957.]
LORENZO M. TAÑADA and DIOSDADO MACAPAGAL , petitioners, vs .

MARIANO JESUS CUENCO, FRANCISCO A. DELGADO, ALFREDO
CRUZ, CATALINA CAYETANO, MANUEL SERAPIO, PLACIDO REYES,
and FERNANDO HIPOLITO, in his capacity as cashier and disbursing
officer , respondents.
Tañada, Teehankee & Macapagal for petitioners.

Solicitor General Ambrosio Padilla and Solicitor Troadio T. Quiazon, Jr. for
respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; SELECTION OF MEMBERS OF THE SENATE

ELECTORAL TRIBUNAL; NATURE OF TRIBUNAL. — Although the Constitution provides
that the Senate shall choose six (6) Senators to be members of the Senate Electoral
Tribunal, the letter is part neither of Congress nor of the Senate. (Angara vs. Electoral
Commission, 63 Phil., 139; Suanes vs. Chief Accountant, 81 Phil., 818; 46 Off. Gaz.,
462.)
2. ID.; ID.; MEANING OF "POLITICAL QUESTION"; CASE AT BAR. — The term
"political question" connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. It refers to those questions which, under the Constitution,
are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of the
Government (16 C. J. S., 413). It is concerned with issues dependent upon the wisdom,
not legality, of a particular measure. In the case at bar, the question for determination is
whether the election of two senators, by the Senate, as members of the Senate
Electoral Tribunal, upon nomination by another senator, who is a member and
spokesman of the party having the largest number of votes in the Senate, on behalf of
its Committee on Rules, contravenes the constitutional mandate that said members of
the tribunal shall be chosen "upon nomination *** of the party having the second largest
number of votes" in the Senate, and hence, is null and void. This is not a political
question. The Senate is not clothed with "full discretionary authority" in the choice of
members of the Senate Electoral Tribunal. The exercise of its power thereon is subject
to constitutional limitations. It is clearly within the legitimate province of the judicial
department to pass upon the validity of the proceedings in connection therewith.
Hence, this Court has, not only jurisdiction, but, also the duty, to consider and determine
the principal issue raised by the parties herein.
3. ID.; ID.; MAIN OBJECTION IN PROVIDING THE ESTABLISHMENT OR
ELECTORAL TRIBUNALS. — The main objective of the framers of the Constitution in
providing for the establishment, rst, of an Electoral Commission, and then of one
Electoral Tribunal for each House of Congress was to insure the exercise of judicial
impartiality in the disposition of election contests affecting members of the lawmaking
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body. To achieve this purpose, two devices were resorted to, namely: (a) the party
having the largest number of votes, and the party having the second largest number of
votes, in the National Assembly or in each House of Congress, were given the same
number of representatives in the Electoral Commission or Tribunal so that they may
realize that partisan considerations could not control the adjudication of said cases,
and thus be induced to act with greater impartiality; and (b) the Supreme Court was
given in said body the same number of representatives as each one of said political
parties, so that the in uence of the former may be decisive and endow said
Commission or Tribunal with judicial temper.
4. ID.; ID.; MOST VITAL FEATURE OF ELECTORAL TRIBUNALS. — The most vital
feature of the Electoral Tribunals is the equal representation of the parties having the
largest and the second largest number of votes in each House therein, and the resulting
equilibrium to be maintained by the Justices of the Supreme Court as members of said
Tribunals.
5. ID.; ID.; PROCEDURE PRESCRIBED FOR SELECTION OF MEMBERS;
COMPLIANCE WITH PROCEDURE MANDATORY. — The framers of the Constitution
intended to prevent the majority party from controlling the Electoral Tribunals, and the
structure thereof is founded upon the equilibrium between the majority and the minority
parties therein, with the Justice of the Supreme Court, who are members of said
Tribunals, holding the resulting balance of power. The procedure prescribed in section
11 of Article VI of the Constitution for the selection of members of the Electoral
Tribunals is vital to the role they are called upon to play. It constitutes the essence of
said Tribunals. Hence, compliance with said procedure is mandatory, and acts
performed in violation thereof are null and void.
6. ID.; ID.; PRESENT SITUATION NOT FORESEEN BY FRAMERS OF THE
CONSTITUTION; SPIRIT OF THE LAW PREVAILS OVER ITS LETTER. — While it is true
that the membership of the Senate Electoral Tribunal, in the case at bar, would in effect
be limited to seven (7), instead of nine (9), members it must be conceded that the
present composition of the Senate, wherein twenty-three (23) of its members belong to
one party and one (1) member belongs to another, was not foreseen by the framers of
the Constitution. Furthermore, the spirit of the law prevails over its letter, and the
solution herein adopted maintains the spirit of the Constitution, for partisan
considerations cannot be decisive in a tribunal consisting of three (3) Justices of the
Supreme Court, three (3) members nominated by the majority party and either one (1)
or two (2) members nominated by the party having the second largest number of votes
in the House concerned.
7. ID,; ID.; ID.; MODERATING ROLE OF JUSTICES OF THE SUPREME COURT. — If
the Nacionalista Party would be allowed to nominate ve (5) members to the Senate
Electoral Tribunal instead of three (3), it would have the absolute majority, since there
would be one (1) member of the Citizens Party and three (3) members of the Supreme
Court, and hence, the philosophy underlying the Constitution would be entirely upset.
The equilibrium between the political parties therein would be destroyed, and, what is
worse, the decisive moderating role of the Justice of the Supreme Court would be
wiped out, and, in lieu thereof, the door would be thrown wide open for the
predominance of political considerations in the determination of election protests
pending before said Tribunal, which is precisely what the fathers of our Constitution
earnestly strove to forestall.
8. ID.; ID.; RELIANCE BY THE CONSTITUTION UPON THE METHOD OF
SELECTION ESTABLISHED THEREIN. — When the election of members of Congress to
the Electoral Tribunal is made dependent upon the nomination of the political parties
referred to in the Constitution, the latter thereby indicates its reliance upon the method
of selection thus established, regardless of the individual qualities of those chosen
therefor. The delegates to the Convention did not ignore the fact that the Constitution
must limit itself to giving general patterns or norms of action. In connection, particularly
with the composition of the Electorals, they believed that, even the most well meaning
individuals often nd it di cult to shake of the bias and prejudice created by political
antagonisms and to resist the demands of political exigencies, the pressure of which is
bound to increase in proportion to the degree of predominance of the party from which
it comes.
9. ID.; ID,; ID.; WAIVER OF CONSTITUTIONAL PROVISIONS INTENDED FOR ONE'S
BENEFIT — Although "an individual may waive constitutional provisions intended for his
bene t," particularly those meant for the protection of his property, and, sometimes,
even those tending "to secure his personal liberty" the power to waive does not exist
when "public policy or public morals" are involved. (11 Am. Jur. 765; I Cooley's
Constitutional Limitations, pp. 368-371) The procedure outlined in the Constitution for
the organization of the Electoral Tribunals was adopted in response to the demands of
the commonweal, and it has been held that "where a statute is founded on public policy,
those to whom it applies should not be permitted to waive its provisions" (82 C. J. S.,
874).
10. ID.; ACTS OF CONGRESS; AUTHORITY OF COURTS TO PASS UPON THE
CONSTITUTIONALITY. — The provision in the Constitution vesting the legislative power
in the Congress of the Philippines does not detract from the power of the courts to
pass upon the constitutionality of act of Congress. Since judicial power includes the
authority to inquire into the legality of statutes enacted by the two Houses of Congress,
and approved by the Executive there can be no reason why the validity of an act of one
of said Houses like that of any other branch of the Government, may not be determined
in the proper actions. In fact, whenever the conducting claims of the parties to a
litigation cannot properly be settled without inquiring into the validity of an act of
Congress or of either House thereof, the courts have, not only jurisdiction to pass upon
said issue, but, also, the duty to do so, which cannot be evaded without violating the
fundamental law and paving the way to its eventual destruction.
11. STATUTORY CONSTRUCTION; DOCTRINE OF CONTEMPORANEOUS OR
PRACTICAL CONSTRUCTION; WHEN APPLICABLE. — As a general rule, it is only in
cases of substantial doubt and ambiguity that the doctrine of contemporaneous or
practical construction has any application. Where the meaning of a constitutional
provision is clear, a contemporaneous or practical executive interpretation thereof is
entitled to no weight and will not be allowed to distort or in any way change its natural
meaning. The reason is that the application of the doctrine of contemporaneous
construction is more restricted as applied to the interpretation of constitutional
provisions than when applied to statutory provisions, and that, except as to matters
committed by the Constitution itself to the discretion of some other department,
contemporary or practical construction is not necessarily binding upon the courts even
in a doubtful case. Hence if in the judgment of the court, such construction is erroneous
and its further application is not made imperative by any paramount consideration of
public policy, it may be rejected (16 C. J. S., 71-72)
12. ID.; CONFLICT BETWEEN SPIRIT AND LETTER OF A STATUTE. — As a general
rule of statutory construction, the spirit or intention of a statute prevails over the letter
thereof, and whatever is within the spirit of a statute is within the statute although it is
not within the letter thereof, while that which is within the letter, but not within the spirit
of a statute, is not within the statute, but, the letter of it is not to be disregarded on the
pretext of pursuing its spirit. (82 C.J.S., 613).
DECISION
CONCEPCION , J : p
Petitioner Lorenzo M. Tañada is a member of the Senate of the Philippines, and

