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[JOSE A. ANGARA v. THE ELECTORAL COMMISSION](http://lawyerly.ph/juris/view/c1b4e?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 45081, Jul 15, 1936 ]

JOSE A. ANGARA v. THE ELECTORAL COMMISSION +

DECISION

63 Phil. 139

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

JOSE A. ANGARA, PETITIONER, VS. THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, AND DIONISIO C. MAYOR, RESPONDENTS.

D E C I S I O N

LAUREL, J.:

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

The facts of this case as they appear in the petition and as admitted by the respondents are as follows:
(1)  That in the elections of  September 17, 1935, the petitioner, Jose A. Angara, and the respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for the position of member of the National Assembly for the first district of the Province of  Tayabas;

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

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

(4) That on  December 3, 1935, the. National  Assembly in session assembled, passed the following resolution:
"[No.  8] "
RES0LUCION CONFIRMANDO LAS ACTAS DE AQUE-LLOS DIPUTADOS CONTRA QIJIENES NO SE HA PRESENTADO PROTESTA.

"Se resuelve:  Que las actas de eleccion de los Diputados contra quienes no se hubiere presentado  debidamente una protesta antes de la adopcion de la presente resolucion  sean, como por la presente, son aprobadas y confirmadas. "Adoptada, 3  de diciembre, 1935."
(5) That on  December 8,  1935,  the herein respondent Pedro Ynsua filed  before  the Electoral  Commission  a "Motion of Protest" against the election of the herein petitioner, Jose A. Angara, being the only protest filed  after the passage of Resolution No. 8 aforequoted, and praying, among other things, that said respondent be declared elected member of the National Assembly for  the first district of Tayabas, or that the election of said position be nullified;

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

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

(7)  That on  December 20, 1935, the herein petitioner, Jose A. Angara, one of the respondents  in the  aforesaid protest, filed before the Electoral Commission a "Motion to Dismiss the Protest", alleging (a)  that Resolution No. 8 of the National Assembly was adopted in the legitimate exercise of its  constitutional prerogative to prescribe the period during which protests against the election of its  members should be  presented;  (6)  that the aforesaid resolution has for its object, and is the accepted formula for, the limitation of said period;  and (c)  that the protest in question was filed out of the prescribed period;

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

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

(10)  That the case being submitted for decision,  the Electoral Commission promulgated a resolution on January 23,1936, denying herein petitioner's "Motion to Dismiss the Protest."
The application of the petitioner sets forth the following grounds for the  issuance of the writ prayed for:
(a)  That the  Constitution confers exclusive jurisdiction upon the Electoral Commission solely as regards the merits of contested elections to the National Assembly;

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

(c) That like  the Supreme Court and other courts created in pursuance of  the Constitution, whose exclusive jurisdiction relates solely to deciding the merits of controversies submitted to them  for decision  and to matters involving their internal  organization,  the  Electoral Commission can regulate its proceedings only if the  National Assembly has not availed  of its primary power to so regulate such pro- ceedings;

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

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

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

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

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

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

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

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

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

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

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

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

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

(g)  That paragraph  6  of article  7  of  the  Tydings-McDuffie Law (No. 127 of the 73rd Congress of the United States) has no application to the case at bar. The case was argued before us on March 13, 1936.   Before it was submitted for decision, the petitioner prayed for the issuance of a preliminary writ of injunction against the respondent Electoral Commission which petition was denied "without passing upon the merits of the case"  by resolution of this court of March 21,1936.
There was no appearance for the other respondents.

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

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

  2. Has the said Electoral Commission acted without or in excess of its jurisdiction in  assuming to take cognizance of the protest filed against the election of the herein petitioner notwithstanding the previous  confirmation of  such election by resolution of the National Assembly?
We could perhaps dispose of this case by passing directly upon the merits of the controversy.   However, the question of jurisdiction having been presented, we do not feel justified in evading the issue.   Being a case primm impressionis, it would hardly be consistent with our sense of  duty to overlook the broader aspect  of the question and leave it undecided.   Neither would we be doing justice to the industry and vehemence of counsel were we not to pass upon the question of jurisdiction squarely presented to our consideration.

The separation of powers is a fundamental principle in our system of government.  It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and  is supreme within its  own sphere.  But it  does not follow from the fact that the three  powers are to be  kept  separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other.  The Constitution has  provided for an elaborate system of checks and balances to secure coordination in the workings  of the various departments of the government.  For example, the Chief  Executive under our Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws.  This, however, is  subject to the further check that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the case may be, of the National Assembly.   The President has also the right to convene the Assembly in special  session whenever he chooses.  On the other hand, the National Assembly operates as a check on the Executive  in the  sense that its consent through  its Commission on Appointments is necessary in the appointment of certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial department to a certain extent.  The Assembly  also exercises the judicial power of trying impeachments.  And the judiciary in turn, with the Supreme Court  as the final  arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.

