Case - Lopez v. Sen

EN BANC [G.R. No. 163556. June 8, 2004.] CONG. RUY ELIAS C. LOPEZ, petitioner, vs. SENATE OF THE PHILIPPINES [represented by Franklin Drilon, President of the Senate], HOUSE OF REPRESENTATIVES, et al., respondents. RESOLUTION Gentlemen : Quoted hereunder, for your information, is a resolution of the Court En Banc June 8, 2004. G.R. No. 163556 — CONG. RUY ELIAS C. LOPEZ v. SENATE OF THE PHILIPPINES [represented by Franklin Drilon, President of the Senate], HOUSE OF REPRESENTATIVES, et al. Before the Court is a Petition for prohibition and mandamus seeking to nullify Section 13, Rule VIII of the Rules of the Joint Public Session of Congress, dated May 28, 2004, creating a Joint Committee which shall preliminarily canvass the votes of the candidates for President and Vice-President during the May 10, 2004 elections. At the outset, the Court stresses that it has jurisdiction over the subject matter of this controversy, because the herein Petition contains sufficient allegations claiming violations of the Constitution. Basic is the rule that jurisdiction is determined by the allegations of the initiatory pleading, like the complaint or petition. However, after careful deliberation on the merits of the Petition and the Comments filed by Senate President Franklin M. Drilon, Speaker Jose C. De Venecia and the Office of the Solicitor General, the Court RESOLVES to DISMISS the Petition on the ground that it failed to show that Congress gravely abused its discretion in creating such Joint Committee. Section 4, Article VII of the Constitution expressly empowers Congress "to promulgate its rules for the canvassing of the certificates." In Arroyo v. De Venecia (277 SCRA 268, August 14, 1997), the Court ruled that it had no power to review the internal proceedings of Congress, unless there is a clear violation of the Constitution. Likewise, Santiago v. Guingona, (298 SCRA 756, November 18, 1998) held that the Court — under the doctrine of separation of powers — has "no authority to interfere" in the "exclusive realm" of a co-equal branch, absent a showing of grave abuse of discretion. The Court has no authority to restrict or limit the exercise of congressional prerogatives granted by the Constitution. The creation of the Joint Committee does not constitute grave abuse and cannot be

said to have deprived petitioner and the other members of Congress of their congressional prerogatives, because under the very Rules under attack, the decisions and final report of the said Committee shall be subject to the approval of the joint session of both Houses of Congress, voting separately (See Sections 19, 23, 24 and 27 of the Rules). WHEREFORE, the Petition is DISMISSED. No costs. SO ORDERED. (As above-worded, the foregoing Resolution was approved unanimously, 14 to 0, by the Court. In addition, individual opinions, copies of which are attached hereto, were written by Chief Justice Hilario G. Davide, Jr.; Justice Reynato S. Puno, joined by Justices Angelina Sandoval-Gutierrez, Justice Romeo J. Callejo, Sr. who concurs in a Separate Opinion, and Adolfo S. Azcuna; Justice Leonardo A. Quisumbing; Justice Conchita Carpio-Morales; Justice Romeo J. Callejo, Sr. and Justice Dante O. Tinga.) DHATcE

Very truly yours, (SGD.) LUZVIMINDA D. PUNO

Clerk of Court

Separate Opinions DAVIDE, JR., C.J.: In his petition for prohibition and mandamus filed on 2 June 2004, Ruy Elias C. Lopez, Representative representing the 3rd Legislative District of the City of Davao, asks this Court to declare unconstitutional the Rules of the Joint Public Session of Congress on Canvassing the Votes Cast for Presidential and Vice-Presidential Candidates in the May 10, 2004 Elections (hereafter, Canvassing Rules), which the Senate and the House of Representatives, in joint session, approved, after much debate, on 28 May 2004. Petitioner alleges that the Canvassing Rules was adopted by both Houses of Congress with grave abuse of discretion amounting to lack or excess of jurisdiction, and that he had no other plain, speedy, and adequate remedy other than this petition. He requests the Court to issue a temporary restraining order directing Respondents to cease and desist from implementing, executing, and/or enforcing the Canvassing Rules. In the resolution of 4 June 2004, the Court, by a unanimous vote, denied the application for a temporary restraining order, and by a vote of 9-4 required Respondents and the Solicitor General to comment on the petition by 12 noon on Monday, 7 June 2004. The Senate, the House of Representatives and the Office of the Solicitor General seasonably filed their separate comments.

The prefatory statement of petitioner summarizes the main arguments found throughout his petition: Under our constitutional system, the powers of government are distributed among three (3) independent branches of government. The very important and delicate power and authority to open all certificates of canvass of votes for Presidential and Vice-Presidential and Vice-Presidential Candidates are solely and exclusively vested by the Constitution in the President of the Senate, just as the very important and delicate power and authority to determine the authenticity and due executions (sic) of all certificates of canvass and to canvass the votes cast for Presidential and Vice-Presidential Candidates are solely and exclusively vested by the Constitution in the Congress as one whole body." Any attempt to delegate these powers or a portion thereof to any other person or entity — whether within or without the Congress — is unconstitutional on the principle that potestas delegata non potest delegari. 1

Petitioner thus contends that the Canvassing Rules are unconstitutional because: 1) It constitutes a delegation of legislative power to a Joint Committee of Congress; 2) It constitutes an amendment of Section 4, Article VII of the Constitution; 3) It deprives him of his rights and prerogatives as a Member of Congress; and 4) By the passage of the Canvassing Rules, Congress has neglected to perform an act which the Constitution specifically enjoins as a duty resulting from office. The arguments of respondents, the Solicitor General, the Senate, and the House of Representatives, are similar in that they agree that the adoption of the Canvassing Rules are internal matters of Congress which is beyond this Court's scope of judicial inquiry. They are likewise unanimous in their argument that there has been no invalid delegation to the Joint Committee of the Constitutional duties of Congress. This Court's jurisdiction over the issue raised in this case is founded on Section 1 of Article VIII of the Constitution which provides that judicial power includes the duty "to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government". This duty does not do away with the "political question" doctrine. It only clarifies it by limiting it to its definition laid down in Tañada v. Cuenco. 2 That case defines political questions as those "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." The clarification became necessary because prior to the 1987 Constitution, as long as an act or measure was invoked as involving a political question, the courts affirmed such invocation rather than risk the separation of powers. The result, then, was that the legality of an act or measure was likewise left to the political branch in question. 3 Thus, now plainly stated in the 1987 Constitution, the mere invocation of a political question does not warrant an immediate or summary dismissal of a case. It falls, as it always has, within judicial power to determine for itself whether the legality and the limits of the exercise of a power have been observed and respected.