President of the Citizens Party, whereas petitioner Diosdado Macapagal, a member of
the House of Representatives of the Philippines, was one of the o cial candidates of
the Liberal Party for the Senate, at the general elections held in November, 1955, in
which Pacita Madrigal Warns, Lorenzo Sumulong, Quintin Paredes, Francisco Rodrigo,
Pedro Sabido, Claro M. Recto, Domocao Alonto and Decoroso Rosales, were
proclaimed elected. Subsequently, the election of these Senators-elect — who
eventually assumed their respective seats in the Senate — was contested by petitioner
Macapagal, together with Camilo Osias, Geronima Pecson, Macario Peralta, Enrique
Magalona, Pio Pedrosa and William Chiongbian — who had, also, run for the Senate, in
said election — in Senate Electoral Case No. 4, now pending before the Senate Electoral
Tribunal.
The Senate, in its session of February 22, 1956, upon nomination of Senator
Cipriano Primicias, on behalf of the Nacionalista Party, chose Senators Jose P. Laurel,
Fernando Lopez and Cipriano Primicias, as members of the Senate Electoral Tribunal.
Upon nomination of petitioner Senator Tañada, on behalf of the Citizens Party, said
petitioner was next chosen by the Senate as member of said Tribunal. Then, upon
nomination of Senator Primicias, on behalf of the Committee on Rules of the Senate,
and over the objections of Senators Tañada and Sumulong, the Senate choose
respondents Senators Mariano J. Cuenco and Francisco A. Delgado as members of the
same Electoral Tribunal. Subsequently, the Chairman of the latter appointed: (1) Alfredo
Cruz and Catalina Cayetano, as technical assistant and private secretary, respectively,
to Senator Cuenco, as supposed member of the Senate Electoral Tribunal, upon his
recommendation of said respondents; and (2) Manuel Serapio and Placido Reyes, as
technical assistant and private secretary, respectively to Senator Delgado, as supposed
member of said Electoral Tribunal, and upon his recommendation.
Soon, thereafter, Senator Lorenzo M. Tañada and Congressman Diosdado
Macapagal instituted the case at bar against Senators Cuenco and Delgado, and said
Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, as well as Fernando
Hipolito, in his capacity as Cashier and Disbursing O cer of the Senate Electoral
Tribunal. Petitioners allege that on February 22, 1956, as well as at present, the Senate
consists of 23 Senators who belong to the Nacionalista Party, and one (1) Senator —
namely, petitioner, Lorenzo M. Tañada — belonging to the Citizens Party; that the
Committee on Rules for the Senate, in nominating Senators Cuenco and Delgado, and
the Senate, in choosing these respondents, as members of the Senate Electoral
Tribunal, had "acted absolutely without power or color of authority and in clear violation
. . . of Article VI, Section 11 of the Constitution"; that "in assuming membership in the
Senate Electoral Tribunal, by taking the corresponding oath of o ce therefor", said
respondents had "acted absolutely without color of appointment or authority and are
unlawfully, and in violation of the Constitution, usurping, intruding into and exercising
the powers of members of the Senate Electoral Tribunal"; that, consequently, the
appointments of respondents, Cruz, Cayetano, Serapio and Reyes, as technical
assistants and private secretaries to Senators Cuenco and Delgado — who caused said
appointments to be made — as members of the Senate Electoral Tribunal, are unlawful
and void; and that Senators Cuenco and Delgado "are threatening and are about to take
cognizance of Electoral Case No. 4 of the Senate Electoral Tribunal, as alleged
members thereof, in nulli cation of the rights of petitioner Lorenzo M. Tañada, both as
a Senator belonging to the Citizens Party and as representative of the Citizens Party in
the Senate Electoral Tribunal, and in deprivation of the constitutional rights of petitioner
Diosdado Macapagal and his co-protestants to have their election protest tried and
decided by an Electoral Tribunal composed of not more than three (3) senators chosen
by the Senate upon nomination of the party having the largest number of votes in the
Senate and not more than three (3) Senators upon nomination of the party having the
second largest number of votes therein, together with three (3) Justices of the
Supreme Court to be designated by the Chief Justice, instead of by an Electoral
Tribunal packed with ve members belonging to the Nacionalista Party, which is the
rival party of the Liberal Party, to which the petitioner Diosdado Macapagal and his co-
protestants in Electoral Case No. 4 belong, the said ve (5) Nacionalista Senators
having been nominated and chosen in the manner alleged . . . hereinabove."
Petitioners pray that:
"1. Upon petitioners' ling of a bond in such amount as may be determined
by this Honorable Court, a writ of preliminary injunction be immediately issued
directed to respondents Mariano J. Cuenco, Francisco A. Delgado, Alfredo Cruz,
Catalina Cayetano, Manuel Serapio and Placido Reyes, restraining them from
continuing to usurp, intrude into and/or hold or exercise the said public o ces
respectively being occupied by them in the Senate Electoral Tribunal, and to
respondent Fernando Hipolito restraining him from paying the salaries of
respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes,
pending this action.
"2. After hearing, judgment be rendered ousting respondents Mariano J.
Cuenco, Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio
and Placido Reyes from the aforementioned public o ces in the Senate Electoral
Tribunal and that they be altogether excluded therefrom and making the
preliminary injunction permanent, with costs against the respondents."
Respondents have admitted the main allegations of fact in the petition, except
insofar as it questions the legality and validity of the election of respondents Senators
Cuenco and Delgado, as members of the Senate Electoral Tribunal, and of the
appointment of respondent Alfredo Cruz, Catalina Cayetano, Manuel Serapio and
Placido Reyes as technical assistants and private secretaries to said respondents
Senators. Respondents, likewise, allege, by way of special and a rmative defenses,
that: (a) this Court is without power, authority of jurisdiction to direct or control the
action of the Senate in choosing the members of the Electoral Tribunal; and ( b ) that the
petition states no cause of action, because "petitioner Tañada has exhausted his right
to nominate after he nominated himself and refused to nominate two (2) more
Senators", because said petitioner is in estoppel, and because the present action is not
the proper remedy.
I. Respondents assail our jurisdiction to entertain the petition, upon the ground
that the power to choose six (6) Senators as members of the Senate Electoral Tribunal
has been expressly conferred by the Constitution upon the Senate, despite the fact that
the draft submitted to the constitutional convention gave to the respective political
parties the right to elect their respective representatives in the Electoral Commission
provided for in the original Constitution of the Philippines, and that the only remedy
available to petitioners herein "is not in the judicial forum", but "to bring the matter to
the bar of public opinion."
We cannot agree with the conclusion drawn by respondents from the foregoing
facts. To begin with, unlike the cases of Alejandrino vs. Quezon (46 Phil., 83) and Vera
vs. Avelino (77 Phil., 192) — relied upon by the respondents — this is not an action
against the Senate, and it does not seek to compel the latter, either directly or indirectly,
to allow the petitioners to perform their duties as members of said House. Although
the Constitution provides that the Senate shall choose six (6) Senators to be members
of the Senate Electoral Tribunal, the latter is part neither of Congress nor of the Senate.
(Angara vs. Electoral Commission, 63 Phil., 139; Suanes vs. Chief Accountant, 81 Phil.,
818; 46 Off. Gaz., 462.)
Secondly, although the Senate has, under the Constitution, the exclusive power to
choose the Senators who shall form part of the Senate Electoral Tribunal, the
fundamental law has prescribed the manner in which the authority shall be exercised.
As the author of a very enlightening study on judicial self-limitation has aptly put it:
"The courts are called upon to say, on the one hand, by whom certain
powers shall be exercised, and on the other hand, to determine whether the
powers thus possessed have been validly exercised. In performing the latter
function, they do not encroach upon the powers of a coordinate branch of the
government, since the determination of the validity of an act is not the same thing
as the performance of the act. In the one case we are seeking to ascertain upon
whom devolves the duty of the particular service. In the other case we are merely
seeking to determine whether the Constitution has been violated by anything done
or attempted by either an executive o cial or the legislative." (Judicial Self-
Limitation by Finkelstein, pp. 221, 224, 244, Harvard Law Review, Vol. 39;
emphasis supplied.)
The case of Suanes vs. Chief Accountant (supra) cited by respondents refutes
their own pretense. This Court exercised its jurisdiction over said case and decided the
same on the merits thereof, despite the fact that it involved an inquiry into the powers
of the Senate and its President over the Senate Electoral Tribunal and the personnel
thereof.
Again, under the Constitution, "the legislative power" is vested exclusively in the
Congress of the Philippines. Yet, this does not detract from the power of the courts to
pass upon the constitutionality of acts of Congress 1 And, since judicial power includes
the authority to inquire into the legality of statutes enacted by the two Houses of
Congress, and approved by the Executive, there can be no reason why the validity of an
act of one of said Houses, like that of any other branch of the Government, may not be
determined in the proper actions. Thus, in the exercise of the so- called "judicial
supremacy", this Court declared that a resolution of the defunct National Assembly
could not bar the exercise of the powers of the former Electoral Commission under the
original Constitution. 2 (Angara vs. Electoral Commission, supra), and annulled certain
acts of the Executive 3 as incompatible with the fundamental law.
In fact, whenever the con icting claims of the parties to a litigation cannot
properly be settled without inquiring into the validity of an act of Congress or of either
House thereof, the courts have, not only jurisdiction to pass upon said issue, but, also,
the duty to do so, which cannot be evaded without violating the fundamental law and
paving the way to its eventual destruction. 4
Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1) and Cabili vs.
Francisco (88 Phil., 654), likewise, invoked by respondents, in point. In the Mabanag
case, it was held that the courts could not review the nding of the Senate to the effect
that the members thereof who had been suspended by said House should not be
considered in determining whether the votes cast therein, in favor of a resolution
proposing an amendment to the Constitution, su ced to satisfy the requirements of
the latter, such question being a political one. The weight of this decision, as a
precedent, has been weakened, however, by our resolutions in Avelino vs. Cuenco (83
Phil., 17), in which this Court proceeded to determine the number essential to
constitute a quorum in the Senate. Besides, the case at bar does not hinge on the
number of votes needed for a particular act of said body. The issue before us is
whether the Senate — after acknowledging that the Citizens Party is the party having the
second largest number of votes in the Senate, to which party the Constitution gives the
right to nominate three (3) Senators for the Senate Electoral Tribunal — could validly
choose therefor two (2) Nacionalista Senators, upon nomination by the oor leader of
the Nacionalista Party in the Senate, Senator Primicias, claiming to act on behalf of the
Committee on Rules for the Senate.
The issue in the Cabili case was whether we could review a resolution of the
Senate reorganizing its representation in the Commission on Appointments. This was
decided in the negative, upon the authority of Alejandrino vs. Quezon (supra) and Vera
vs. Avelino (supra), the main purpose of the petition being "to force upon the Senate the
reinstatement of Senator Magalona in the Commission on Appointments," one-half
(1/2) of the members of which is to be elected by each House on the basis of
proportional representation of the political parties therein. Hence, the issue depended
mainly on the determination of the political alignment of the members of the Senate at
the time of said reorganization and of the necessity or advisability of effecting said
reorganization, which is a political question. We are not called upon, in the case at bar,
to pass upon an identical or similar question, it being conceded, impliedly, but clearly,
that the Citizens Party is the party with the second largest number of votes in the
Senate. The issue, therefore, is whether a right vested by the Constitution in the Citizens
Party may validly be exercised, either by the Nacionalista Party, or by the Committee on
Rules for the Senate, over the objection of said Citizens Party.
The only ground upon which respondents' objection to the jurisdiction of this
Court and their theory to the effect that the proper remedy for petitioners herein is, not
the present action, but an appeal to public opinion, could possibly be entertained is,
therefore, whether the case at bar raises merely a political question, not one justiciable
in nature.
In this connection, respondents assert in their answer that "the remedy of
petitioners is not in the judicial forum, but, to use petitioner Tañada's own words, 'to
bring the matter to the bar of public opinion' (p. 81, Discussion on the Creation of the
Senate Electoral Tribunal, February 21, 1956)." This allegation may give the impression
that said petitioner had declared, on the oor of the Senate, that his only relief against
the acts complained of in the petition is to take up the issue before the people — which
is not a fact. During the discussions in the Senate, in the course of the organization of
the Senate Electoral Tribunal, on February 21, 1956, Senator Tañada was asked what
remedies he would suggest if he nominated two (2) Nacionalista Senators and the
latter declined the nomination. Senator Tañada replied:
"There are two remedies that occur to my mind right now, Mr. Senator; one
is the remedy open to all of us that if we feel aggrieved and there is no recourse in
the court of justice, we can appeal to public opinion. Another remedy is an action
in the Supreme Court. Of course, as Senator Rodriguez, our President here, has
said one day; 'If you take this matter to the Supreme Court, you will lose, because
until now the Supreme Court has always ruled against any action that would
constitute interference in the business of anybody pertaining to the Senate. The
theory of separation of powers will be upheld by the Supreme Court.' But that
learned opinion of Senator Rodriguez, our President, notwithstanding, I may take
the case to the Supreme Court if my right herein is not respected. I may lose, Mr.
President, but who has not lost in the Supreme Court? I may lose because of the
theory of the separation of powers, but that does not mean, Mr. President, that
what has been done here is pursuant to the provision of the Constitution."
(Congressional Record, Vol. III, p. 339; emphasis supplied.)
This statement did not refer to the nomination, by Senator Primicias, and the
election, by the Senate, of Senators Cuenco and Delgado as members of said Tribunal.
Indeed, said nomination and election took place the day after the aforementioned
statement of Senator Tañada was made. At any rate, the latter announced that he might
"take the case to the Supreme Court if my right here is not respected."
As already adverted to, the objection to our jurisdiction hinges on the question
whether the issue before us is political or not. In this connection, Willoughby lucidly
states:
"Elsewhere in this treatise the well-known and well-established principle is
considered that it is not within the province of the courts to pass judgment upon
the policy of legislative or executive action. Where, therefore, discretionary powers
are granted by the Constitution or by statute, the manner in which those powers
are exercised is not subject to judicial review. The courts, therefore, concern
themselves only with the question as to the existence and extent of these
discretionary powers.
"As distinguished from the judicial, the legislative and executive
departments are spoken of as the political departments of government because in
very many cases their action is necessarily dictated by considerations of public or
political policy. These considerations of public or political policy of course will not
permit the legislature to violate constitutional provisions, or the executive to
exercise authority not granted him by the Constitution or by statute, but, within
these limits, they do permit the departments, separately or together, to recognize
that a certain set of facts exists or that a given status exists, and these
determinations, together with the consequences that ow therefrom, may not be
traversed in the courts." (Willoughby on the Constitution of the United States, Vol.
3, p. 1326; emnphasis supplied.)
To the same effect is the language used in Corpus Juris Secundum, from which
we quote:
"It is well-settled doctrine that political questions are not within the
province of the judiciary, except to the extent that power to deal with such
questions has been conferred upon the courts by express constitutional or
statutory provisions.
"It is not easy, however, to de ne the phrase 'political question', nor to
determine what matters fall within its scope. It is frequently used to designate all
questions that lie outside the scope of the judicial questions, which under the