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

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

The Constitution is a definition of the powers of government.   Who  is to determine  the  nature, scope  and  extent of such powers?  The Constitution itself has provided for the instrumentality of  the  judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and  sacred obligation assigned to it by the  Constitution to determine conflicting claims of authority under the Constitution and to establish  for the  parties in an actual controversy the rights which that  instrument secures and guarantees to them.   This  is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution.  Even  then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument  by the parties, and  limited  further to the constitutional question raised or the very lis mota  presented.   Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to  actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency  of legislation.   More than that, courts  accord the  presumption of  constitutionality  to legislative enactments, not only  because the legislature  is presumed to abide  by the Constitution  but also because the judiciary in the determination  of actual cases  and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.

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

In the case at bar, the National Assembly has by resolution  (No.  8) of December 3, 1935, confirmed the election of the herein petitioner to the said body.  On the other hand, the Electoral Commission has by resolution adopted on December 9,  1935, fixed said date as the last day for the filing of protests against  the election, returns  and qualifications of members of the National Assembly, notwithstanding the previous confirmation made by the National Assembly as aforesaid.  If,  as contended by the petitioner, the resolution  of the National Assembly has the effect of cutting off the power of the Electoral Commission to entertain protests against the election, returns and qualifications of members of the National Assembly, submitted after December 3,1935, then the resolution  of the Electoral Commission of December 9, 1935, is mere surplusage and had no effect.  But, if, as contended by the respondents, the Electoral Commission has the sole power  of regulating its proceedings to the exclusion  of the  National  Assembly, then the resolution of December 9, 1935, by which the Electoral Commission fixed said  date  as the last day for filing  protests  against the election, returns and qualifications  of members of the National Assembly, should be upheld.

Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature between the National Assembly on the one hand, and the Electoral Commission on the other.  From the very nature of the republican government established in our country in the light of American experience and of our own, upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries.  The Electoral Commission, as we shall have occasion to refer hereafter, is a constitutional organ, created for a specific purpose,  namely to determine all contests relating to the election, returns and qualifications of the members  of the  National  Assembly.  Although  the  Electoral Commission may not be interfered with, when and while act- ing within the limits of its authority, it does not follow that it is  beyond the reach  of  the constitutional  mechanism adopted by the people  and that it is not subject to constitutional restrictions.  The  Electoral Commission is not a separate department of the government, and even if it were, conflicting claims of authority  under the fundamental law between departmental  powers and agencies of the government are necessarily determined by the judiciary in justi- ciable and appropriate cases.   Discarding the English type and  other  European types of constitutional government, the framers of our Constitution adopted the American type where the written  constitution is  interpreted and given effect by the judicial department. In some countries which have  declined to follow the American example, provisions have  been inserted  in their  constitutions prohibiting the courts from exercising the power to interpret the fundamental law.  This is taken as a recognition of what otherwise would be the rule that in the absence of direct prohibition courts are bound to assume what is logically their function.  For instance, the Constitution of Poland of 1921, expressly provides that courts shall have no power to examine the validity of statutes (art. 81, chap. IV).  The former Austrian Constitution  contained a similar declaration.  In countries  whose constitutions  are silent  in  this respect, courts have assumed this power.  This is true in Norway, Greece,  Australia and South  Africa.  Whereas, in  Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional Charter of the Czechoslovak Republic,  February 29, 1920) and Spain (arts. 121-123, Title IX, Constitution of the Republic of 1931) especial  constitutional  courts  are established to pass upon the validity of ordinary laws.  In our case, the nature of the present controversy shows the necessity of a final constitutional arbiter to determine the conflict  of authority between two agencies created by the Constitution.  Were we to decline to take cognizance of the controversy, who will  determine the conflict? And if the conflict  were left undecided and undetermined, would not a void be thus created in our constitutional system which may in the long run prove destructive of the entire framework?  To ask these questions is to answer them.  Natura vacuum abhorret, so must we avoid exhaustion in our constitutional system.   Upon  principle* reason and authority, we are clearly of the opinion that upon the admitted facts of the present case, this court has jurisdiction over the Electoral Commission and the subject matter of the present controversy for the purpose of determining the character, scope and extent of the constitutional grant to the Electoral Commission as "the sole judge of  all contests relating to the election, returns and qualifications of the members of the National Assembly."

Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second proposition and determine whether the Electoral Commission has acted without or in excess of its jurisdiction in adopting its resolution of December 9, 1935, and in assuming to  take cognizance of the protest filed against the election of the herein petitioner notwithstanding the previous  confirmation thereof by the National Assembly  on  December 3, 1935.  As able counsel for the petitioner has pointed out, the issue hinges on the interpretation of section 4 of Article VI of the Constitution which provides:
"SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme Court designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three by the party having the second  largest number  of votes therein.   The senior Justice in the Commission shall be its  Chairman, The Electoral Commission shall be the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly."  It is imperative, therefore, that we delve into the origin and history of this constitutional provision and inquire into the intention of its framers and the people who adopted it so that we may properly appreciate its full meaning, import and significance.
The original provision regarding this subject in the Act of Congress of July 1,1902 (sec. 7, par. 5) laying down the rule that "the assembly shall be the  judge of the elections, returns, and qualifications of its members", was taken from clause 1 of section 5, Article I of the Constitution of the United States providing that "Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members,   *  *  *."  The Act of Congress of August 29, 1916 (sec. 18, par. 1) modified this provision by the insertion of the word "sole"  as follows: "That the Senate and House of Representatives, respectively, shall be the sole judges of the elections, returns,  and qualifications of their elective members,  * * *" apparently in order to emphasize the exclusive character of the jurisdiction conferred upon each House of the Legislature over the particular cases therein specified.  This court has had occasion to characterize this grant of power to the  Philippine Senate and  House of Representatives, respectively, as "full, clear and complete"  (Veloso vs. Boards of Canvassers of Leyte and  Samar  [1919], 39 Phil., 886, 888.)

The first step towards the creation of an independent tribunal for the purpose of deciding contested elections to the legislature was taken by the sub-committee of five appointed by the Committee on Constitutional Guarantees of the Constitutional Convention, which sub-committee submitted a report on August 30, 1934,  recommending the creation  of a Tribunal of  Constitutional  Security empowered  to hear protests  not only against the election of members  of the legislature but also against the election of executive officers for whose election the  vote of the whole nation is required, as  well  as to  initiate impeachment proceedings against specified  executive and judicial  officers.  For the purpose of hearing  legislative protests, the tribunal was to be composed of three justices designated  by the Supreme Court and six members of the house of the legislature to which the contest corresponds, three members to be designated by the majority party and three by the minority, to be presided over by the Senior Justice unless the Chief Justice is also a member  in which case the latter shall preside.  The foregoing proposal was  submitted by the Committee on Constitutional Guarantees  to the Convention on September 15, 1934, with slight modifications consisting in the reduction of the legislative representation to  four members,  that is, two senators  to be designated one  each  from the two  major parties in the Senate and two representatives to be designated one each from the  two major parties in the  House of Representatives, and in awarding representation  to the executive department in the  persons of two representatives to be designated by the President.

Meanwhile, the Committee on  Legislative Power was also preparing its report.  As submitted to the  Convention on September  24, 1934, subsection, 5, section 5, of the proposed Article on the Legislative  Department, reads as follows:
"The elections, returns and qualifications of the members of either House and all  cases  contesting the election of any of  their  members shall  be judged  by an Electoral Commission, constituted, as  to each House, by  three members elected by the members of the party having the largest number of votes therein, three elected by the members of the party having the second largest number of votes, and as  to  its Chairman, one  Justice of the Supreme Court designated by the Chief Justice."
The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as proposed by the Committee on Constitutional Guarantees which was probably inspired by the Spanish plan (art. 121, Constitution of the Spanish Republic of 1931), was soon abandoned in favor of the proposition of the Committee on Legislative Power to create a similar body with reduced powers and with  specific and limited jurisdiction, to be designated as an Electoral Commission.  The  Sponsorship Committee  modified  the proposal of the Committee on Legislative Power with  respect to the composition of the Electoral Commission and made further changes in phraseology to suit the project of adopting a unicameral instead of a bicameral legislature.  The draft as finally submitted to the Convention on October 26, 1934, reads as follows:
"(6) The  elections, returns and qualifications  of  the Members of the National Assembly  and all cases contesting the election of any of its Members shall be judged by an Electoral Commission, composed of three members  elected by the party having the largest number of votes in the National Assembly, three elected by the members of the party having the second largest number of votes, and three justices of the Supreme Court designated by the Chief Justice, the Commission to be presided over by one of said justices."
During the  discussion of the amendment  introduced by Delegates Labrador, Abordo, and others, proposing to strike out the whole subsection of the foregoing draft and  inserting in lieu thereof the following: "The National Assembly shall be the sole  and exclusive judge of the  elections, returns,  and  qualifications of the Members",  the following illuminating remarks were made on the floor of the Convention in its session of December 4, 1934, as to the scope of the said draft:

 
* * * * * * *
"Mr. Ventura. Mr. President, we have a doubt here as to the scope of the meaning of the first four lines, paragraph 6, page 11 of the draft, reading: The elections, returns and qualifications of the Members of the National Assembly and all cases contesting the election of any of its Members shall be judged by an Electoral Commission, * * * I should like to ask from the gentleman from Capiz whether the election and qualification of the member whose election is not contested shall also be judged by the Electoral Commission.
"Mr. Roxas. If there is no question about the election of the members, there is nothing to be judged; that is why the word 'judge' is used to indicate a controversy. If there is no question about the election of a member, there is nothing to be submitted to the Electoral Commission and there is nothing to be determined.
"Mr. Ventura. But does that carry the idea also that the Electoral Commission shall confirm also the election of those whose election is not contested?
"Mr. Roxas. There is no need of confirmation. As the gentleman knows, the action of the House of Representatives confirming the election of its members is just a matter of the rules of the assembly. It is not constitutional. It is not necessary. After a man files his credentials that he has been elected, that is sufficient, unless his election is contested.
"Mr. Ventura.