The contested provisions of the Canvassing Rules pertain to the functions of the Joint Committee, as follows: SEC. 13. A Joint Committee shall be created composed of eleven (11) members from the Senate to be appointed by the President of the Senate and eleven (11) members from the House of Representatives to be appointed by the Speaker. The Members of Each House panel shall elect from among themselves their respective Chairman in the Joint Committee. The Joint Committee may sit en banc or, in its discretion, in two division of eleven (11) members each composed of a chairman, five (5) members from the Senate and five (5) members from the House of Representatives: Provided, That a member of Congress who is a candidate for President or Vice-President shall not be eligible for appointment to the Joint Committee. Each division shall be chaired by a Chairman of the Joint Committee. The Joint Committee shall, upon determination of the authenticity and due execution of the certificates of canvass, preliminarily canvass the votes of candidates for the offices of the President and Vice-President. The Representatives of the province or city whose certificate of canvass is being canvassed shall be an ex officio member of the Joint Committee, without voting rights, for the duration of the canvassing of the aforesaid certificate of canvass.

It is petitioner's position that the formation of a Joint Committee, which determines the authenticity and due execution of the certificate of canvass of the Presidential and Vice-Presidential candidates and thereafter canvasses the votes, is a transfer or surrender to an entity of a duty imposed by the Constitution exclusively upon Congress as a whole body — that is, "in joint public session assembled." 4 Accordingly, petitioner claims that such transfer violates the principle that a delegated power cannot again be delegated, 5 potestas delegata non delegari potest. The source of the duty of Congress to act as the National Board of Canvassers for the office of the President and Vice-President is in paragraph 4, Section 4, Article VII of the Constitution, which provides: The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. caTESD

It is true that where the Constitution has vested powers in a branch of government there can be no further delegation of such authority by that branch to any other body. Originating from the law on agency, the principle has evolved in Constitutional law as a natural corollary to the separation of governmental powers. 6 Thus, the foundation of the principle of potestas delegata non delegari potest in

Constitutional law lies in the sovereignty that resides in the people from which all governmental authority emanates. 7 It is invoked as a prohibition against the three major branches of government — the executive, legislative, or the judiciary — from transferring the powers and duties conferred by the people upon it to another branch; neither does it allow any branch to invest in itself or its members the powers and duties belonging to another. 8 Moreover, there is no distinction as to what kind of power is delegated by the Constitution. Although the three branches of government each have its general functions in accordance with the principle of separation of powers, the system of checks and balances imposes upon each branch — or its members — powers outside of its usual functions. 9 Thus, even when the legislature is performing a nonlegislative act as a National Board of Canvassers, its inability to delegate such function to another branch of government remains intact. In this context, the principle does not apply in this case insofar as no other branch of government has been tasked with the duties of Congress as a National Board of Canvassers. As to whether there has been are invalid delegation of power "within" Congress, such argument, and the basis of petitioner's discussion, is an imprudent one. From a cursory reading of the Canvassing Rules, it can readily be seen that there has been no delegation or abdication of any Constitutional authority, even within Congress itself. Key provisions throughout the Canvassing Rules reveal the nature of the Joint Committee and its relation to the duties of Congress, whether referring to the determination of the authenticity and due execution of the certificates of canvass or the canvassing of the votes itself. Some of these provisions, however, are conveniently omitted by petitioner in his arguments. For one, Section 19 thereof provides: SCEDaT

Sec. 19. The Joint Committee, whether en banc or in divisions, shall decide any question involving the Certificate of Canvass by a majority vote of its Members, each House panel voting separately. Any such decision shall be subject to approval by the joint session, the Senate and House of Representatives voting separately. In case the two Houses disagree, the decision of the President of the Senate, in consultation with the Speaker of the House of Representatives, shall prevail." [Emphasis supplied]

As to the canvassing of votes, paragraph 2, of Sec. 13, provides that "[t]he Joint Committee shall, upon determination of the authenticity and due execution of the certificates of canvass, preliminarily canvass the votes of candidates for the offices of President and Vice-President." And again, in Sec. 23, the final report of the Joint Committee "shall be submitted by the Joint Committee en banc to the joint public session for its approval, each House voting separately." Further, in Section 27, we find that: Upon termination of the canvass and approval of the Joint Committee report and the accompanying resolution by majority of all the Members of both.

Houses voting separately in the joint public session, Congress through the President of the Senate and the Speaker of the House of Representatives shall forthwith proclaim the President-elect and the Vice-President-elect. [Emphasis supplied]

Since the Canvassing Rules subjects the acts of the Joint Committee to the affirmation of Congress, the Committee's report is preliminary and recommendatory in nature. The Canvassing Rules leaves to both Houses of Congress, as an entire body, the final act of determining the authenticity in the manner provided by law, and due execution of the certificates of canvass, and the proclamation of the President-elect and Vice-President-elect. Anent to his argument that the Canvassing Rules is an unlawful delegation of power, petitioner claims that the creation of the Joint Committee deprives him of his rights and prerogatives as a member of Congress to be present during the canvassing of genuine certificates of canvass, and to participate in its deliberations. He argues that by excluding him from the proceedings, the Canvassing Rules likewise deprives his constituents — the sovereign people — of representation and a voice in the affairs of government. Unfortunately, petitioner once again relies on his misreading of the Canvassing Rules. The fact that the findings of the Joint Committee are subject to a final act of Congress, then, by casting his vote and declaring his approval or disapproval of the final report, petitioner exercises his prerogatives as a Member of Congress. By claiming a sovereign duty to be present in all stages of the proceedings, petitioner confuses his rights as a Member of the Congress with the powers given to Congress itself. Under the Constitution, it is Congress that, in accordance with the law and its rules, canvasses the certificates of canvass certified by the Boards of Canvassers of provinces and cities after determining their authenticity and due execution in the manner provided by law. Being a member of Congress, his participation is likewise determined by the internal rules of congressional proceedings, and, in general, is determined by his vote. The quality of his participation is determined by such means as Congress deems fit to ensure the use of discretion when his vote is cast. As for the Canvassing Rules itself, petitioner's third argument is that Congress amends the Constitution by investing itself with powers beyond what was granted therein. He cites the three constitutional functions of Congress as a National Board of Canvassers: 1) the opening by the President of the Senate of all the certificates of canvass in the presence of the Senate and House of Representatives in joint public session; 2) the determination of the authenticity and due execution of the certificates of canvass; and 3) the canvassing of votes based on said certificates. It is his observation that with the enumeration of these three duties, the Constitutional mandate is specific, thereby foreclosing the need for implementing or procedural rules. The argument is bereft of merit. DCcHIS