constitution, are to be decided by the people in their sovereign capacity , or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government." (16 C.J.S., 413; see, also Geauga Lake
Improvement Ass'n. vs. Lozier, 182 N. E. 491, 125 Ohio St. 565; Sevilla vs. Elizalde,
112 F. 2d 29, 72 App. D. C., 108; emphasis supplied.)
Thus, it has been repeatedly held that the question whether certain amendments
to the Constitution are invalid for non-compliance with the procedure therein
prescribed, is not a political one and may be settled by the Courts. 5
In the case of In re McConaughy (119 N.W. 408), the nature of political question
was considered carefully. The Court said:
"At the threshold of the case we are met with the assertion that the
questions involved are political, and not judicial. If this is correct, the court has no
jurisdiction as the certi cate of the state canvassing board would then be nal,
regardless of the actual vote upon the amendment. The question thus raised is a
fundamental one; but it has been so often decided contrary to the view contended
for by the Attorney General that it would seem to be finally settled.
xxx xxx xxx
". . . What is generally meant, when it is said that a question is political, and
not judicial, is that it is a matter which is to be exercised by the people in their
primary political capacity, or that it has been speci cally delegated to some other
department or particular o cer of the government, with discretionary power to
act. See State vs. Cunningham, 81 Wis. 497, 51 L. R. A. 561; In Re Gunn, 50 Kan.
155; 32 Pac. 470, 948, 19 L. R. A. 519; Green vs. Mills, 69 Fed. 852, 16, C. C. A.
516, 30 L. R. A. 90; Fletcher vs. Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A. 143, 42
Am. St. Rep. 220. Thus the Legislature may in its discretion determine whether it
will pass a law or submit a proposed constitutional amendment to the people.
The courts have no judicial control over such matters, not merely because they
involve political question, but because they are matters which the people have by
the Constitution delegated to the Legislature. The Governor may exercise the
powers delegated to him, free from judicial control, so long as he observes the
laws and acts within the limits of the power conferred. His discretionary acts
cannot be controllable, not primarily because they are of a political nature, but
because the Constitution and laws have placed the particular matter under his
control. But every officer under a constitutional government must act according to
law and subject him to the restraining and controlling power of the people, acting
through the courts, as well as through the executive or the Legislature. One
department is just as representative as the other, and the judiciary is the
department which is charged with the special duty of determining the limitations
which the law places upon all o cial action . The recognition of this principle,
unknown except in Great Britain and America, is necessary, to 'the end that the
government may be one of laws and not men' — words which Webster said were
the greatest contained in any written constitutional document." (pp. 411, 417;
emphasis supplied.)
In short, the term "political question" connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. In other words, in the language of
Corpus Juris Secundum (supra), it refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the Legislature or executive
branch of the Government." It is concerned with issues dependent upon the wisdom,
not legality, of a particular measure.
Such is not the nature of the question for determination in the present case. Here,
we are called upon to decide whether the election of Senators Cuenco and Delgado, by
the Senate, as members of the Senate Electoral Tribunal, upon nomination by Senator
Primicias — a member and spokesman of the party having the largest number of votes
in the Senate — on behalf of its Committee on Rules, contravenes the constitutional
mandate that said members of the Senate Electoral Tribunal shall be chosen "upon
nomination . . . of the party having the second largest number of votes" in the Senate,
and hence, is null and void. This is not a political question. The Senate is not clothed
with "full discretionary authority" in the choice of members of the Senate Electoral
Tribunal. The exercise of its power thereon is subject to constitutional limitations which
are claimed to be mandatory in nature. It is clearly within the legitimate province of the
judicial department to pass upon the validity of the proceedings in connection
therewith.
". . . whether an election of public o cers has been in accordance with law
is for the judiciary . Moreover, where the legislative department has by statute
prescribed election procedure in a given situation, the judiciary may determine
whether a particular election has been in conformity with such statute, and,
particularly, whether such statute has been applied in a way to deny or transgress
on constitutional or statutory rights . . ." (16 C. J. S., 439; emphasis supplied.)
It is, therefore, our opinion that we have, not only jurisdiction, but, also, the duty,
to consider and determine the principal issue raised by the parties herein.
II. Is the election of Senators Cuenco and Delgado, by the Senate, as members of
the Electoral Tribunal, valid and lawful?
Section 11 of Article VI of the Constitution, reads:
"The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election,
returns, and quali cations of their respective Members. Each Electoral Tribunal
shall be composed of nine Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief Justice, and the remaining six shall
be Members of the Senate or of the House of Representatives, as the case may
be, who shall be chosen by each House, three upon nomination of the party
having the largest number of votes and three of the party having the second
largest number of votes therein. The Senior Justice in each Electoral Tribunal
shall be its Chairman." (Emphasis supplied.)
It appears that on February 22, 1956, as well as at present, the Senate of the
Philippines consists of twenty-three (23) members of the Nacionalista Party and one
(1) member of the Citizens Party, namely, Senator Tañada, who is, also, the president of
said party. In the session of the Senate held on February 21, 1956, Senator Sabido
moved that Senator Tañada, "the President of the Citizens Party, be given the privilege
to nominate . . . three (3) members" of the Senate Electoral Tribunal (Congressional
Record for the Senate, Vol. III, pp. 328-329), referring to those who, according to the
provision above-quoted, should be nominated by "the party having the second largest
number of votes" in the Senate. Senator Tañada objected formally to this motion upon
the ground: (a) that the right to nominate said members of the Senate Electoral Tribunal
belongs, not to the Nacionalista Party — of which Senator Sabido and the other
Senators are members — but to the Citizens Party, as the one having the second largest
number of votes in the Senate, so that, being devoid of authority to nominate the
aforementioned members of said Tribunal, the Nacionalista Party cannot give it to the
Citizens Party, which, already, has such authority, pursuant to the Constitution; and ( b )
that Senator Sabido's motion would compel Senator Tañada to nominate three (3)
Senators to said Tribunal, although as representative of the minority party in the Senate
he has "the right to nominate one, two or three to the Electoral Tribunal," in his
discretion. Senator Tañada further stated that he reserved the right to determine how
many he would nominate, after hearing the reasons of Senator Sabido in support of his
motion. After some discussion, in which Senators Primicias, Cea, Lim, Sumulong,
Zulueta, and Rodrigo took part, the Senate adjourned until the next morning, February
22, 1956 (Do., do., pp. 329, 330, 332-333, 336, 338, 339, 343).
Then, said issues were debated upon more extensively, with Senator Sumulong,
not only seconding the opposition of Senator Tañada, but, also, maintaining that
"Senator Tañada should nominate only one" member of the Senate, namely, himself, he
being the only Senator who belongs to the minority party in said House (Do., do., pp.
360-364, 369). Thus, a new issue was raised — whether or not one who does not belong
to said party may be nominated by its spokesman, Senator Tañada — on which
Senators Paredes, Pelaez, Rosales and Laurel, as well as the other Senators already
mentioned, expressed their views (Do., do., pp. 345, 349, 350, 354, 358, 364, 375).
Although the deliberations of the Senate consumed the whole morning and afternoon
of February 22, 1956, a satisfactory solution of the question before the Senate
appeared to be remote. So, at 7:40 p. m., the meeting was suspended, on motion of
Senator Laurel, with a view to seeking a compromise formula (Do., do., pp. 377). When
session was resumed at 8:10 p. m., Senator Sabido withdrew his motion above referred
to. Thereupon, Senator Primicias, on behalf of the Nacionalista Party, nominated, and
the Senate elected, Senators Laurel, Lopez and Primicias, as members of the Senate
Electoral Tribunal. Subsequently, Senator Tañada stated:
"On behalf of the Citizens Party, the minority party in this Body, I nominate
the only Citizens Party member in this Body, and that is Senator Lorenzo M.
Tañada."
Without any objection, this nomination was approved by the House. Then,
Senator Primicias stood up and said:
"Now, Mr. President, in order to comply with the provision in the
Constitution, the Committee on Rules of the Senate — and I am now making this
proposal not on behalf of the Nacionalista Party but on behalf of the Committee
on Rules of the Senate — I nominate two other members to complete the
membership of the Tribunal: Senators Delgado and Cuenco."
What took place thereafter appears in the following quotations from the
Congressional Record for the Senate.
"SENATOR TAÑADA. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Quezon.
SENATOR TAÑADA. I would like to record my opposition to the
nominations of the last two named gentlemen, Senators Delgado and Cuenco, not
because I don't believe that they do not deserve to be appointed to the tribunal but
because of my sincere and rm conviction that these additional nominations are
not sanctioned by the Constitution. The Constitution only permits the
Nacionalista Party or the party having the largest number of votes to nominate
three.
"SENATOR SUMULONG. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Rizal.
"SENATOR SUMULONG. For the reasons that I have stated a few moments
ago when I took the oor, I also wish to record my objection to the last
nominations, to the nomination of two additional NP's to the Electoral Tribunal.
EL PRESIDENTE INTERINO. Esta dispuesto el Senado a votar? ( Varios
Senadores: Si.) Los que esten conformes con la nominacion hecha por el
Presidente del Comite de Reglamentos a favor de los Senadores Delgado y
Cuenco para ser miembros del Tribunal Electoral, digan, si. (Varios Senodores:
Si.) Los que no lo esten digan, no (Silencio.) Queda aprobada." (Congressional
Record for the Senate, Vol. III, p. 377; italics supplied.)
Petitioners maintain that said nomination and election of Senators Cuenco and
Delgado — who belong to the Nacionalista Party — as members of the Senate Electoral
Tribunal, are null and void and have been made without power or color of authority, for,
after the nomination by said party, and the election by the Senate, of Senators Laurel,
Lopez and Primicias, as members of said Tribunal, the other Senators, who shall be
members thereof, must necessarily be nominated by the party having the second
largest number of votes in the Senate, and such party is, admittedly, the Citizens Party,
to which Senator Tañada belongs and which he represents.
Respondents allege, however, that the constitutional mandate to the effect that
"each Electoral Tribunal shall be composed of nine (9) members," six (6) of whom "shall
be members of the Senate or of the House of Representatives, as the case may be", is
mandatory; that when — after the nomination of three (3) Senators by the majority
party, and their election by the Senate, as members of the Senate Electoral Tribunal —
Senator Tañada nominated himself only, on behalf of the minority party, he thereby
"waived his right to nominate two more Senators;" that, when Senator Primicias
nominated Senators Cuenco and Delgado, and these respondents were chosen by the
Senate, as members of the Senate Electoral Tribunal, said Senator Primicias and the
Senate merely complied with the aforementioned provision of the fundamental law,
relative to the number of members of the Senate Electoral Tribunal; and, that,
accordingly, Senators Cuenco and Delgado are de jure members of said body, and the
appointment of their co-respondents, Alfredo Cruz, Catalina Cayetano, Manuel Serapio
and Placido Reyes, is valid and lawful.
At the outset, it will be recalled that the proceedings for the organization of the
Senate Electoral Tribunal began with a motion of Senator Sabido to the effect that "the
distinguished gentleman from Quezon, the President of the Citizens Party, be given the
privilege to nominate the three Members" of said Tribunal. Senator Primicias inquired
why the movant had used the word "privilege". Senator Sabido explained that the
present composition of the Senate had created a condition or situation which was not
anticipated by the framers of our Constitution; that although Senator Tañada formed
part of the Nacionalista Party before the end of 1955, he subsequently "parted ways
with" said party; and that Senator Tañada "is the distinguished president of the Citizens
Party," which "approximates the situation desired by the framers of the Constitution"
(Congressional Record for the Senate Vol. III, pp. 329-330). Then Senator Lim
intervened, stating:
"At present Senator Tañada is considered as forming the only minority or
the one that has the second largest number of votes in the existing Senate, is not
that right? And if this is so, he should be given this as a matter of right, not as a
matter of privilege. . . . I don't believe that we should be allowed to grant this
authority to Senator Tañada only as a privilege but we must grant it as a matter
of right." (Id., id., p. 332; emphasis supplied.)
Similarly, Senator Sumulong maintained that "Senator Tañada, as Citizens Party
Senator, has the right and not a mere privilege to nominate," adding that:
". . . the question is whether we have a party here having the second largest
number of votes, and it is clear in my mind that there is such a party, and that is
the Citizens Party to which the gentleman from Quezon belongs. . . . We have to
bear in mind, . . . that when Senator Tañada was included in the Nacionalista
Party ticket in 1953 it was by virtue of a coalition or an alliance between the
Citizens Party and the Nacionalista Party at that time, and I maintain that when
Senator Tañada as head of the Citizens Party entered into a coalition with the
Nacionalista Party, he did not thereby become a Nacionalista because that was a
mere coalition, not a fusion. When the Citizens Party entered into a mere coalition,
that party did not lose its personality as a party separate and distinct from the
Nacionalista. Party. And we should also remember that the certi cate of
candidacy led by Senator Tañada in the 1953 election was one to the effect that
he belonged to the Citizens Party . . .." (Id., id., p. 360; emphasis supplied.)
The debate was closed by Senator Laurel, who remarked, referring to Senator
Tañada:
". . . there is no doubt that he does not belong to the majority in the rst
place, and that, therefore, he belongs to the minority . And whether we like it or not,
that, is the reality of the actual situation — that he is not a Nacionalista now, that
he is the head and the representative of the Citizens Party. I think that on
equitable ground and from the point of view of public opinion, his situation . . .
approximates or approaches what is within the spirit of that Constitution. . . . and
from the point of view of the spirit of the Constitution it would be a good thing if
we grant the opportunity to Senator Tañada to help us in the organization of this
Electoral Tribunal . . .." (Id., id., p. 376; emphasis supplied.)
The foregoing statements and the fact that, thereafter, Senator Sabido withdrew
his motion to grant Senator Tañada the "privilege" to nominate, and said petitioner
actually nominated himself "on behalf of the Citizens Party, the minority party in this
Body" — not only without any objection whatsoever, but, also, with the approval of the
Senate — leave no room for doubt that the Senate has regarded the Citizens Party,
represented by Senator Tañada, as the party having the second largest number of votes
in said House.
Referring, now, to the contention of respondents herein, their main argument in
support of the mandatory character of the constitutional provision relative to the
number of members of the Senate Electoral Tribunal is that the word "shall", therein
used, is imperative in nature and that this is borne out by an opinion of the Secretary of
Justice dated February 1, 1939, pertinent parts of which are quoted at the footnote. 6
Regardless of the respect due its author, as a distinguished citizen and public
o cial, said opinion has little, if any, weight in the solution of the question before this
Court, for the "practical construction of a Constitution is of little, if any, unless it has
been uniform . . .." 6 a Again, "as a general rule, it is only in cases of substantial doubt and
ambiguity that the doctrine of contemporaneous or practical construction has any
application". As a consequence, "where the meaning of a constitutional provision is
clear, a contemporaneous or practical . . . executive interpretation thereof is entitled to
no weight, and will not be allowed to distort or in any way change its natural meaning."
The reason is that "the application of the doctrine of contemporaneous construction is