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

"Mr. Roxas.

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

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

"Mr. Ventura. Then it should be eliminated.
"Mr. Roxas. But that is a different matter, I think Mr. Delegate.
"Mr. CINCO.

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

"Mr. Roxas. That is merely for the sake of clarity. In fact the cases of contested elections are already included in the phrase 'the elections, returns and qualifications.' This phrase 'and contested elections' was inserted merely for the sake of clarity.
"Mr. Cinco. Under this paragraph, may not the Electoral Commission, at its own instancy refuse to confirm the election of the members?
"Mr. Roxas. I do not think so, unless there is a protest.
"Mr. Labrador. Mr. President, will the gentleman yield?
"The President. The gentleman may yield, if he so desires.
"Mr. Roxas. Willingly.
"Mr. Labrador. Does not the gentleman from Capiz believe that unless this power is granted1 to the assembly, the assembly on its own motion does not have the right to contest the election and qualification of its members ?
"Mr. Roxas.

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

Mr. Labrador. So that the right to remove shall only be retained by the Electoral Commission.
"Mr. Roxas. By the assembly for misconduct.
"Mr. Labrador. I mean with respect to the qualifications of the members.
"Mr. Roxas. Yes, by the Electoral Commission.
"Mr. Labrador. So that under this draft, no member of the assembly has the right to question the eligibility of its members?
"Mr. Roxas. Before a member can question the eligibility, he must go to the Electoral Commission and make the question before the Electoral Commission.
"Mr. Labrador. So that the Electoral Commission shall decide whether the election is contested or not contested.
"Mr. Roxas.

Yes, sir: that is the purpose.

"Mr. Pelayo. Mr. President, I would like to be informed if the Electoral Commission has power and authority to pass upon the qualifications of the members of the National Assembly even though that question has not been raised.
"Mr. Roxas. I have just said that they have no power, because they can only judge."


In the same session, the first clause  of the aforesaid draft reading "The election, returns  and  qualifications  of  the members of the National Assembly and" was eliminated by the Sponsorship Committee in  response to an amendment introduced by Delegates Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others.   In explaining the difference between the original draft and  the draft as amended, Delegate Roxas speaking for the Sponsorship Committee said
"Sr. Roxas. La diferencia, senor Presidents consiste solamente en obviar la objecidn apuntada por varios Dele- gados al efecto de que la primera clausula del draft que dice: The election, returns and qualifications of the members of the National Assembly' parece que da a la Comision Electoral la facultad de determinar tambien la eleccion de los miembros que no nan sido protestados y para obviar esa dificultad, creemos que la enmienda tiene raz6n en ese sentido, si enmendamos el draft, de tal modo que se lea como sigue: 'All cases contesting the election', de modo que los jueces de la Comision Electoral se limitaran solamente a los casos en que haya habido protesta contra las actas." Before the amendment of Delegate Labrador was voted upon the following interpellation also took place:
"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir informacion del Subcomit6 de Siete.
"El Sr. Presidents. ¿Que dice el Comity?
"El Sr. Roxas. Con mucho gusto.
"El Sr. Conejeeo. Tal como esta el draft, dando tres miembrosj la mayoria, y otros tres a la minorfa y trea a la Corte Suprema, pound ¿no cree riu Senoria que esto equivale practicalnentea tejar el asunto a los miembros del Tribunal Supremo?
"El Sr. Roxas.

Si y no. Creemos que si el tribunal o Ja Qomisi6n esta constitufdo en esa forma^tanto los miembros de la mayoHa como los de la minorfa asi como los miembros de la Corte Suprema consideraran la cuestidn so- bre la base de sus meritos, aabiendo que el partidismo no eg suficiente para dar el triunfo.

"El Sr. Conejero. ¿Cree Su Seiioria que en un caso como ese, podrfamos hacer que tanto los de la mayoria como los de la minorla prescindieran del partidismo?
"El Sr. Roxas. Creoque si, porque el partidismo no les daria el triunfo.
* * * * * * *
The amendment  introduced  by  Delegates Labrador, Abordo  and others seeking to restore the power to decide contests relating to the election, returns and qualifications of members  of the  National Assembly to the National Assembly itself, was defeated by a vote of ninety-eight (98) against fifty-six (56).