The authority of Congress to adopt its own rules of procedure under par. (3), Sec. 16, Art. VI 10 is a right that has been recognized to apply regardless of whether Congress is exercising its legislative power or its other duties, such as in this case when it acts as the National Board of Canvassers. 11 Here, apart from the general authority of Congress to promulgate its internal rules, the Constitution itself specifically leaves it to Congress to determine the conditions and procedures of fulfilling its duty as a National Board of Canvassers. The sixth paragraph of Section 4, Article VII of the Constitution, plainly and clearly states: "The Congress shall promulgate its rules for the canvassing of certificates." The reason for the insertion of this provision, and its relation to the determination of the authenticity and due execution of the certificates of canvass, was likewise explained during the deliberations of the 1987 Constitutional Commission. MR. DAVIDE: On page 2, between lines 22 and 23, I propose to insert a new paragraph to read as follows: CONGRESS SHALL PROMULGATE ITS RULES FOR THE CANVASSING OF THE CERTIFICATES. MR. SUMULONG: Will Commissioner Davide repeat the proposed amendment? MR. DAVIDE: CONGRESS SHALL PROMULGATE ITS RULES FOR THE CANVASS OF THE CERTIFICATES. THE PRESIDENT: Is this accepted by the Committee? MR. REGALADO: For the benefit of the other Commissioners, will Commissioner Davide explain this proposal? MR. DAVIDE: This is necessary in order that Congress will have the authority now to promulgate the necessary rules for the canvassing of the certificates of canvass for the Offices of the President and the Vice-President. MR. REGALADO: How will that tie up with line 16 regarding the determination of the authenticity and due execution of the certificates of canvass in the manner provided by law?

MR. DAVIDE:

That is entirely a different matter, Madam President, because it would relate to the rules concerning the determination of the authenticity and due execution thereof, whereas the other one would be the rules of procedure. 12 [Emphasis supplied]

As regards the determination of authenticity and due execution of the certificates of canvass, the scope of the duty of Congress is to be defined by a law to be enacted by it. This was made clear during the deliberations of the Constitutional Commission explaining the inclusion of this provision in the 1987 Constitution, thus: MR. MAAMBONG. . . . The Committee had to insert the phrase "in the manner provided by law" so that the legislature itself will find out and will make it very specific as to what flaws or deficiencies in the certificates of canvass can be taken cognizance of by the canvassing board of tellers , because as of now the guiding regulations that govern the National Assembly, as I mentioned in the Committee, are: the rules and regulations of the COMELEC, the Omnibus Election Code, the jurisprudence from the decisions of the Supreme Court. All these things taken together, the legislature is given a notice by using the phrase "in the manner provided by law," so that it will make a determination now of what are the points which the board of tellers can take cognizance of, because it is not very clear right now under the laws and regulations, and as a matter of fact, that was one of the controversies which arose during the canvassing of the votes of President Aquino and former President Marcos in the last Batasan. 13 [Emphasis supplied]

The law referred to is R.A. No. 7166, 14 which was enacted on 26 November 1991. Section 30 thereof provides the flaws over which Congress would take cognizance, as well as the manner by which it would do so, thus: Sec. 30. Congress as the National Board of Canvassers for the Election of President and Vice-President: Determination of Authenticity and Due Execution of Certificates of Canvass. — Congress shall determine the authenticity and due execution of the certificate of canvass for President and Vice-President as accomplished and transmitted to it by the local boards of canvassers, on a showing that: (1) each certificate of canvass was executed, signed and thumbmarked by the chairman and members of the board of canvassers and transmitted or caused to be transmitted to Congress by them; (2) each certificate of canvass contains the names of all of the candidates for President and VicePresident and their corresponding votes in words and in figures; and (3) there exists no discrepancy in other authentic copies of the certificate of canvass or discrepancy in the votes of any candidate in words and figures in the certificate. TcaAID

When the certificate of canvass, duly certified by the board of canvassers of each province, city or district, appears to be incomplete, the Senate President shall require the board of canvassers concerned to transmit by

personal delivery, the election returns from polling places that were not included in the certificate of canvass and supporting statements. Said election returns shall be submitted by personal delivery within two (2) days from receipt of notice. When it appears that any certificate of canvass or supporting statement of votes by precinct bears erasures or alterations which may cast doubt as to the veracity of the number of votes stated therein and may affect the result of the election, upon request of the Presidential or Vice-Presidential candidate concerned or his party, Congress shall, for the sole purpose of verifying the actual number of votes cast for President and Vice-President, count the votes as they appear in the copies of the election returns submitted to it.

Contrary to petitioner's argument, therefore, whether Congress deems it fit to require its entire membership to examine each certificate of canvass, raise their comments and objections thereto, or engage in parliamentary debate before reaching its conclusions, or else leave preliminary matters to be discussed and argued according to different rules, must be left to the wisdom of Congress. So long as the ultimate power to canvass remains lodged in the body tasked to perform it, congressional rules adopted to address matters of expediency or the orderly conduct of proceedings is precisely the purpose of such rules. 15 Congress remains the body exercising its canvassing duties, and delegating preliminary determinations to expedite proceedings. Where the rules of Congress have thus been passed within the limits of constitutional and legal boundaries, everything else remains internal and procedural, and to which petitioner is bound. As procedural rules, "[t]hey may be waived or disregarded by the legislative body.' Consequently, mere failure to conform to parliamentary usage will not invalidate the action (taken by a deliberative body) when the requisite number of members have agreed to a particular measure. 16 In claiming that the creation of a Joint Committee is an unlawful delegation of authority, petitioner asserts that the determination of the authenticity and due execution of certificates is a function that requires the exercise of discretion on the part of the individual members of Congress. He implies that a ministerial function can be delegated whereas the determination of the authenticity and due execution, being more than ministerial, cannot. The distinction is facetious since petitioner argues throughout his petition that none of the duties of Congress under par. 4, Sec. 4, Art. VII of the Constitution can be delegated "whether within or without" Congress. On the contrary, respondents argue extensively that the nature of canvassing, as well as determining the authenticity and due execution of the certificates of canvass, are ministerial functions, which can be delegated in any case. The difference between a ministerial and discretionary function was amply cited in the Comment of Respondent Senate:

Discretion, when applied to public functionaries, means a power or right conferred upon them by law of acting officially, under certain circumstances, according to the dictates of their judgments and consciences, uncontrolled by the judgments or consciences of others. A purely ministerial act of duty, in contradistinction to a discretional act, is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment, upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer, and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion nor judgment." 17

Referring, once again, to the deliberations of the Constitutional Commission:

SHEIDC

MR. NOLLEDO: I am referring to the use of the words "upon determination of the authenticity and due execution thereof" on lines 7 and 8, page 2, referring to the certificates of canvass of the President and VicePresident. Am I right if I say that because of the use of these words, the duty of the legislature to canvass is no longer ministerial? MR. MAAMBONG: Madam President, the word "ministerial" has always been interpreted by the Supreme Court as applicable to the canvass made by the National Assembly, and the reason why we did not put the word "ministerial" in the Article is, it has been understood in the case of Lopez v. Roxas and in other cases. When we used the words "authenticity" and "genuineness," the question refers to the problem of whether or not the ministerial function is already nonministerial. The answer is, it is still ministerial but when we say "authenticity and "due execution," what it really means is that the National Assembly will look at the certificates of canvass and find out from the face of the document whether there are flaws in the execution and authenticity of the document. That is what it means. MR. NOLLEDO: Madam President, in the event that the legislature finds out that there are serious defects in the certificates of canvass — as when the seals are broken, there are a lot of erasures and then many of them are unsigned and, therefore, authenticity appears to be questionable — what will happen? MR. REGALADO: The answer to that is in the phrase "in the manner provided by law. . . ." 18 [Emphasis supplied] TIcAaH

Indeed, the inclusion in the 1987 Constitution of the duty of Congress to be the National Board of Canvassers for the election of the President and the Vice President meant that Congress was to have expanded powers. These expanded powers did not necessarily mean that the nature of the power changed from a ministerial to a discretionary one. However, nor can the power of Congress to determine authenticity and due execution of the canvass of votes be deemed purely ministerial, as whether there has been tampering or not, or, as according to Sec. 30 of R.A. No. 7166, or determining when there is 'doubt' requires some degree of discretion. The distinction made in Lopez v. Roxas 19 was a distinction made between the duties of Congress and that of the Presidential Electoral Tribunal, the latter charged with judging all contests relating to the election, returns, and qualifications of the Presidential and Vice-Presidential candidates, under Section 1, R.A. No. 1793: Needless to say, the power of congress to declare who, among the candidates for President and/or Vice-President, has obtained the largest number of votes, is entirely different in nature from and not inconsistent with the jurisdiction vested in the Presidential Electoral Tribunal by Republic Act No. 1793. Congress merely acts as a national board of canvassers, charged with the ministerial and executive duty to make said declaration, on the basis of the election returns duly certified by provincial and city boards of canvassers. Upon the other hand, the Presidential Electoral Tribunal has the judicial power to determine whether or not said duly certified election returns have been irregularly made or tampered with, or reflect the true result of the elections in the areas covered by each, and, if not, to recount the ballots cast, and, incidentally thereto, pass upon the validity of each ballot or determine whether the same shall be counted, and, in the affirmative, in whose favor, which Congress has power to do." 20

Thus, while petitioner correctly maintains that the 1987 Constitution sought to expand the power of Congress by requiring it to determine the genuineness of the certificates of canvass, the act of discretion was done upon determining the rules of authenticity and due execution. That accomplished, the National Board of Canvassers could only act within the parameters and according to the criteria specifically provided by the law. Nevertheless, even if, for purposes of argument, the determination of the authenticity and due execution of the certificates of canvass were more than a ministerial function, the Canvassing Rules, as discussed earlier, does not delegate nor abdicate such determination to the Joint Committee, nor for that matter any of the other duties Congress prescribed under Sec. 4, Art. VII. Therefore, discussion on the accusation against Congress regarding its neglect of duty because of the adoption of its Canvassing Rules would now be superfluous. What remains for petitioner, as a member of Congress and a representative of his constituents, is in the opportunities to make the informed judgments provided by the Canvassing Rules itself. The Canvassing Rules provides safeguards, which would enable petitioner to responsibly perform his individual duty as a Member of

Congress and properly represent the interests of his constituents. A declaration of yea and nay or the raising of hand to express protest or approval is a diminished prerogative only when it is not exercised with the full weight of the trust of the people and the powers of reason and conscience. aTcIAS

Finally, the challenged Canvassing Rules is similar, for the most part, to the Canvassing Rules for the Presidential and Vice Presidential Election of 1998. 21 That canvassing Rules was unanimously approved by the Senate and the House of Representatives at its joint session. In attendance at that session were Senators, same of whom are now incumbent Senators Edgardo Angara, Gregorio Honasan, Sergio Osmeña III and Vicente Sotto III, 22 and opposition Representatives Bellaflor Angara-Castillo, Didagen Dilangalen and Rolando Zamora, among others. 23 Indeed, I cannot understand why an almost the same Rules is now assailed on constitutional grounds. I cannot likewise understand why Congress should promulgate separate Canvassing Rules for every Presidential elections. It should have promulgated one set of Canvassing Rules for all such elections, thereby ensuring stability and avoiding delays and confusion in future Presidential elections. WHEREFORE, I vote to dismiss the petition for its utter failure to show that the Rules of the Joint Public Session on Congress on Canvassing the Votes for Presidential and Vice Presidential abuse of discretion by both the Senate and the House of Representatives in joint session. PUNO, J.: The facts are sparse but sufficient. We held our national election last May 10, 2004. The candidates for President were President Gloria Macapagal-Arroyo, actor Fernando Poe, Jr., Senator Panfilo Lacson, former Secretary of Education Raul Roco, and religious leader Bishop Eddie Villanueva. The candidates for Vice-President were Senator Noli de Castro, Senator Loren Legarda, former Congressman Herminio Aquino and Mr. Rodolfo Pajo. Congress thereafter convened itself in joint session to canvass the results of the Presidential and Vice-Presidential elections. It approved the Rules of the Joint Public Session of Congress on Canvassing Votes for the Presidential and Vice-Presidential Candidates in the May 10, 2004 Elections. ETAICc

On May 2, 2004, petitioner, a member of the House of Representatives representing the 3rd Legislative District of the City of Davao, filed the instant petition for prohibition and mandamus with prayer for issuance of a status quo ante order, temporary restraining order and writ of preliminary injunction. He assailed said Rules as constitutionally infirmed allegedly because they: (1) constitute an unconstitutional delegation of legislative power to a Joint Committee of Congress; (2) constitute an unconstitutional amendment of Article VII, Section 4 of the Constitution; (3) constitute an unconstitutional deprivation and derogation of his rights and prerogatives as a member of the House of Representatives; and (4) by the passage of the Rules, Congress has unlawfully neglected the performance of an act which the Constitution specifically enjoins as a duty resulting from office.