more restricted as applied to the interpretation of constitutional provisions than when
applied to statutory provisions", and that, "except as to matters committed by the
Constitution itself to the discretion of some other department, contemporary or
practical construction is not necessarily binding upon the courts, even in a doubtful
case." Hence, "if in the judgment of the court, such construction is erroneous and its
further application is not made imperative by any paramount considerations of public
policy, it may be rejected." (16 C. J. S., 71-72; italics supplied.) 6 b
The aforementioned opinion of the Secretary of Justice is not backed up by a
"uniform" application of the view therein adopted, so essential to give thereto the
weight accorded by the rules on contemporaneous constructions. Moreover, said
opinion tends to change the natural meaning of section 11 of Article VI of the
Constitution, which is clear. What is more, there is not the slightest doubt in our mind
that the purpose and spirit of said provisions do not warrant said change and that the
rejection of the latter is demanded by paramount considerations of public policy.
The aw in the position taken in said opinion and by respondents herein is that,
while, it relies upon the compulsory nature of the word "shall", as regards the number of
members of the Electoral Tribunals, it ignores the fact that the same term is used with
respect to the method prescribed for their election, and that both form part of a single
sentence and must be considered, therefore, as integral portions of one and the same
thought. Indeed, respondents have not even tried to show — and we cannot conceive —
why "shall" must be deemed mandatory insofar as the number of members of each
Electoral Tribunal, and should be considered directory as regards the procedure for
their selection. More important still, the history of section 11 of Article VI of the
Constitution and the records of the Convention, refute respondents' pretense, and back
up the theory of petitioners herein.
Commenting on the frame of mind of the delegates to the Constitutional
Convention, when they faced the task of providing for the adjudication of contests
relating to the election, returns and quali cations of members of the Legislative
Department, Dr. Jose M. Aruego, a member of said Convention, says:
"The experience of the Filipino people under the provisions of the organic
laws which left to the lawmaking body the determination of the elections, returns,
and quali cations of its members was not altogether satisfactory. There were
many complaints against the lack of political justice in this determination; for in a
great number of cases, party interests controlled and dictated the decisions. The
undue delay in the dispatch of election contests for legislative seats, the
irregularities that characterized the proceedings in some of them, and the very
apparent injection of partisanship in the determination of a great number of the
cases were decried by a great number of the people as well as by the organs of
public opinion.
"The faith of the people in the uprightness of the lawmaking body in the
performance of this function assigned to it in the organic laws was by no means
great. In fact so blatant was the lack of political justice in the decisions that there
was gradually built up a camp of thought in the Philippines inclined to leave to
the courts the determination of election contests, following the practice in some
countries, like England and Canada.
"Such were the conditions of things at the time of the meeting of the
convention." (The Framing of the Philippine Constitution by Aruego, Vol. I, pp. 257-
258; emphasis supplied.)
This view is shared by distinguished members of the Senate. Thus, in its session
of February 22, 1956, Senator Sumulong declared:
". . . when you leave it to either House to decide election protests involving
its own members, that is virtually placing the majority party in a position to
dictate the decision in those election cases, because each House will be
composed of a majority and a minority, and when you make each House the
judge of every election protest involving any member of that House, you place the
majority in a position to dominate and dictate the decision in the case and result
was, there were so many abuses, there were so many injustices committed by the
majority at the expense and to the prejudice of the minority protestants.
Statements have been made here that justice was done even under the old
system, like that case involving Senator Mabanag, when he almost became a
victim of the majority when he had an election case, and it was only through the
intervention of President Quezon that he was saved from becoming the victim of
majority injustices.
"It is true that justice had sometimes prevailed under the old system, but
the record will show that those cases were few and they were the rare exceptions.
The overwhelming majority of election protests decided under the old system was
that the majority being then in a position to dictate the decision in the election
protest, was tempted to commit as it did commit many abuses and injustices."
(Congressional Record for the Senate, Vol. III, p. 361; emphasis supplied.)
Senator Paredes, a veteran legislator and former Speaker of the House of
Representatives, said:
". . . what was intended in the creation of the electoral tribunal was to
create a sort of collegiate court composed of nine members: three of them
belonging to the party having the largest number of votes, and three from the
party having the second largest number of votes so that these members may
represent the party, and the members of said party who will sit before the electoral
tribunal as protestees. For when it comes to a party, Mr. President, there is ground
to believe that decisions will be made along party lines." (Congressional Record
for the Senate, Vol. III, p. 351; emphasis supplied.)
Senator Laurel, who played an important role in the framing of our Constitution,
expressed himself as follows:
"Now, with reference to the protests or contests relating to the election, the
returns and the quali cations of the members of the legislative bodies, I heard it
said here correctly that there was a time when that was given to the
corresponding chamber of the legislative department. So the election, returns and
quali cations of the members of the Congress or legislative body was entrusted
to that body itself as the exclusive body to determine the election, returns and
quali cations of its members. There was some doubt also expressed as to
whether that should continue or not, and the greatest argument in favor of the
retention of that provision was the fact that was, among other things, the system
obtaining in the United States under the Federal Constitution of the United States,
and there was no reason why that power or that right vested in the legislative
body should not be retained. But it was thought that would make the
determination of this contest, of this election protest, purely political as has been
observed in the past." (Congressional Record for the Senate, Vol. III, p. 376;
emphasis supplied.)
It is interesting to note that not one of the members of the Senate contested the
accuracy of the views thus expressed.
Referring particularly to the philosophy underlying the constitutional provision
quoted above, Dr. Aruego states:
"The defense of the Electoral Commission was based primarily upon the
hope and belief that the abolition of party lines because of the equal
representation in this body of the majority and the minority parties of the National
Assembly and the intervention of some members of the Supreme Court who,
under the proposed constitutional provision, would also be members of the same,
would insure greater political justice in the determination of election contests for
seats in the National Assembly than there would be if the power had been lodged
in the lawmaking body itself. Delegate Francisco summarized the arguments for
the creation of the Electoral Commission in the following words:
"I understand that from the time that this question is placed in the hands of
members not only of the majority party but also of the minority party, there is
already a condition, a factor which would make protests decided in a non-partisan
manner. We know from experience that many times in the many protests tried in
the House or in the Senate, it was impossible to prevent the factor of party from
getting in. From the moment that it is required that not only the majority but also
the minority should intervene in these questions, we have already enough
guarantee that there would be no tyranny on the part of the majority.
'But there is another more detail which is the one which satis es me most,
and that is the intervention of three justices. So that with this intervention of three
justices if there would be any question as to the justice applied by the majority or
the minority, if there would be any fundamental disagreement, or if there would be
nothing but questions purely of party in which the members of the majority as
well as those of the minority should wish to take lightly a protest because the
protestant belongs to one of said parties, we have in this case, as a check upon
the two parties, the actuations of the three justices. In the last analysis, what is
really applied in the determination of electoral cases brought before the tribunals
of justice or before the House of Representatives or the Senate? Well, it is nothing
more than the law and the doctrine of the Supreme Court. If that is the case, there
will be greater skill in the application of the laws and in the application of
doctrines to electoral matters having as we shall have three justices who will act
impartially in these electoral questions.
'I wish to call the attention of my distinguished colleagues to the fact that
in electoral protests it is impossible to set aside party interests. Hence, the best
guarantee, I repeat, for the administration of justice to the parties, for the fact that
the laws will not be applied improperly or incorrectly as well as for the fact that
the doctrines of the Supreme Court will be applied rightfully, the best guarantee
which we shall have, I repeat, is the intervention of the three justices. And with the
formation of the Electoral Commission, I say again, the protestants as well as the
protestees could remain tranquil in the certainty that they will receive the justice
that they really deserve. If we eliminate from this precept the intervention of the
party of the minority and that of the three justices, then we shall be placing
protests exclusively in the hands of the party in power. And I understand,
gentlemen, that in practice that has not given good results. Many have criticized,
many have complained against, the tyranny of the majority in electoral cases . . ..
I repeat that the best guarantee lies in the fact that these questions will be judged
not only by three members of the majority but also by three members of the
minority, with the additional guarantee of the impartial judgment of three justices
of the Supreme Court." (The Framing of the Philippine Constitution by Aruego, Vol.
I, pp. 261-263; emphasis supplied.)
The foregoing was corroborated by Senator Laurel. Speaking for this Court, in
Angara vs. Electoral Commission (63 Phil., 139), he asserted:
"The members of the Constitutional Convention who framed our
fundamental law were in their majority men mature in years and experience. To
be sure, many of them were familiar with the history and political development of
other countries of the world. When, therefore, they deemed it wise to create an
Electoral Commission as a constitutional organ and invested it with the exclusive
function of passing upon and determining the election, returns and quali cations
of the members of the National Assembly, they must have done so not only in the
light of their own experience but also having in view the experience of other
enlightened peoples of the world. The creation of the Electoral Commission was
designed to remedy certain evils of which the framers of our Constitution were
cognizant. Notwithstanding the vigorous opposition of some members of the
Convention to its creation, the plan, as hereinabove stated, was approved by that
body by a vote of 98 against 58. All that can be said now is that, upon the
approval of the Constitution, the creation of the Electoral Commission is the
expression of the wisdom 'ultimate justice of the people.' (Abraham Lincoln, First
Inaugural Address, March 4, 1861.)
"From the deliberations of our Constitutional Convention it is evident that
the purpose was to transfer in its totality all the powers previously exercised by
the legislature in matters pertaining to contested elections of its members, to an
independent and impartial tribunal. It was not so much the knowledge and
appreciation of contemporary constitutional precedents, however, as the long-felt
need of determining legislative contests devoid of partisan considerations which
prompted the people acting through their delegates to the Convention, to provide
for this body known as the Electoral Commission. With this end in view, a
composite body in which both the majority and minority parties are equally
represented to off-set partisan in uence in its deliberations was created, and
further endowed with judicial temper by including in its membership three justices
of the Supreme Court. (Pp. 174-175.) 7
As a matter of fact, during the deliberations of the convention, Delegates
Conejero and Roxas said:
"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir
informacion del Subcomite de Siete.
"El Sr. PRESIDENTE. Que dice el Comite?
"El Sr. ROXAS. Con mucho gusto.
"El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la
mayoria, y otros tres a la minoria y tres a la Corte Suprema, no cree su Señoria
que este equivale practicamente a dejar el asunto a los miembros del Tribunal
Supremo?
"El Sr. ROXAS. Si y no. Creemos que si el tribunal a la Comision esta
constituido en esa forma, tanto los miembros de la mayoria como los de la
minoria asi como los miembros de la Corte Suprema consideraran la cuestion
sobre la base de sus meritos, sabiendo que el partidismo no es su ciente para
dar el triunfo.
"El Sr. CONEJERO. Cree Su Señoria que en un caso como ese, podriamos
hacer que tanto los de la mayoria como los de la minoria prescindieran del
partidismo?
"El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo."
(Angara vs. Electoral Commission, supra, pp. 168-169; emphasis supplied.)
It is clear from the foregoing that the main objective of the framers of our
Constitution in providing for the establishment, rst, of an Electoral Commission, 8 and
then 9 of one Electoral Tribunal for each House of Congress, was to insure the exercise
of judicial impartiality in the disposition of election contests affecting members of the
law making body. To achieve this purpose, two devices were resorted to, namely: ( a)
the party having the largest number of votes, and the party having the second largest
number of votes, in the National Assembly or in each House of Congress, were given
the same number of representatives in the Electoral Commission or Tribunal, so that
they may realize that partisan considerations could not control the adjudication of said
cases, and thus be induced to act with greater impartiality; and (b ) the Supreme Court
was given in said body the same number of representatives as each one of said
political parties, so that the in uence of the former may be decisive and endow said
Commission or Tribunal with judicial temper.
This is obvious from the very language of the constitutional provision under
consideration. In fact, Senator Sabido — who had moved to grant to Senator Tañada the
"privilege" to make the nominations on behalf of the party having the second largest
number of votes in the Senate — agrees with it. As Senator Sumulong inquired:
". . . I suppose Your Honor will agree with me that the framers of the
Constitution precisely thought of creating this Electoral Tribunal so as to prevent
the majority from ever having a preponderant majority in the Tribunal ."
(Congressional Record for the Senate, Vol. III, p. 330; emphasis supplied.)
Senator Sabido replied:
"That is so, . . .." (Id., p. 330.)
Upon further interpelation, Senator Sabido said:
". . . the purpose of the creation of the Electoral Tribunal and of its
composition is to maintain a balance between the two parties and make the
members of the Supreme Court the controlling power so to speak of the Electoral
Tribunal or hold the balance of power. That is the ideal situation ." (Congressional
Record for the Senate, Vol. III, p. 349; emphasis supplied.)
Senator Sumulong opined along the same line. His words were:
". . . The intention is that when the three from the majority and the three
from the minority become members of the Tribunal it is hoped that they will
become aware of their judicial functions, not to protect the protestants or the
protestees. It is hoped that they will act as judges because to decide election
cases is a judicial function. But the framers of the Constitution besides being
learned were men of experience. They knew that even Senators like us are not
angels, that we are human beings, that if we should be chosen to go to the
Electoral Tribunal no one can say that we will entirely be free from partisan
in uence to favor our party, so that in case that hope that the three from the
majority and the three from the minority who will act as judges should result in
disappointment, in case they do not act as judges but they go there and vote
along party lines, still there is the guarantee that they will offset each other and
the result will be that the deciding vote will reside in the hands of the three
Justices who have no partisan motives to favor either the protestees or the
protestants. In other words, the whole idea is to prevent the majority from
controlling and dictating the decisions of the Tribunal and to make sure that the
decisive vote will be wielded not by the Congressmen or Senators who are