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

As approved  on January 31,  1935, the draft was made to read as follows:
" (6) All cases contesting the elections, returns and qualifications  of the Members of the National Assembly shall be judged by  an Electoral  Commission, composed of three members  elected by the party having the largest number of  votes in the National Assembly, three elected  by  the members  of the party  having the second  largest number of votes, and three justices of the Supreme Court designated by the Chief Justice,  the Commission to be presided over by  one of said justices."
The Style Committee to which the  draft was submitted revised it as follows:
"SEC. 4. There shall  be  an Electoral Commission composed of three Justices of the Supreme Court designated  by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three by the party having the second largest number of votes therein. The senior Justice in the Commission shall be its chairman. The Electoral Commission shall be the sole judge of the election, returns, and qualifications of the Members of the National Assembly."
When the foregoing draft was submitted for approval on February  8, 1935, the Style Committee, through President Recto, to effectuate the original intention of the Convention, agreed to insert the phrase "All contests relating to" between the phrase "judge of" and the words  "the election", which was accordingly  accepted by the Convention.

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

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

"153. From the time when the commons established their right to be  the exclusive judges of the elections,  returns, and qualifications of their members,  until the year 1770, two modes of proceeding prevailed, in the determination of controverted elections, and rights of membership.  One of the standing committees  appointed  at the commencement of each session, was denominated the committee of privileges and elections, whose function was to hear and investigate all questions of this  description which might be referred to  them, and  to report  their proceedings,  with their opinion thereupon, to  the house, from time  to time. When an  election petition was referred to this committee. they  hearo? the  parties  and their  witnesses  and other evidence, and made a  report of all the evidence, together with  their opinion thereupon, in the form of resolutions, which were considered and agreed or disagreed to by the house.  The other mode of proceeding was by a hearing at the bar of the house itself.  When this court was adopted, the case was heard  and  decided by the house, in substantially the same manner as by a committee.  The committee of privileges and elections although a select committee was usually what is called an open one; that is to say, in order to constitute the committee, a quorum of the members named was required to be present, but all the members of the house were at liberty to attend the committee and vote if they pleased.

"154. With the growth of political  parties in parliament questions relating to the right of membership  gradually assumed a political character; so that for many years previous to the year  1770,  controverted elections  had been tried and determined  by the house of commons, as mere party questions, upon which the strength of contending factions might be tested.  Thus,  for example, in  1741, Sir Robert Walpole, after repealed attacks upon his government, resigned his office in consequence of  an adverse vote upon the Chippenham election.  Mr. Hatsell remarks, of the trial of election cases, as conducted under this system, that 'Every principle of decency and justice were notoriously and openly prostituted, from whence the younger part of the house were insensibly,  but too successfully, induced to adopt the same licentious conduct in more serious matters, and in questions of higher importance to the public welfare. Mr. George Grenville, a distinguished member of the house of commons, undertook to propose  a  remedy for  the  evil, and, on the 7th of March,  1770, obtained the unanimous leave  of the house to bring in a bill, 'to regulate the trial of controverted elections, or returns of  members  to  serve in parliament.' In his speech to explain his plan, on  the  motion for leave, Mr. Grenville alluded to the existing practice in the following terms: 'Instead of trusting to the merits of their respective causes, the  principal  dependence of both parties  is their private interest among us; and it is scandalously notorious that we are as earnestly canvassed to attend in favor of the opposite sides, as if we were wholly self-elective, and not bound to act by the principles of justice,  but by the discretionary impulse of our own inclinations; nay, it is well known, that in every contested election, many members of this house, who are ultimately to judge in a kind of judicial capacity between the competitors, enlist themselves as parties in the contention, and take upon themselves the partial management of the very business, upon which they should determine with the strictest  impartiality.'