In their respective Comments, public respondents defended the validity of their act. The Senate, represented by the President of the Senate, Honorable Franklin M. Drilon, submits that the Legislature's formulation and implementation of its own rules affecting its internal operation are beyond the ambit of judicial scrutiny. And, contrary to petitioner's contention, the Rules are in complete accord with the Constitution as they do not remove from Congress the power to determine the authenticity and due execution of the certificates of canvass and to canvass the votes of the candidates for President and Vice-President, which power is still reposed in Congress as a whole, nor do they curtail the rights and prerogatives of any member of Congress to participate in the canvassing. Neither does the creation of the Joint Committee constitute an undue delegation of a legislative function since the canvassing of votes is not an exercise of the legislative function of Congress. In fine, the Senate President believes that the instant petition is a mere disguised attempt to change the rules and delay the canvassing of votes. CaTcSA

Respondent House of Representatives, through the Speaker of the House of Representatives, Honorable Jose C. De Venecia, maintains that the constitutional grant of the power to canvass the votes for the President and the Vice-President and the corresponding mandate to formulate its own rules of procedure authorize Congress which has the sole discretion to create a Joint Committee to preliminarily canvass the votes to expedite the proceedings. Similarly, the Speaker is of the view that the creation of the Joint Committee is not violative of the well-known maxim delegata potestas non delegari 1 which finds application only when what is delegated is legislative power, and not an electoral function such as canvassing of votes. The Solicitor General argues that the constitutionality of the act of Congress in assigning the preliminary canvassing of votes for President and Vice-President is a political question. It is Congress, and not the Judiciary, which gets to decide what procedures are proper in this circumstance. And, while the Constitution assigns to Congress the power to canvass the votes, it does not mean that the whole Congress, as a body, should actually canvass the votes. Congress has the discretion to follow its previous practice of using a joint committee to canvass the certificates of canvass and does not abdicate its power because the Joint Committee, apart from being a part thereof, will just come out with a final report which will be submitted to the whole Congress, in joint public session, for approval. Finally, there is no delegation of legislative power since delegation of legislative power applies only when there is transfer of power from one department of government to the other departments. In this case, Congress did not delegate its power to the Executive or Judicial department. In short, the petition poses two hinge issues: (1) whether it hoists a political question over which the Court has no jurisdiction; and (2) assuming the issue raised is justiciable, whether the Rules violate Article VII, Section 4 of the Constitution. Let us keep a full eye on the Rules. The pertinent parts provide: RULE VIII

JOINT COMMITTEE SEC. 13. A Joint Committee shall be created composed of eleven (11) members from the Senate to be appointed by the President of the Senate and eleven (11) members from the House of Representatives to be appointed by the Speaker. The Members of each House panel shall elect from among themselves their respective Chairman in the Joint Committee. The Joint Committee may sit en banc or, in its discretion, in two divisions of eleven (11) members each composed of a chairman, five (5) members from the Senate and five (5) members from the House of Representatives: Provided, That a Member of Congress who is a candidate for President or Vice-President shall not be eligible for appointment to the Joint Committee. Each division shall be chaired by a Chairman of the Joint Committee. The Joint Committee shall, upon determination of the authenticity and due execution of the certificates of canvass, preliminarily canvass the votes of candidates for the offices of President and Vice-President. The Representative of the province or city whose certificate of canvass is being canvassed shall be an ex officio member of the Joint Committee, without voting rights, for the duration of the canvassing of the aforesaid certificate of canvass. SEC. 14. The Joint Committee, en banc or in divisions, shall satisfy itself that each certificate of canvass was duly executed, signed and thumb marked by the Chairman and Members of the provincial, city or district Board of Canvassers concerned; that it contains the names of all the candidates for President and Vice-President and their corresponding votes in words and in figures; and there exists no discrepancy in other authentic copies of the certificate of canvass or discrepancy in the votes of any candidate in words and figures in the same certificate. TIcAaH

SEC. 15. When the certificate of canvass, duly certified by the Board of Canvassers of each province, city or district, appears to be incomplete, the Senate President shall require the Board of Canvassers concerned to transmit by personal delivery, the election returns from polling places that were not included in the certificate of canvass and supporting documents. Said election returns shall be submitted by personal delivery within two (2) days from receipt of notice. SEC. 16. In case of omission in the certificate of canvass of the name of any candidate and/or the votes obtained by any candidate, the President of the Senate shall summon, in the most expeditious manner, the provincial, city or district Board of Canvassers concerned to supply the missing data in the certificate of canvass and to authenticate the same by affixing their signatures thereon. SEC. 17. When it appears that any certificate of canvass or supporting statement of votes by precinct bears erasures or alterations which may cast doubt as to the veracity of the number of votes stated therein and may affect the result of the election, upon request of the Presidential or Vice-