members of the Tribunal but will be wielded by the Justices who , by virtue of their
judicial o ces, will have no partisan motives to serve, either protestants or
protestees. That is my understanding of the intention of the framers of the
Constitution when they decided to create the Electoral Tribunal.
xxx xxx xxx
"My idea is that the intention of the framers of the constitution in creating
the Electoral Tribunal is to insure impartiality and independence in its decision,
and that is sought to be done by never allowing the majority party to control the
Tribunal, and secondly by seeing to it that the decisive vote in the Tribunal will be
left in the hands of persons who have no partisan interest or motive to favor
either protestant or protestee." (Congressional Record for the Senate, Vol. III, pp.
362-363, 365-366; emphasis supplied.)
So important in the "balance of powers" between the two political parties in the
Electoral Tribunals, that several members of the Senate questioned the right of the
party having the second largest number of votes in the Senate — and, hence, of Senator
Tañada, as representative of the Citizens Party — to nominate for the Senate Electoral
Tribunal any Senator not belonging to said party. Senators Lim, Sabido, Cea and
Paredes maintained that the spirit of the Constitution would be violated if the nominees
to the Electoral Tribunals did not belong to the parties respectively making the
nominations. 1 0
It is not necessary, for the purpose of this decision, to determine whether the
parties having the largest, and the second largest, number of votes in each House may
nominate, to the Electoral Tribunals, those members of Congress who do not belong to
the party nominating them. It is patent, however, that the most vital feature of the
Electoral Tribunals is the equal representation of said parties therein, and the resulting
equilibrium to be maintained by the Justices of the Supreme Court as members of said
Tribunals. In the words of the members of the present Senate, said feature re ects the
"intent" "purpose", and "spirit of the Constitution", pursuant to which the Senate Electoral
Tribunal should be organized (Congressional Record for the Senate, pp. 330, 337, 348-
9, 350, 351, 355, 358, 362-3, 364, 370, 376).
Now then, it is well settled that "the purpose of all rules or maxims as to the
construction or interpretation of statutes is to discover the true intention of the law"
(82 C. J. S., 526) and that
"As a general rule of statutory construction, the spirit or intention of a
statute prevails over the letter thereof , and whatever is within the spirit of a
statute is within the statute although it is not within the letter thereof, while that
which is within the letter, but not within the spirit of a statute, is not within the
statute; but, where the law is free and clear from ambiguity, the letter of it is not to
be disregarded on the pretext of pursuing its spirit." (82 C. J. S, 613.)
"There is no universal rule or absolute test by which directory provisions in
a statute may in all circumstances be distinguished from those which are
mandatory. However, in the determination of this question, as of every other
question of statutory construction, the prime object is to ascertain the legislative
intent. The legislative intent must be obtained from all the surrounding
circumstances, and the determination does not depend on the form of the statute.
Consideration must be given to the entire statute, its nature, its object, and the
consequences which would result from construing it one way or the other, and the
statute must be construed in connection with other related statutes. Words of
permissive character may be given a mandatory signi cance in order to effect the
legislative intent, and, when the terms of a statute are such that they cannot be
made effective to the extent of giving each and all of them some reasonable
operation, without construing the statute as mandatory, such construction should
be given; . . . On the other hand, the language of a statute, however mandatory in
form, may be deemed directory whenever legislative purpose can best be carried
out by such construction, and the legislative intent does not require a mandatory
construction; but the construction of mandatory words as directory should not be
lightly adopted and never where it would in fact make a new law instead of that
passed by the legislature. . . . Whether a statute is mandatory or directory depends
on whether the thing directed to be done is of the essence of the thing required, or
is a mere matter of form, and what is a matter of essence can often be
determined only by judicial construction. Accordingly, when a particular provision
of a statute relates to some immaterial matter, as to which compliance with the
statute is a matter of convenience rather than substance, or where the directions
of a statute are given merely with a view to the proper, orderly, and prompt
conduct of business, it is generally regarded as directory, unless followed by
words of absolute prohibition; and a statute is regarded as directory where no
substantial rights depend on it, no injury can result from ignoring it, and the
purpose of the legislature can be accomplished in a manner other than that
prescribed, with substantially the same result. On the other hand, a provision
relating to the essence of the thing to be done, that is, to matters of substance, is
mandatory, and when a fair interpretation of a statute, which directs acts or
proceedings to be done in a certain way, shows that the legislature intended a
compliance with such provision to be essential to the validity of the act or
proceeding, or when same antecedent and prerequisite conditions must exist prior
to the exercise of power, or must be performed before certain other powers can be
exercised, the statute must be regarded as mandatory. (Id., pp. 869-874.) (See,
also, Words and Phrases, Vol. 26, pp. 463- 467; emphasis supplied.)
What has been said above, relative to the conditions antecedent to, and
concomitant with, the adoption of section 11 of Article VI of the Constitution, reveals
clearly that its framers intended to prevent the majority party from controlling the
Electoral Tribunals, and that the structure thereof is founded upon the equilibrium
between the majority and the minority parties therein, with the Justices of the Supreme
Court, who are members of said Tribunals, holding the resulting balance of power. The
procedure prescribed in said provision for the selection of members of the Electoral
Tribunals is vital to the role they are called upon to play. It constitutes the essence of
said Tribunals. Hence, compliance with said procedure is mandatory, and acts
performed in violation thereof are null and void. 1 1
It is true that the application of the foregoing criterion would limit the
membership of the Senate Electoral Tribunal, in the case at bar, to seven (7), instead of
nine (9), members; but, it is conceded that the present composition of the Senate was
not foreseen by the framers of our Constitution (Congressional Record for the Senate,
Vol. III, pp. 329, 342, 349, 354, 359, 375). Furthermore, the spirit of the law prevails over
its letter, and the solution herein adopted maintains the spirit of the Constitution, for
partisan considerations can not be decisive in a tribunal consisting of three (3) Justices
of the Supreme Court, three (3) members nominated by the majority party and either
one (1) or two (2) members nominated by the party having the second largest number
of votes in the House concerned.
Upon the other hand, what would be the result of respondents' contention if
upheld? Owing to the fact that the Citizens Party 1 2 has only one member in the Upper
House, Senator Tañada felt he should nominate, for the Senate Electoral Tribunal, only
said member of the Citizens Party. The same is, thus, numerically handicapped, vis-a-vis
the majority party, in said Tribunal. Obviously, Senator Tañada did not nominate other
two Senators, because, otherwise, he would worsen the already disadvantageous
position, therein, of the Citizens Party. Indeed, by the aforementioned nomination and
election of Senators Cuenco and Delgado, if the same were sanctioned, the
Nacionalista Party would have ve (5) members in the Senate Electoral Tribunal, as
against one (1) member of the Citizens Party and three members of the Supreme Court.
With the absolute majority thereby attained by the majority party in said Tribunal, the
philosophy underlying the same would be entirely upset. The equilibrium between the
political parties therein would be destroyed. What is worst, the decisive moderating
role of the Justices of the Supreme Court would be wiped out, and, in lieu thereof, the
door would be thrown wide open for the predominance of political considerations in
the determination of election protests pending before said Tribunal, which is precisely
what the fathers of our Constitution earnestly strove to forestall. 1 3
This does not imply that the honesty, integrity or impartiality of Senators Cuenco
and Delgado are being questioned. As a matter of fact, when Senator Tañada objected
to their nomination, he explicitly made of record that his opposition was based, not
upon their character, but upon the principle involved. When the election of members of
Congress to the Electoral Tribunal is made dependent upon the nomination of the
political parties above referred to, the Constitution thereby indicates its reliance upon
the method of selection thus established, regardless of the individual qualities of those
chosen therefor. Considering the wealth of experience of the delegates to the
Convention, all lawyers of great note, as veteran politicians and as leaders in other
elds of endeavor, they could not, and did not, ignore the fact that the Constitution
must limit itself to giving general patterns or norms of action. In connection,
particularly, with the composition of the Electoral Tribunals, they believed that, even the
most well meaning individuals often nd it di cult to shake off the bias and prejudice
created by political antagonisms and to resist the demands of political exigencies, the
pressure of which is bound to increase in proportion to the degree of predominance of
the party from which it comes. As above stated, this was con rmed by distinguished
members of the present Senate. (See pp. 25-28, 33, 34, supra.)
In connection with the argument of the former Secretary of Justice to the effect
that when "there is no minority party represented in the Assembly, the necessity for
such a check by the minority disappears", the following observations of the petitioners
herein are worthy of notice:
"Under the interpretation espoused by the respondents, the very frauds or
terrorism committed by a party would establish the legal basis for the nal
destruction of minority parties in the Congress at least. Let us suppose, for
example, that in the Senate, the 15 or 16 senators with unexpired terms belong to
the party A. In the senatorial election to ll the remaining 8 seats, all the 8
candidates of party A are proclaimed elected through alleged fraud and/or
terrorism. (The ouster of not less than 3 senators-elect in the elections held since
liberation attests to the reality of election frauds and terrorism in our country.)
There being no senator or only one senator belonging to the minority, who would
sit in judgment on the election candidates of the minority parties? According to
the contention of the respondents, it would be a Senate Electoral Tribunal made
up of three Supreme Court Justices and 5 or 6 members of the same party A
accused of fraud and terrorism. Most respectfully, we pray this Honorable Court
to reject an interpretation that would make of a democratic constitution the very
instrument by which a corrupt and ruthless party could intrench itself in power in
the legislature and thus destroy democracy in the Philippines.
xxx xxx xxx
". . . When there are no electoral protests filed by the minority party , or when
the only electoral protests led are by candidates of the majority against
members-elect of the same majority party, there might be no objection to the
statement. But if electoral protests are led by candidate of the minority party , it
is at this point that a need for a check on the majority party is greatest, and
contrary to the observation made in the above-quoted opinion, such a check is a
function that cannot be successfully exercised by the 3 Justices of the Supreme
Court, for the obvious and simple reason that they could easily be outvoted by the
6 members of the majority party in the Tribunal.
xxx xxx xxx
"In the case of the cited opinion of Secretary Abad Santos rendered in
1939, it did not appear that there were minority party candidates who were
adversely affected by the ruling of the Secretary of Justice and who could have
brought a test case to court." (Emphasis supplied.)
The defenses of waiver and estoppel set up against petitioner Tañada are
untenable. Although "an individual may waive constitutional provisions intended for his
bene t", particularly those meant for the protection of his property, and, sometimes,
even those tending "to secure his personal liberty", the power to waive does not exist
when "public policy or public morals" are involved. (11 Am. Jur. 765; I Cooley's
Constitutional Limitations, pp. 368-371). The procedure outlined in the Constitution for
the organization of the Electoral Tribunals was adopted in response to the demands of
the common weal, and it has been held that "where a statute is founded on public
policy, those to whom it applies should not be permitted to waive its provisions" (82 C.
J. S., 874). Besides, there can be no waiver without an intent to such effect, which
Senator Tañada did not have. Again, the alleged waiver or exhaustion of his rights does
not justify the exercise thereof by a person or party other than that to which it is vested
exclusively by the Constitution.
The rule on estoppel is that "whenever a party has, by his declaration, act or
omissions, intentionally and deliberately led another to believe a particular thing true,
and to act upon such belief, he cannot, in a litigation arising out of such declaration, act
or omission, be permitted to falsify it" (Rule 68, sec. 68 [ a], Rules of Court). In the case
at bar, petitioner Senator Tañada did not lead the Senate to believe that Senator
Primicias could nominate Senators Cuenco and Delgado. On the contrary, said
petitioner repeatedly asserted that his was the exclusive right to make the nomination.
He, likewise, speci cally contested said nomination of Senators Cuenco and Delgado.
Again, the rule on estoppel applies to questions of fact, not of law, about the truth of
which the other party is ignorant (see Moran's Comments on the Rules of Court, Vol. 3,
pp. 490, 495). Such is not the nature of the situation that confronted Senator Tañada
and the other members of the Senate. Lastly, the case of Zandueta vs. De la Costa (66
Phil., 615), cited by respondents, is not in point. Judge Zandueta assumed o ce by
virtue of an appointment, the legality of which he later on assailed. In the case at bar,
the nomination and election of Senator Tañada as member of the Senate Electoral
Tribunal was separate, distinct and independent from the nomination and election of
Senators Cuenco and Delgado.
In view of the foregoing, we hold that the Senate may not elect, as members of
the Senate Electoral Tribunal, those Senators who have not been nominated by the
political parties speci ed in the Constitution; that the party having the largest number
of votes in the Senate may nominate not more than three (3) members thereof to said
Electoral Tribunal; that the party having the second largest number of votes in the
Senate has the exclusive right to nominate the other three (3) Senators who shall sit as
members in the Electoral Tribunal; that neither these three (3) Senators, nor any of
them, may be nominated by a person or party other than the one having the second
largest number of votes in the Senate or its representative therein; that the Committee
on Rules for the Senate has no standing to validly make such nomination and that the
nomination of Senators Cuenco and Delgado by Senator Primicias, and the election of
said respondents by the Senate, as members of said Tribunal, are null and void ab initio.
As regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and
Placido Reyes, we are not prepared to hold, however, that their appointments were null
and void. Although recommended by Senators Cuenco and Delgado, who are not lawful
members of the Senate Electoral Tribunal, they were appointed by its Chairman,
presumably, with the consent of the majority of the de jure members of said body 1 4 or,
pursuant to the Rules thereof. At any rate, as held in Suanes vs. Chief Accountant
(supra), the selection of its personnel is an internal matter falling within the jurisdiction
and control of said body, and there is every reason to believe that it will, hereafter, take
appropriate measures, in relation to the four (4) respondents abovementioned,
conformably with the spirit of the Constitution and of the decision in the case at bar.
Wherefore, judgment is hereby rendered declaring that respondents Senators
Mariano Jesus Cuenco and Francisco A. Delgado have not been duly elected as
Members of the Senate Electoral Tribunal, that they are not entitled to act as such and
that they should be, as they are hereby, enjoined from exercising the powers and duties
of Members of said Electoral Tribunal and from acting in such capacity in connection
with Senate Electoral Case No. 4 thereof. With the quali cation stated above, the
petition is dismissed, as regards respondents Alfredo Cruz, Catalina Cayetano, Manuel
Serapio and Placido Reyes. Without special pronouncement as to costs. It is so
ordered.
Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Reyes, J. B. L. and Felix,
JJ., concur.
Separate Opinions
PARAS , C.J., dissenting :
In 1939, Section (4) of Article VI of the Philippine Constitution provided that