"155. It was to put an end to the practices thus described, that Mr. Grenville brought  in a bill  which  met with the approbation of both houses,  and received the royal assent on  the 12th of April, 1770.  This was  the celebrated  law since known by the name of the Grenville Act; of which Mr. Hatsell declares, that it *was one of the noblest works, for the honor of the house of commons, and the security of the constitution, that was  ever  devised  by any minister or statesman.  It is probable, that the magnitude of  the evil, or the  apparent success of the remedy, may have led many of the contemporaries of the measure to the information of a judgment, which was not acquiesced in  by some of the leading statesmen of the day, and has not been entirely confirmed by subsequent experience. The bill was objected to by  Lord  North, Mr. De Grey, afterwards chief justice of the common pleas, Mr. Ellis, Mr. Dyson,  who had been clerk of  the house,  and Mr.  Charles James Fox,  chiefly on the ground, that the introduction of the new system was an essential alteration of the constitution of parliament,  and a total abrogation of one of the  most  important rights and jurisdictions of the house of  commons."
As early  as 1868,  the House of Commons in England solved the problem of insuring the non-partisan settlement of the controverted elections of its members by abdicating its prerogative to two judges of the King's Bench of the High Court of Justice selected from a rota in accordance with rules of court made for the purpose.  Having proved successful,  the practice has become imbedded in English jurisprudence (Parliamentary Elections Act,  1868 . [31 & 32 Viet. c. 125] as amended by Parliamentary Elections and Corrupt Practices Act, 1879 [42 & 43 Viet. c.  75],  s. 2; Corrupt and Illegal Practices Prevention Act, 1883 [46 & 47 Viet. c. 51], s.  70; Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws  of  England, vol.  XII, p. 408, vol. XXI, p. 787).  In the Dominion  of Canada, election contests which were originally heard by the Committee of the House of Commons, are since 1922 tried in the courts. Likewise, in the Commonwealth of Australia,  election con- tests  which were originaHy determined by  each  house, are since 1922  tried  in the  High  Court.  In Hungary, the organic law provides that all protests  against the election of members of the Upper House  of  the  Diet  are to be resolved  by the Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37, par. 6).  The  Constitution of Poland of March  17, 1921 (art. 19)  and the Constitution, of the Free City of Danzig of  May 13, 1922 (art. 10) vest the authority to  decide contested elections to the Diet or National Assembly in the Supreme Court.   For the purpose of  deciding  legislative contests, the Constitution of the German Reich of July 1, 1919 {art. 31), the Constitution of the Czechoslovak Republic of February 29,  1920  (art. 19)  and the Constitution of the Grecian Republic of June 2, 1927 (art. 43), all provide for an Electoral Commission.

The creation of an Electoral Commission whose membership is recruited both from the legislature and the judiciary is by no  means  unknown in the United  States.  In the presidential elections of 1876 there  was a dispute as to the number of electoral votes received  by each of the two opposing candidates.  As the Constitution made no adequate provision for such a contingency, Congress passed a law on January 29, 1877 (United States Statutes  at Large,  vol. 19, chap. 37, pp. 227-229), creating a special  Electoral Commission composed of five members elected by the Senate, five members elected by the House of Representatives,  and five justices of the Supreme Court, the fifth justice to be selected by  the four designated in the Act.  The decision of the commission was to be binding unless rejected by the two houses voting separately.   Although there is not much of  a  moral lesson to  be derived from the experience of America in this regard, .judging from the observations of Justice Field, who was a member of that body on the part of  the Supreme Court (Countryman,, the Supreme  Court of  the United States and its Appellate Power under the Constitution [Albany, 1913] Relentless  Partisanship of Electoral Commission, p. 25 et seq.)t the experiment  has at least abiding historical interest.

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

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

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

The grant of power to the Electoral Commission to judge all contests  relating to the election, returns and qualifications of members of the National Assembly, is intended to be as complete and unimpaired as if it had remained originally in the legislature.  The express lodging of that power in the Electoral Commission is an implied denial of the exercise of that power by the  National Assembly.  And this is as effective a restriction upon the legislative power as an express prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State  vs. Whisman, 36 S. D., 260; L. R. A.,  1917B, 1).  If we concede the power claimed in behalf of the National Assembly that said body may regulate the proceedings of the Electoral Commission and cut off the power  of the  commission to  lay down the period within which protests should be filed, the grant of power to the commission would be ineffective.  The  Electoral Commission in such case would be invested with  the power to determine contested cases involving the election,  returns  and qualifications of the members of the National Assembly but subject at all times to the regulative power of the National Assembly.  Not only would  the purpose of the framers of our Constitution of totally transferring this authority from the legislative body be frustrated, but a dual authority would be  created  with the  resultant inevitable clash of powers from time to time.   A sad spectacle would then be presented of the Electoral  Commission retaining the bare authority of taking cognizance of cases referred  to,  but in reality without the necessary means to render  that authority effective whenever and wherever the  National Assembly has chosen to act, a situation worse than  that intended to be remedied by the framers of our Constitution.  The power to regulate on the part of  the National Assembly  in procedural matters will inevitably lead  to the ultimate control by the Assembly of the entire  proceedings of the Electoral Commission, and, by indirection,  to the entire abrogation of the constitutional grant.    It is obvious that this result should not be permitted.

We are not insensible to the impassioned argument of the learned  counsel for the petitioner regarding the importance and  necessity of respecting the dignity  and independence of the National Assembly as a coordinate department of the government and of according validity to its acts, to avoid what he characterized  would be practically an unlimited power of the commission in the admission of protests against members of the National Assembly.  But as we have pointed out hereinabove, the creation of the Electoral Commission carried with it ex necessitate to the power regulative in character to limit the time within which protests intrusted to its cognizance should be filed.  It is a settled rule of construction that where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one or  the performance of the other is also conferred  (Cooley, Constitutional Limitations, eighth ed., vol. I, pp.  138, 139).  In the absence of any further constitutional provision relating to the procedure to be followed in filing protests before the Electoral Commission, therefore, the incidental power  to promulgate such  rules necessary for the proper exercise of its exclusive power  to judge all contests relating to the election, returns and Qualifications of members of the  National Assembly, must be deemed  by necessary  implication to have been lodged also in the Electoral Commission.