Presidential candidate concerned or his party, Congress shall, for the sole purpose of verifying the actual number of votes cast for President and VicePresident, count the votes as they appear in the copies of the election returns submitted to it. SEC. 18. In case the copy of the certificate of canvass for Congress is delayed, the President of the Senate shall obtain said delayed certificate of canvass from the provincial, city or district Board of Canvassers concerned within a period of two days. In case the certificate of canvass has been lost, destroyed or is otherwise unavailable, the Joint Committee shall immediately request the Commission on Elections for its authentic copy of said certificate of canvass. SEC. 19. The Joint Committee, whether en banc or in divisions, shall decide any question involving the certificate of canvass by a majority vote of its Members, each House panel voting separately. Any such decision shall be subject to approval by the joint session, the Senate and House of Representatives voting separately. In case the two Houses disagree, the decision of the President of the Senate, in consultation within the Speaker of the House of Representatives, shall prevail. SEC. 20. The Joint Committee en banc or in divisions, may, by a majority vote of its Members each House panel voting separately, punish for contempt any person who commits disorderly behavior during its session. Any member of the provincial, city or district Board of Canvassers who refuses without reasonable cause to obey any order issued by the President of the Senate as provided in Sections 15, 16, 18 and 21 hereof, may likewise be punished for contempt by the joint public session upon recommendation of the Senate President. SEC. 21. The chairmen of the Joint Committee shall request from the Commission on Elections technical assistance for purposes of the canvassing of votes. A list of the names, specimen signatures and thumb marks of the chairmen and members of the provincial, city and district Boards of Canvassers shall be obtained from the Commission on Elections for the determination of the authenticity and due execution of certificates of canvass. When there is any doubt regarding the authenticity and due execution of the certificate of canvass, the Joint Committee, en banc or any of its divisions, may require the personal appearance of the chairmen and members of the provincial, city of district Board of Canvassers concerned. SEC. 22. The Joint Committee en banc shall tabulate the votes and, for this purpose, may avail of the services of an independent accounting/auditing firm to assist in the tabulation and canvass of votes. After the certificates of canvass and the statement of votes have been tabulated, any Member of Congress may request in writing for copies thereof from the Secretariat prior to the consideration of any interim or final report to the joint session. TSaEcH

SEC. 23.

The Joint Committee, en banc or in divisions, shall meet eight (8)

hours a day from Monday to Friday until all the certificates of canvass referred to it by the joint public session shall have been canvassed. The final report shall be submitted by the Joint Committee en banc to the joint public session for its approval, each House voting separately. RULE IX REPORT OF THE JOINT COMMITTEE SEC. 24. Notwithstanding the fact that not all certificates of canvass have been received, the Joint Committee may submit to the joint public session its final report with the recommendation to terminate the canvass if the total number of registered voters corresponding to the province, city or district covered by the certificates of canvass not yet transmitted would no longer affect the result of the election. Congress in joint public session, voting separately, shall immediately act on the final report. The Joint Committee may, in its discretion, submit interim report to the joint public session whenever there is a need for guidance or direction from Congress. Provided, That objections raised and rulings made therein shall no longer be included in the final report. SEC. 25. At least a majority of the Members from each House panel shall sign the final report of the Joint Committee. Every Member shall be provided with a copy of the final report and shall be given twenty-four (24) hours within which to submit his concurring or dissenting opinion. SEC. 26. During the joint public session, the Member designated by the Joint Committee shall speak for not more than one hour on the report and the accompanying resolution approving the report of the Joint Committee, declaring the results of the canvass and proclaiming the President-elect and Vice-President-elect. The Member designated by those against the report shall also speak for not more than one hour. Subsequent speakers for or against the resolution shall be allowed to speak for not more than three hours; Provided, That one (1) speaker for each candidate shall be given the opportunity to speak for not more than twenty minutes. RULE X PROCLAMATION SEC. 27. Upon termination of the canvass and approval of the Joint Committee report and the accompanying resolution by majority of all the Members of both Houses voting separately in the joint public session, Congress through the President of the Senate and the Speaker of the House of Representatives shall forthwith proclaim the President-elect and VicePresident-elect. I respectfully make the following submissions: I

The petition poses a justiciable issue over which this Court has jurisdiction.

The first issue is whether the petition involves a political question, hence, this Court is bereft of jurisdiction to take cognizance of it. This is not the first time, and it will not be last, when the Court will wrestle with the political question defense. As early as 1957, in the landmark case of Tañada v. Cuenco, 2 this Court has held that political question connotes what it means in ordinary parlance, a question of policy. It refers to "those questions which under the Constitution, are to be decided by the people in their sovereign capacity; or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government. It is concerned with issues dependent upon the wisdom not legality of a particular measure." For this reason ". . . courts will not normally interfere with the workings of another co-equal branch unless the case shows a clear need for the courts to step in to uphold the law and the Constitution." 3 We have a continuous river of rulings that the political question doctrine cannot be invoked when the issue is whether an executive act or a law violates the Constitution. 4 Thus, in Tatad v. Secretary of the Department of Energy, 5 we emphatically explained that "the principle of separation of powers mandates that challenges on the constitutionality of a law should be resolved in our courts of justice while doubts on the wisdom of a law should be debated in the halls of Congress." IaDcTC

When the Constitution is violated, even an act of a co-equal and coordinate branch of government has to be struck down. Our government operates both under the principle of separation of powers and the principle of checks and balances. In less esoteric terms, this means that our three branches of government, vis-à-vis each other, follow the rule of trust the two but trust no one absolutely. Thus, in Arroyo v. de Venecia, 6 this Court, citing U.S. v. Ballin, Joseph & Co., 7 and speaking thru Mr. Justice Vicente V. Mendoza, held that "[t]he Constitution empowers each house to determine its proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained." In the recent case of Francisco, Jr. v. The House of Representatives, et al., 8 promulgated on November 10, 2003, it was also pointed out, viz.: To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new Constitution which expanded the definition of judicial power as including "the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any part of any branch or instrumentality of the Government." As well observed by retired Justice Isagani Cruz, this expanded definition of judicial power considerably constricted the scope of political question. He opined that the language luminously suggests that this duty (and power) is available even against the executive and legislative departments including the President and the Congress, in the exercise of their discretionary powers.