"There shall be an Electoral Commission composed of three Justices of the Supreme
Court designated by the Chief Justice, and of six members chosen by the National
Assembly, three of whom shall be nominated by the party having the largest number of
votes, and three by the party having the second largest number of votes therein." As all
the members of the National Assembly then belonged to the Nacionalista Party and a
belief arose that it was impossible to comply with the constitutional requirement that
three members of the Electoral Commission should be nominated by the party having
the second largest number of votes, the opinion of the Secretary of Justice was sought
on the proper interpretation of the constitutional provision involved. Secretary of
Justice Jose A. Santos accordingly rendered the following opinion:
"Sir:
"I have the honor to acknowledge the receipt of your letter of January 24,
1939, thru the o ce of His Excellency, the President, in which you request my
opinion as 'to the proper interpretation of the following provision of Section (4) of
Article VI of the Philippine Constitution':
'There shall be an Electoral Commission composed of three Justices of the
Supreme Court designated by the Chief Justice, and of six members chosen by
the National Assembly, three of whom shall be nominated by the party having the
largest number of voter, and three by the party having the second largest number
of votes therein.'
"You state that 'as all the members of the present National Assembly
belong to the Nacionalista Party, it is impossible to comply with the last part of
the provision which requires that three members shall be nominated by the party
having the second largest number of votes in the Assembly.'
"The main features of the constitutional provision in question are: (1) that
there shall be an Electoral Commission composed of three Justices of the
Supreme Court designated by the Chief Justice, and of six members chosen by
the National Assembly; and that (2) of the six members to be chosen by the
National Assembly, three shall be nominated by the party having the largest
number of votes and three by the party having the second largest number of
votes.
"Examining the history of the constitutional provision, I nd that in the rst
two drafts it was provided that the Electoral Commission shall be composed of
'three members elected by the members of the party having the largest number of
votes, three elected by the members of the party having the second largest
number of votes, and three justices of the Supreme Court . . . (Aruego, The
Framing of the Phil. Const., pp. 260-261). But as nally adopted by the
Convention, the Constitution explicitly states that there shall be 'six members
chosen by the National Assembly, three of whom shall be nominated by the party
having the largest number of votes, and three by the party having the second
largest number of votes' (Aruego, The Framing of the Phil. Const., pp. 271-272).
"From the foregoing changes in the phraseology of the provision, it is
evident that the intention of the framers of our Constitution was that there should
invariably be six members from the National Assembly. It was also intended to
create a non-partisan body to decide any partisan contest that may be brought
before the Commission. The primary object was to avoid decision based chie y if
not exclusively on partisan considerations.
"The procedure or manner of nomination cannot possibly affect the
constitutional mandate that the Assembly is entitled to six members in the
Electoral Commission. When for lack of a minority representation in the Assembly
the power to nominate three minority members cannot be exercised, it logically
follows that the only party in the Assembly may nominate three others, otherwise
the explicit mandate of the Constitution that there shall be six members from the
National Assembly would be nullified.
"In other words, uctuations in the total membership of the Commission
were not and could not have been intended. We cannot say that the Commission
should have nine members during one legislative term and six members during
the next. Constitutional provisions must always have a consistent application.
The membership of the Commission is intended to be xed and not variable and
is not dependent upon the existence or non-existence of one or more parties in the
Assembly.
"'A cardinal rule in dealing with Constitutions is that they should
receive a consistent and uniform interpretation, so they shell not be taken
to mean one thing at one time and another thing at another time, even
though the circumstances may have so changed as to make a different
rule seem desirable (11 Am. Jur. 659).
"It is undisputed of course that the primary purpose of the Convention in
giving representation to the minority party in the Electoral Commission was to
safeguard the rights of the minority party and to protect their interests, especially
when the election of any member of the minority party is protected. The basic
philosophy behind the constitutional provision was to enable the minority party to
act as a check on the majority in the Electoral Commission, with the members of
the Supreme Court as the balancing factor. Inasmuch, however, as there is no
minority party represented in the Assembly, the necessity for such a check by the
minority party disappears. It is a function that is expected to be exercised by the
three Justices of the Supreme Court.
"To summarize, considering the plain terms of the constitutional provision
in question, the changes that it has undergone since it was rst introduced until
nally adopted by the convention, as well as the considerations that must have
inspired the Constitutional Convention in adopting it as it is, I have come to the
conclusion that the Electoral Commission should be composed of nine members,
three from the Supreme Court and six chosen by the National Assembly to be
nominated by the party in power, there being no other party entitled to such
nomination."
Pursuant to the foregoing opinion of February 1, 1939, the Electoral Commission
was formally organized, with six members of the National Assembly all belonging to the
same party and three Justices of the Supreme Court. Constitutional amendments were
introduced and duly adopted in 1940, and the Electoral Commission was replaced by
an Electoral Tribunal for each house of Congress. It is now provided that "Each
Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices
of the Supreme Court to be designated by the Chief Justice, and the remaining six shall
be Members of the Senate or of the House of Representatives, as the case may be, who
shall be chosen by each House, three upon nomination of the party having the largest
number of votes and three of the party having the second largest number of votes
therein. The senior Justice in each Electoral Tribunal shall be its Chairman." (Article VI,
Section 11, of the Constitution.)
If there was any doubt on the matter, the same was removed by the amendment
of 1940 the framers of which may be assumed to have been fully aware of the one-
party composition of the former National Assembly which gave rise to the
abovequoted opinion of the Secretary of Justice. When instead of wording the
amendment in such a form as to nullify said opinion, Section 11 of Article VI of the
Constitution not only did not substantially depart from the original constitutional
provision but also positively and expressly ordains that "Each Electoral Tribunal shall be
composed of nine Members," the intent has become clear and mandatory that at all
times the Electoral Tribunal shall have nine Members regardless of whether or not two
parties make up each house of Congress.
It is very signi cant that while the party having the second largest number of
votes is allowed to nominate three Members of the Senate or of the House of
Representatives, it is not required that the nominees should belong to the same party.
Considering further that the six Members are chosen by each house, and not by the
party or parties, the conclusion is inescapable that party a liation is neither controlling
nor necessary.
Under the theory of the petitioners, even if there were su cient Members
belonging to the party having the second largest of votes, the latter may nominate less
than three or none at all; and the Chief Justice may similarly designate less than three
Justices. If not absurd, this would frustrate the purpose of having an ideal number in
the composition of the Electoral Tribunal and guarding against the possibility of
deadlocks. It would not be accurate to argue that the Members of the Electoral Tribunal
other than the Justices of the Supreme Court would naturally vote along purely partisan
lines, checked or scalized only by the votes of the Justices; otherwise membership in
the Tribunal may well be limited to the Justices of the Supreme Court and six others
who are not Members of the Senate or of the House of Representatives. Upon the other
hand, the framers of the Constitution — not insensitive to some such argument — still
had reposed their faith and con dence in the independence, integrity and uprightness
of the Members of each House who are to sit in the Electoral Tribunals and thereby
expected them, as does everybody, to decide jointly with the Justices of the Supreme
Court election contests exclusively upon their merits.
In view of the failure or unwillingness of Senator Lorenzo M. Tañada of the
Citizens Party, the party having the second largest number of votes in the Senate, to
nominate two other Members of the Electoral Tribunal, the Senate was justi ed, in
obedience to the constitutional mandate, to choose — as it did — said two Members.
I vote to dismiss the petition.
Endencia, J., concurs.
LABRADOR , J., dissenting :
I dissent and herewith proceed to explain my reasons therefor.