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

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

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

Under the practice prevailing both in the English House of Commons and in the Congress of the United States, confirmation is neither necessary in order  to entitle a member-elect to take his  seat.  The return of the  proper election officers is sufficient, and the member-elect presenting such return begins to enjoy the  privileges of a member from the time that he takes his  oath of office (Laws of England, vol. 12, pp. 331, 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, sees. 21, 25, 26).   Confirmation is in order only in cases of contested elections where the decision is adverse to the claims of the protestant.   In  England, the judges' decision or report in controverted elections is certified to the Speaker  of the House of Commons, and the House, upon being informed of such certificate or report by the Speaker, is required  to enter the same upon the Journals, and to give such directions for confirming or altering the return, or for the issue of a writ for a new election, or for carrying into execution the determination  as circumstances may require (31 & 32 Viet., c. 125, sec. 13).  In  the United States, it is believed, the order or decision of the particular house itself is generally regarded as sufficient, without any actual alteration or amendment of the return  (Cushing, Law and Practice of Legislative Assemblies, 9th ed., sec.  166).

Under the practice prevailing when  the Jones Law was still in force, each house of the Philippine Legislature fixed the time when protests against the election of any  of its members  should be filed.  This was expressly authorized by section 18 of the Jones Law making each house the sole judge  of  the election, returns and qualifications  of its members, as well as by a law (sec. 478, Act No. 3387) empowering each house to respectively  prescribe by resolution the time  and manner of filing  contest in the election of members of said bodies.   As a matter of formality, after the time fixed by its rules' for the filing of protests had already expired, each house passed a resolution confirming or approving the returns of such members  against  whose election no  protests had been filed  within the prescribed time.   This was interpreted as cutting off the filing of further protests  against the  election of  those members not theretofore  contested (Amistad  vs. Claravall  [Isabela], Second  Philippine  Legislature, Record First Period,  p. 89; Urgello vs.  Rama [Third District,  Cebu], Sixth Phil- ippine Legislature; Fetalvero  vs. Festin [Romblon],  Sixth Philippine Legislature, Record First Period, pp. 637-640; Eintanar vs. Aldanese [Fourth District, Cebu], Sixth Phil- ippine, Legislature, Record First Period, pp.  1121,  1122; Aguilar vs.  Corpus [Masbate],  Eighth  Philippine Legislature, Record First Period, vol. Ill, No. 56,  pp. 892,  893). The Constitution has  repealed section 18 of the Jones Law. Act No. 3387, section 478, must be deemed to have been impliedly  abrogated  also,  for the  reason  that with the power to  determine  all  contests relating  to the election, returns and qualifications of members of the National Assembly, is inseparably linked the authority to prescribe regulations for the exercise of that power.  There was thus no  law nor constitutional provision which  authorized the National Assembly to fix, as it is alleged to have fixed on December 3, 1935, the time for the filing of contests  against the election of its members.  And  what the National Assembly could not do directly, it could not do by indirection through the medium of confirmation.

Summarizing, we conclude:
(a)  That the government established by  the  Constitution follows fundamentally  the  theory  of separation of powers into the legislative, the executive and the judicial.

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

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

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

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

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

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

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

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

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

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

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

(m) That confirmation by the National  Assembly of  the election of any member against whom no  protest had been filed prior to said confirmation, does not and cannot deprive the Electoral Commission of its  incidental power to prescribe the time within which protests against the election of any member of the National Assembly should be filed.
We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its constitutional prerogative in assuming to take cognizance of the protest filed by the respondent Pedro Ynsua against the election of the herein petitioner Jose A. Angara, and that the resolution of the National Assembly of December 3,1935 can not in any manner toll the time for filing protests against the election, returns and qualifications of members of the National As* sembly, nor prevent the filing of a protest within such time as the rules of the Electoral Commission might prescribe.

In view  of the conclusion reached by us relative to the character of the Electoral Commission as a constitutional creation and as to the scope and extent of its authority under the facts of the present controversy, we deem it unnecessary to determine whether the Electoral Commission is an inferior tribunal, corporation, board or person within the purview of sections 226 and  516 of the Code of Civil Procedure.

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

Avanceña, C.  J., Diaz, Conception, and Arellano, JJ., concur.



CONCURRING

ABAD SANTOS, J.:

I concur in the result and in most of the views so ably expressed in the preceding opinion.  I am, however, constrained to withhold my assent to certain conclusions therein advanced.