We shall not be breaking grounds in striking down an act of a co-equal branch of government or an act of an independent agency of government done in grave abuse of discretion. Article VI, Section 17 of the 1987 Constitution provides, inter alia, that the House of Representatives Electoral Tribunal (HRET) shall be the "sole judge" of all contests relating to the election, returns, and qualifications of the members of the House. In Bondoc v. Pineda, et al. this Court declared null and void the Resolution of the House of Representatives withdrawing the nomination, and rescinding the election of Congressman Camasura as a member of the HRET. His expulsion from the HRET by the House of Representatives was held not to be for a lawful and valid cause, but to unjustly interfere with the tribunal's disposition of the Bondoc case and deprive Bondoc of the fruits of the HRET's decision in his favor. This Court found that the House of Representatives acted with grave abuse of discretion in removing Congressman Camasura. Its action was adjudged to be violative of the constitutional mandate which created the HRET to be the "sole judge" of the election contest between Bondoc and Pineda. We held that a showing that plenary power is granted either department of government is not an obstacle to judicial inquiry, for the improvident exercise or the abuse thereof may give rise to a justiciable controversy. Since "a constitutional grant of authority is not unusually unrestricted, limitations being provided for as to what may be done and how it is to be accomplished, necessarily then, it becomes the responsibility of the courts to ascertain whether the two coordinate branches have adhered to the mandate of the fundamental law. The question thus posed is judicial rather than political." We further explained that the power and duty of courts to nullify, in appropriate cases the actions of the executive and legislative branches does not mean that the courts are superior to the President and the Legislature. It does mean though that the judiciary may not shirk "the irksome task" of inquiring into the constitutionality and legality of legislative or executive action when a justiciable controversy is brought before the courts by someone who has been aggrieved or prejudiced by such action. It is "a plain exercise of judicial power, the power vested in courts to enable them to administer justice according to law. . . . It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law." In Angara v. Electoral Commission, we also ruled that the Electoral Commission, a constitutional organ created for the specific purpose of determining contests relating to election returns and qualifications of members of the National Assembly may not be interfered with by the judiciary when and while acting within the limits of authority, but this Court has jurisdiction over the Electoral Commission for the purpose of determining the character, scope and extent of the constitutional grant to the commission as sole judge of all contests relating to the election and qualifications of the members of the National Assembly. Similarly, in Arroyo v. House of Representatives Electoral Tribunal

(HRET) and Augusto Syjuco, we nullified the HRET's decision declaring private respondent Syjuco as the duly elected Congressman of Makati for having been rendered in persistent and deliberate violation of the Tribunal's own governing rules and the rules of evidence. To be sure, this Court has reviewed not just acts of the HRET but also of the House of Representatives itself. We passed upon the issue of whether the procedure for passing a law provided by the Constitution was followed by the House of Representatives and the Senate in Tolentino v. Secretary of Finance, et al. involving R.A. No. 7716 or the VAT law. We ruled that the VAT law satisfied the constitutional provision requiring that all appropriation, revenue and tariff bills originate from the House of Representatives under Article VI, Section 24 of the 1987 Constitution. We also interpreted the constitutional provision requiring the reading of a bill on three separate days "except when the President certifies to the necessity of its immediate enactment, etc." and held that this requirement was satisfied when the bill which became R.A. No. 7716 underwent three readings on the same day as the President certified the bill as urgent. Finally, we interpreted the Rules of the Senate and the House of Representatives and held that there was nothing irregular about the conference committee including in its report an entirely new provision not found either in the House bill or in the Senate bill as this was in accordance with the said Rules. TADCSE

The recent case of Macalintal v. COMELEC on absentee voting affirmed the jurisdiction of this Court to review the acts of the legislature. In said case, the Court settled the question of propriety of the petition which appeared to be visited by the vice of prematurity as there were no ongoing proceedings in any tribunal, board or before a government official exercising judicial, quasi-judicial or ministerial functions as required by Rule 65 of the Rules of Court. The Court considered the importance of the constitutional issues raised by the petitioner, and quoted Tañada v. Angara stating that "where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute." (citations omitted) HSaIET

This line of thought enjoys the unanimous view of the Court. It is therefore futile to contend that this Court has no jurisdiction over the petition at bar on the ground that it poses a political question. The petition assails the creation by Congress of a Joint Committee for the purpose of determining the authenticity and due execution of the certificates of canvass appertaining to the positions of President and Vice-President in our last May 10, 2004 elections. Petitioner contends that the creation violates Article VII, Section 4 of the Constitution under which it is alleged that only Congress, in joint public session, can exercise the said power. Petitioner also argues that the creation of the Joint Committee deprives him of his constitutional right to participate in the canvass of the results of the last Presidential and Vice-Presidential elections. The issue raised by petitioner calls for the proper interpretation of Article VII, Section 4 of the Constitution vis-à-vis the Rules of the Joint Public Session of Congress or Canvassing the Votes Cast for the Presidential and Vice-Presidential Candidates in the May 10, 2004 Elections. Since time immemorial, the jurisdiction of this

Court to interpret the Constitution has never been successfully flayed. Indeed, this authority has been broadened by the expanded definition of judicial power in the 1987 Constitution. In expanding the judicial power of this Court, we said that "[t]o a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this Court not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government." 9 We even held that the Constitution "did not just grant the Court the power of doing nothing." 10 Stubborn thoughts that still insist this Court has no jurisdiction on issues that involve the interpretation of the Constitution should now be consigned to the museum of memories. II Creation of Canvassing Committee constitutes no grave abuse of discretion. The next issue is whether the creation of a Joint Committee on Canvassing constitutes grave abuse of discretion for being violative of Article VII, Section 4 of the Constitution which relevantly states: xxx xxx xxx Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May. The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. The person having the highest number of votes shall be proclaimed elected, but in case of two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of the Congress. The Congress shall promulgate its rules for the canvassing of the certificates: xxx xxx xxx

Petitioner also contends that the Rules deprived him of his rights and prerogatives as a member of Congress. STcHDC