The constitutional provision, in pursuance of which Senators Cuenco and
Delgado were elected by the Senate members of the Senate Electoral Tribunal is as
follows:
"The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election,
returns, and quali cations of their respective Members. Each Electoral Tribunal
shall be composed of nine Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief Justice, and the remaining six shall
be Members of the Senate or of the House of Representatives, as the case may
be, who shall be chosen by each House, three upon nomination of the party
having the largest number of votes and three of the party having the second
largest number of votes therein. The Senior Justice in each Electoral Tribunal
shall be its Chairman." (Section II, Article VI of the Constitution.)
I hold that the above provision, just as any other constitutional provision, is
mandatory in character and that this character is true not only of the provision that nine
members shall compose the tribunal but also that which de nes the manner in which
the members shall be chosen. Such a holding is in accord with well-settled rules of
statutory construction.
"As a general proposition, there is greater likelihood that constitutional
provisions will be given mandatory effect than is true of any other class of
organic law. Indeed, such a construction accords with the generally
acknowledged import of constitutional at; that its character is such as to require
absolute compliance in all cases without exception. And the very principles of our
institutions, involving as they do concepts of constitutional supremacy, are such
as to form reasonable grounds for a presumption that the framers of a
constitution intended that just such e cacy be given to it . . .." (Sec. 5807,
Sutherland Statutory Construction, Vol. 3, p. 84.)
The majority holds that as Senator Tañada, the only member of the Senate who
does not belong to the Nacionalista Party, has refused to exercise the constitutional
privilege afforded him to nominate the two other members, the Senate may not elect
said two other members. And the reason given for this ruling is the presumed intention
of the constitutional provision to safeguard the interests of the minority. This holding is
subject to the following fundamental objections. In the rst place, it renders nugatory
the provision which xes the membership of the Senate Electoral Tribunal at nine, a
provision which is admittedly a mandatory provision. In the second place, it denies to
the Senate the power that the constitutional provision expressly grants it, i.e., that of
electing the members of the Electoral Tribunal; so in effect this right or prerogative is
lodged, as a consequence of the refusal of the minority member to nominate, in the
hands of said member of the minority, contrary to the constitutional provision. In the
third place, it would make the supposedly procedural provision, the process of
nomination lodged in the minority party in the Senate, superior to and paramount over
the power of election, which is lodged in the whole Senate itself. So by the ruling of the
majority, a procedural provision overrides a substantive one and renders nugatory the
other more important mandatory provision that the Electoral Tribunal shall be
composed of nine members. In the fourth place, the majority decision has by
interpretation inserted a provision in the Constitution which the Constitutional
Convention alone had the power to introduce, namely, a proviso to the effect that if the
minority fails or refuses to exercise its privilege to nominate all the three members, the
membership of the Electoral Tribunal shall thereby be correspondingly reduced. This
arrogation of power by us is not justified by any rule of law or reason.
I consider the opinion of the Senate that the refusal of Senator Tañada to
nominate the two other members must be construed as a waiver of a mere privilege,
more in consonance not only with the constitutional provision as a whole, but with the
dictates of reason. The above principle (of waiver) furnishes the remedy by which two
parts of the constitutional provision, that which xes membership at nine and that
which outlines the procedure in which said membership of nine may be elected, can be
reconciled. Well known is the legal principle that provisions which in their application
may nullify each other should be reconciled to make them both effective, if the
reconciliation can be effected by the application of other legal principles. The
reconciliation is brought about in this case by the principle of waiver.
While I agree with the majority that it is the duty of this Court to step in, when a
constitutional mandate is ignored, to enforce said mandate even as against the other
coordinate departments, this is not the occasion for it to do so, for to say the least it
does not clearly appear that the form and manner in which the Senate exercised its
expressly recognized power to elect its members to the Senate Electoral Tribunal has
been clearly violative of the constitutional mandate.
Senators Cuenco and Delgado not having been duly elected as members of the
Senate Electoral Tribunal, are not entitled to act as such. Petition dismissed as regards
respondents Cruz, Cayetano, Serapio and Reyes.
Footnotes
1. Casanovas vs. Hord, 8 Phil., 125; Omo vs. Insular Gov't., 11 Phil., 67; Weigall vs. Shuster, 11
Phil., 340; Barrameda vs. Moir, 25 Phil., 44; Hamilton vs. McGirr, 30 Phil., 563;
Compañia Gral. de Tabacos vs. Board of Public Utility Commissioners, 34 Phil., 136;
Central Capiz vs. Ramirez, 40 Phil., 883; Concepcion vs. Paredes, 42 Phil., 599;
McDaniel vs. Apacible, 42 Phil., 749; U. S. vs. Ang Tang Ho, 43 Phil., 1; People vs.
Pomar, 46 Phil., 440; Agcaoili vs. Suguitan, 48 Phil., 676; Gov't. vs. Springer, 50 Phil.,
259; Gov't. vs. Agoncillo, 50 Phil., 348; Gov't. vs. El Hogar Filipino, 50 Phil., 399; Manila
Electric vs. Pasay Transp., 57 Phil., 600; Angara vs. Electoral Commission, supra;
People vs. Vera, 65 Phil., 56; Vargas vs. Rilloraza, 45 Off. Gaz., 3847; Endencia vs.
David, 49 Off. Gaz., 4822; Rutter vs. Esteban, 49 Off. Gaz., 1807; Comm. Investment vs.
Garcia, 49 Off. Gaz., 1801; Marbury vs. Madison, 1 Cranch 137; Ex Parte Garland, 4
Wall. 333; Hepburn vs. Griswold, 8 Wall. 603; Knox vs. Lee, 12 Wall. 457; Civil Rights
Cases [U. S. vs. M. Stanley; U. S. vs. M. Ryan, U. S. vs. S. Nichols; U. S. vs. Singleton;
Robinson vs. Menphis and Charleston Railroad Co.], 109 U. S. 3 Pollock vs. Farmers'
Loan and Trust Co. 157 U. S. 429, 158 U. S. 601; Fairbanks vs. U. S., 181 U. S. 286.
2. Which, insofar as pertinent to the issues in the case at bar, is substantially identical to each
of the Electoral Tribunals under the Constitution as amended.
3. Araneta vs. Dinglasan, Barredo vs. Commission on Elections, and Rodriguez vs. Treasurer
of the Philippines, 84 Phil., 368, 45 Off. Gaz., 4411, 4457; Nacionalista Party vs.
Bautista, 85 Phil., 101, 47 Off. Gaz., 2356; Lacson vs. Romero, 84 Phil., 740, 47 Off.
Gaz., 1778; De los Santos vs. Mallare, 87 Phil., 289, 48 Off. Gaz., 1787; Lacson vs.
Roque, 92 Phil., 456, 49 Off. Gaz., 93; Jover Ledesma vs. Borra, 93 Phil., 506, 49 Off.
Gaz., 2765; Ramos vs. Avelino, 97 Phil., 844, 51 Off. Gaz., 5607.
4. "From the very nature of the American system of government with Constitutions prescribing
the jurisdiction and powers of each of the three branches of government, it has devolved
on the judiciary to determine whether the acts of the other two departments are in
harmony with the fundamental law. All the departments of the government are
unquestionably entitled and compelled to judge of the Constitution for themselves; but,
in doing so, they act under the obligations imposed in the instrument, and in the order of
time pointed out by it. When the judiciary has once spoken, if the acts of the other two
departments are held to be unauthorized or despotic, in violation of the Constitution or
the vested rights of the citizen, they cease to be operative or binding.
xxx xxx xxx
"Since the Constitution is intended for the observance of the judiciary as well as the
other departments of government and the judges are sworn to support its provisions,
the courts are not at liberty to overlook or disregard its commands. It is their duty in
authorized proceedings to give effect to the existing Constitution and to obey all
constitutional provisions irrespective of their opinion as to the wisdom of such
provisions.
"In accordance with principles which are basic, the rule is xed that the duty in a
proper case to declare a law unconstitutional cannot be declined and must be
performed in accordance with the deliberate judgment of the tribunal before which the
validity of the enactment is directly drawn into question. When it is clear that a statute
transgresses the authority vested in the legislature by the Constitution, it is the duty of
the courts to declare the act unconstitutional because they cannot shrink from it
without violating their oaths of o ce . This duty of the courts to maintain the
Constitution as the fundamental law of the state is imperative and unceasing; and, as
Chief Justice Marshal said, whenever a statute is in violation of the fundamental law,
the courts must so adjudge and thereby give effect to the Constitution. Any other
course would lead to the destruction of the Constitution. Since the question as to the
constitutionality of a statute is a judicial matter, the courts will not decline the exercise
of jurisdiction upon the suggestion that action might be taken by political agencies in
disregard of the judgment of the judicial tribunals." (11 Am. Jur., pp. 712-713, 713- 715;
italics supplied.).
5. Rich vs. Board of Canvassers, 59 N. W. 183; State vs. McBride, 29 Am. Dec. 636; Collier vs.
Frierson, 24 Ala. 100; State vs. Swift, 69 Ind. 505; State vs. Timme, 11 N. W. 785;
Prohibition and Amendment Cases, 24 Kan. 700; Kadderly vs. Portland, 74 Pac. 710;
Koehler vs. Hill, 14 N. W. 738; State vs. Brockhart, 84 N. W. 1064; University vs. McIver,
72 N. C. 76; Westinghausen vs. People, 6 N. W. 641; State vs.Powell, 27 South, 927;
Bott vs. Wurtz, 43 Atl. 744; Rice vs. Palmer, 96 S. W. 396; State vs. Tooker, 37 Pac. 840.
6. "The procedure or manner of nomination cannot possibly affect the constitutional mandate
that the Assembly is entitled to six members in the Electoral Commission. When for
lack of a minority representation in the Assembly the power to nominate three minority
members cannot be exercised, it logically follows that the only party in the Assembly
may nominate three others, otherwise the explicit mandate of the Constitution that
there shall be six members from the National Assembly would be nullified.
"In other words, uctuations in the total membership of the Commission were not and
could have been intended. We cannot say that the Commission should have nine
members during one legislative term and six members during the next. Constitutional
provisions must always have a consistent application. The membership of the
Commission is intended to be xed and not variable and is not dependent upon the
existence or non-existence of one or more parties in the Assembly.
'A cardinal rule in dealing with Constitutions is that they should receive a consistent
and uniform interpretation, so they shall not be taken to mean one thing at one
time and another thing at another time, even though the circumstances may
have so changed as to make a different rule seem desirable (11 Am. Jur. 659).'
"It is undisputed of course that the primary purpose of the Convention in giving
representation to the minority party in the Electoral Commission was to safeguard the
rights of the minority party and to protect their interests, especially when the election of
any member of the minority party is protected. The basic philosophy behind the
constitutional provision was to enable the minority party to act as a check on the
majority of the Electoral Commission, with the members of the Supreme Court as the
balancing factor. Inasmuch, however, as there is no minority party represented in the
Assembly, the necessity for such a check by the minority party disappears. It is a
function that is expected to be exercised by the three Justices of the Supreme Court.
"To summarize, considering the plain terms of the constitutional provision in question,
the changes that it has undergone since it was rst introduced until nally adopted by
the Convention, as well as the considerations that must have inspired the
Constitutional Convention in adopting it as it is, I have come to the conclusion that the
Electoral Commission should be composed of nine members, three from the Supreme
Court and six chosen by the National Assembly to be nominated by the party in power,
there being no other party entitled to such nomination." Annex A to the Answers pp. 2-3.
6a. Since 1939, when said opinion was rendered, the question therein raised has not been taken
up or discussed, until the events leading to the case at bar (in February 1956).
6b. Thus, in Suanes vs. Chief Accountant (supra) - in which the respondents maintained that
the Electoral Commission formed part of the National Assembly, citing in support
thereof the principle of contemporaneous and practical construction - this Court
deemed it unnecessary to refute the same in order to adopt the opposite view.
7. Senator Laurel reiterated this view on the oor of the Senate, on February 22, 1956, in the
following language:
"And hence this provision that we nd in the Constitution, three to represent, in the
manner prescribed in the Constitution, the party that received the highest number of
votes, meaning the majority party which is the Nacionalista Party now, and three to
represent the party receiving the next highest number of votes therein, meaning the
minority party, the party receiving the next highest number of votes. But there was a
great deal of opinion that it would be better if this political organization, so far as the
legislative department is concerned, could be tempered by a sort of a judicial re ection
which could be done by drafting three, as to each Electoral Tribunal, from the Supreme
Court. And that, I think, was the reason because a great majority of the delegates to the
constitutional convention accepted that principle. That is why we have nine members
in each electoral tribunal, in the House and in the Senate. And one reason that I
remember then and I am speaking from memory, Mr. President, was that it is likely that
the three members representing a party would naturally favor the protestants or
protestees, and so on. So it would be better that even on that hypothesis or on that
supposition it would be better, in case they annul each other because three votes in
favor or three votes against, depending on the party of the protestants or the
protestees, that the Supreme Court decide the case because then it would be a judicial
decision in reality. Another reason is founded on the theory that the Justices of the
Supreme Court are supposed to be beyond pressure, beyond in uence, although that
may not be true. But having reached the highest judicial position of the land, these
persons would likely act impartially." (Congressional Record for the Senate, Vol. III, p.
376.)
8. When the legislative power was vested in a unicameral body, known as the National
Assembly.
9. Upon the substitution of the National Assembly by a bicameral Congress, consisting of the
Senate and the House of Representatives.
10. Senator Lim said:
"But in the spirit, Your Honor can see very well that those three should belong to the
party having the second largest number of votes, precisely, as Your Honor said, to
maintain equilibrium because partisan considerations naturally enter into the mind and
heart of a senator belonging to a particular party. Although grammatically, I agree with
Your Honor, Your Honor can see that the spirit of the provision of the Constitution is
clear that the three must come from the party having the highest number of votes and
the other three nominated must belong to the party having the second highest number
of votes. Your Honor can see the point. If we allow Your Honor to back up your
argument that equilibrium should be maintained, because partisan considerations
enter when one is with the majority party, and that no party should prevail, Your Honor
should also have to consider that the spirit of the Constitution is precisely to obviate
that to the extent that only three can be nominated from the party having the largest
number of votes and three from the party having the second largest number of votes."
(Congressional Record of the Senate, Vol. III, p. 337; emphasis supplied.).
The statement of Senator Sabido was:
". . .the purpose of the creation of the Electoral Tribunal and of its composition is to
maintain a balance between the two parties and make the members of the Supreme
Court the controlling power so to speak of the Electoral Tribunal or hold the balance of
power. That is the ideal situation."
xxx xxx xxx
". . . I said that the ideal composition in the contemplation of the framers of the
Constitution is that those participating in the electoral tribunal shall belong to the
members of the party who are before the electoral tribunal either as protestants or
protestees, in order to insure impartiality in the proceeding and justice in the decision
that may be nally rendered." (Congressional Record for the Senate, Vol. III, pp. 349,
352; emphasis supplied.)
Senator Cea declared:

". . . the original purpose of the Constitution is to nominate only members of the two
major parties in the Senate in the Electoral Tribunal ." (Congressional Record for the
Senate, Vol. III, p. 350; emphasis supplied.)
The words of Senator Paredes were:
". . .what was intended in the creation of the electoral tribunal was to create a sort of
collegiate court composed of nine members three of them belonging to the party
having largest number of votes, and three from the party having the second largest
number of votes so that these members may represent the party, and the members of
said party who will sit before the electoral tribunal as protestees. For when it comes to
a party, Mr. President, there is ground to believe that decisions will be made along party
lines." (Congressional Record for the Senate, Vol. III, p. 351; emphasis supplied.)
11. The need of adopting this view is demanded, not only by the factors already adverted to,
but, also, by the fact that constitutional provisions, unlike statutory enactments, are
presumed to be mandatory, "unless the contrary is unmistakably manifest." The
pertinent rule of statutory construction is set forth in the American Jurisprudence as
follows:
"In the interpretation of Constitutions, questions frequently arise as to whether
particular sections are mandatory or directory. The courts usually hesitate to declare
that a constitutional provision is directory merely in view of the tendency of the
legislature to disregard provisions which are not said to be mandatory. Accordingly, it
is the general rule to regard constitutional provisions as mandatory, and not to leave
any discretion to the will of a legislature to obey or to disregard them. This
presumption as to mandatory quality is usually followed unless it is unmistakably
manifest that the provisions are intended to be merely directory. The analogous rules
distinguishing mandatory and directory statutes are of little value in this connection
and are rarely applied in passing upon the provisions of a Constitution.
"So strong is the inclination in favor of giving obligatory force to the terms of the
organic law that it has even been said that neither by the courts nor by any other
department of the government may any provision of the Constitution be regarded as
merely directory, but that each and every one of its provisions should be treated as
imperative and mandatory, without reference to the rules and distinguishing between
the directory and the mandatory statutes." (II Am. Jr. 686-687; emphasis supplied.)
12. Which admittedly, has the second largest number of votes in the Senate.
13. In Angara vs. Electoral Commission (supra, 169) Senator, then Justice, Laurel, speaking
for this Court, recalled that:
"In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the
draft by reducing the representation of the minority party and the Supreme Court in the
Electoral Commission to two members each, so as to accord more representation to
the majority party. The Convention rejected this amendment by a vote of seventy-six
(76) against forty-six (46), thus maintaining the non-partisan character of the
commission." (Emphasis supplied.)
Needless to say, what the Constitutional Convention thus precluded from being done
by direct action or grant of authority in the Charter of our Republic should not receive
judicial sanction, when done by resolution of one House of Congress, a mere creature
of said charter.
14. Namely, the other two (2) Justices of the Supreme Court and Senators Laurel, Lopez and
Primicias, or a total of six (6) members of the Tribunal.

Petitioners Vs VS: en Banc

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EN BANC

[G.R. No. L-10520. February 28, 1957.]

LORENZO M. TAÑADA and DIOSDADO MACAPAGAL , petitioners, vs .

Tañada, Teehankee & Macapagal for petitioners.

1. CONSTITUTIONAL LAW; SELECTION OF MEMBERS OF THE SENATE

Petitioner Lorenzo M. Tañada is a member of the Senate of the Philippines, and

In 1939, Section (4) of Article VI of the Philippine Constitution provided that

LABRADOR , J., dissenting :

I dissent and herewith proceed to explain my reasons therefor.

Senator Cea declared:

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