The power vested  in the Electoral  Commission by the Constitution of judging of all  contests relating to the election, returns, and  qualifications  of the  members of  the National Assembly, is judicial in  nature.  (Thomas vs. Loney,  134 U. S., 372;  33 Law. ed.f  949,  951.)   On the other hand, the power to regulate the time in which notice of  a  contested  election may be  given,  is legislative  in character.   (M'Elmoyle vs.  Cohen, 13 Pet., 312;  10 Law. ed., 1,77; Missouri vs. Illinois, 200 U. S., 496; 50 Law. ed., 572.)

It has been correctly stated that the government established by the Constitution follows fundamentally the theory of the separation of powers into legislative, executive, and judicial.  Legislative power is vested 'in the National Assembly.   (Article VI, sec. 1.)   In the absence of any clear constitutional provision to the contrary, the power to regulate the time in which notice of a contested election may be given, must be deemed to be included in the grant of legislative power to  the  National Assembly.

The Constitution of the United States contains a provision similar to that found in Article VI,  section 4, of the Constitution  of  the  Philippines.   Article I, section  5,  of the Constitution of the United States provides that each house of the Congress shall be the judge of the elections, returns, and qualifications of its  own  members.   Notwithstanding this provision, the Congress has assumed the power to regulate the time in which  notice of a contested election may be given.  Thus section 201, Title 2, of the United States Code Annotated prescribes:
"Whenever any person intends to contest an election of any Member of the House of Representatives of the United States, he shall, within thirty days after the result of such election shall have been determined  by the officer or board of canvassers  authorized by  law to determine  the same, give notice, in writing, to the Member whose seat he de- signs to contest, of his intention to contest the same, and, in such notice, shall specify particularly the grounds upon which he  relies in the contest."  (R. S., par. 105.)
The Philippine Autonomy Act, otherwise known as the Jones Law, also contained a provision to the effect that the Senate and House of Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of their elective members.  Notwithstanding this provision, the Philippine Legislature passed the Election Law, section 478 of which reads as follows:
"The Senate and the House  of Representatives shall by resolution respectively prescribe the time and manner of filing contest in the election of  members of said bodies, the time and manner of notifying the adverse party, and bond or bonds, to be required, if any, and shall fix the costs and expenses of contest which may be paid from  their respective funds."
The  purpose sought to be attained by the creation of the Electoral Commission was not to erect a body that would be above the law, but to raise legislative election contests from the category of political  to that of justiciable questions.  The purpose was not to place the commission beyond the reach of the law, but to insure the determination of such contests with due process of law.

Section 478 of the Election Law was in force at the time of the adoption of the Constitution, Article'XV, section 2, of which provides that
"All laws of the Philippine Islands shall continue in force until the inauguration of the  Commonwealth of the Philippines ; thereafter, such laws shall remain operative, unless inconsistent with this Constitution, until amended, altered, modified, or repealed by the  National Assembly, and all references in such laws to the Government or officials of the Philippine Islands shall be construed, in so far as applicable, to  refer to the  Government  and  corresponding officials under  this Constitution."
The  manifest purpose of this constitutional provision was to insure the orderly processes of government, and to prevent any hiatus in its operation  after the inauguration of the Commonwealth of the Philippines.  It  was thus  provided that all laws of the Philippine Islands shall remain operative even after the inauguration of the Commonwealth of the Philippines, unless inconsistent with the  Constitution, and that all references in such laws to  the  government or officials of the Philippine Islands shall be construed,  in so far as applicable, to refer to the government and corresponding officials under the Constitution.  It would seem to be consistent not only with the spirit but with the letter of the Constitution to hold that section 478 of the Election Law remains operative and should now be construed to refer to the Electoral Commission,  which, in so^far as the  power to judge election contests is concerned, corresponds  to either the  Senate  or the  House of Representatives under  the former regime.  It is important to observe in this connection that said section 478  of the Election Law vested the power to regulate the time and manner in which  notice of a contested election may be  given, not in the Philippine Legislature but in the Senate and House of Representatives singly.  In other words, the authority to prescribe the time and manner of filing contests in the election of members of the Philippine Legislature was by statute lodged separately in the bodies clothed with power to decide  such  contests. Construing section 478 of the Election Law to refer to the National Assembly, as required by  Article XV, section 2, of the Constitution, it seems reasonable to conclude that the authority to prescribe the time and manner of filing contests in the election of members  of the National Assembly is vested in the Electoral Commission,  which  is now  the body clothed with power to decide such contests.

In the light of what has been said, the resolution of the National Assembly of December 3,1935, could not  have the effect of barring the  right of the respondent Pedro Ynsua to contest the election of the petitioner.   By the same token, the Electoral Commission was authorized by law  to adopt its resolution of December 9,1935, which fixed the time with- in which written contests  must be filed with the  commission.

Having been filed within the time fixed by its resolution, the Electoral Commission has jurisdiction to hear and determine the  contest  filed by the respondent  Pedro Ynsua against the petitioner Jose A. Angara.  Writ denied.

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