The nature of the work of the Joint Committee deserves minute examination. The

purpose of the Joint Committee is spelled out in no uncertain terms in Rule VIII, Section 13, viz.: "The Joint Committee shall, upon determination of the authenticity and due execution of the certificates of canvass, preliminarily canvass the votes of candidates for the offices of the President and Vice-President." The key word is "preliminarily" which means its work is preparatory, 11 a mere prelude. The preliminary work is performed by the Joint Committee by satisfying itself — (1) that each certificate of canvass was duly executed, signed and thumb marked by the Chairman and Members of the provincial, city or district Board of Canvassers concerned; (2) that it contains the names of all the candidates for President and Vice-President and their corresponding votes in words and figures; and (3) that there exists no discrepancy in other authentic copies of the certificate of canvass or discrepancy in the votes of any candidate in words and figures in the same certificate. 12 Provisions were then crafted to deal with certain concrete problems. Rule VIII, Section 15, deals with the situation when the certificate of canvass, duly certified by the Board of Canvassers of each province, city or district, appears to be incomplete. In this case, the Senate President shall require the Board of Canvassers concerned to transmit by personal delivery, the election returns from polling places that were not included in the certificate of canvass and supporting documents. Rule VIII, Section 16, applies when there is an omission in the certificate of canvass of the name of any candidate and/or the votes obtained by any candidate. In this case, the President of the Senate is mandated by the rule to summon, in the most expeditious manner, the provincial, city or district Board of Canvassers concerned to supply the missing data in the certificate of canvass and to authenticate the same by affixing their signatures thereon. Rule VIII, Section 17, is apt when it appears that any certificate of canvass or supporting statement of votes by precinct bears erasures or alterations which may cast doubt as to the veracity or authenticity of the number of votes stated therein and may affect the result of the election. Upon request of the Presidential or Vice-Presidential candidate concerned or his party, the rule requires Congress itself, for the sole purpose of verifying the actual number of votes cast for President and Vice-President, to count the votes as they appear in the copies of the election returns submitted to it. Rule VIII, Section 18, deals with the situation when the transmittal of the copy of the certificate of canvass is delayed. The rule directs the Senate President to obtain said delayed certificate of canvass from the provincial, city or district Board of canvassers concerned. The same Section 18 likewise addresses the situation when the certificate of canvass has been lost, destroyed or is otherwise unavailable. The rule requires the Joint Committee to immediately request the COMELEC for its authentic copy of said certificate of canvass. The Rules give the Joint Committee the necessary powers to discharge its duty. Rule VIII, Section 20, grants it the power of contempt. It can punish for contempt any person who commits disorderly behavior during its session. Rule VIII, Section 21, accords to it the right to request from the COMELEC technical assistance for purposes of the canvassing of votes. When there is any doubt regarding the authenticity and due execution of the certificate of canvass, the Joint Committee, may require the personal appearance of the chairmen and members of the

provincial, city or district Board of Canvassers. Rule VIII, Section 22, empowers the Committee to avail of the services of an independent accounting/auditing firm to assist in the tabulation and canvass of votes. The Rules then provide for the Report to be submitted by the Joint Committee. Two kinds of reports can be submitted by the Committee to the joint public session: One is the interim report which the Committee, in its discretion, may submit whenever there is a need for guidance or direction from Congress. Second is the final report containing the objections raised on certain certificates of canvass and the rulings of the Committee. Rule IX, Section 25, requires that every member of the Committee shall be provided a copy of the final report and shall be given twenty-four (24) hours within which to submit his concurring or dissenting opinion. At least a majority of the members from each House shall sign the final report. The final report shall then be submitted to the joint public session for its approval. aDATHC

Rule IX, Section 26, then provides the manner on how the final report shall be debated by the joint public session. Various speakers are allowed to speak for or against the final report during the joint public session. First, the member designated by the Joint Committee shall speak in favor of the final report for not more than one (1) hour. Second, the member designated by those against shall be given the same time. Third, subsequent speakers for or against the report shall be allowed to speak for not more than three (3) hours. Fourth, one (1) speaker for each candidate shall be given the opportunity to speak for not more than twenty (20) minutes. After the debates, the Joint Committee report and the accompanying resolution have to be approved by majority of all the members of both Houses voting separately in the joint public session. The Presidentelect and the Vice-President-elect shall then be proclaimed through the President of the Senate and the Speaker of the House of Representatives. The Constitution, the Rules, as well as jurisprudence, inform us of the nature of the work of Congress as the national canvassing board of the votes cast for the highest elective positions in the land and how it should be discharged. They establish the following indubitable postulates, viz.: First. When Congress convenes in joint public session as a national canvassing board, it is not meeting as a lawmaking body. Its function as a canvassing board is not to make laws but to count the votes cast by the electorate for the Presidency and the Vice-Presidency. As we succinctly held in Cordero v. Judge of First Instance of Rizal, 13 while the Board of Canvassers is made up of legislators, it does not act in its capacity as a maker of laws but as an entirely different and distinct entity organized for a specific purpose. The Board of Canvassers exists for a specific function, that is, to canvass the result of the election as shown in the election returns and to proclaim the winning candidates. 14 The exercise of the power of canvassing of votes is more akin to the discharge of an administrative power. Second. As canvassers of votes for the positions of President and Vice-President, our lawmakers are to discharge their duties with fairness and impartiality.

Canvassing is an important part of the process of determining the choice of our sovereign people on who ought to be our President and Vice-President, the two highest elective posts in our country. Thus, in making the canvass, our lawmakers should act more as representatives of the people and less as partisans of political parties. For this reason, Article VII, Section 4 of the 1987 Constitution did not give any significance to the political affiliation of the lawmakers when they are discharging their duty as canvassers. In cadence, Rule VIII, Section 13, bars a member of Congress who is a candidate for President or Vice-President from sitting in the Joint Committee. Stated otherwise, lawmakers when canvassing votes, should keep their eyes open but should shut them off to any political light. The members of city, provincial and district boards of canvassers canvass the votes appertaining to our lesser elective officials yet they are enjoined to be non partisan in the discharge of their duties. No less can be expected from members of Congress acting as the national board of canvassers. In fine, when our legislators acting as canvassers add 1 + 1, the sum should be 2, regardless of their political affiliation. Third. Congress can only proclaim as President-elect and Vice-President-elect they who, on the basis of the election documents required by law, such as the certificates of canvass, election returns and statements of votes, have established, at the very least, a prima facie title to said offices. No candidate who has failed to establish a colorable legal title to the positions of President and Vice-President can be proclaimed and be endowed with the awesome mandate to govern our people. Democracy disdains the rule and reign of the unelected. Fourth. In canvassing the votes, our lawmakers are to determine the authenticity and due execution of the certificates of canvass in the manner provided by law. Republic Act No. 7166, Section 30, prescribes the manner by which certificates of canvass are deemed authentic and duly executed. Read as a whole, Section 30 states that Congress must examine each certificate of canvass not only on its face, but also vis-à-vis the statement of votes and election returns when necessary. This law is binding on Congress acting as a canvassing body. Rightly, the relevant provisions of R.A. No. 7166 were incorporated in the Rules. As a canvassing body, Congress has no lawmaking power and hence cannot amend or repeal R.A. No. 7166. It has therefore no discretion to disregard R.A. No. 7166. The Rules of the Joint Public Session of Congress on Canvassing the Votes Cast for Presidential and Vice-Presidential Candidates in the May 10, 2004 Elections have to be read, interpreted and enforced in consonance with R.A. No. 7166. Fifth. The determination of the authenticity and due execution of the certificates of canvass cannot be done in a robotic manner. R.A. No. 7166 and the Rules look upon our lawmakers not as unthinking slot machines when conducting the canvass. For this reason, the law and the rules require that due consideration be given not only to the certificates of canvass but also to the election returns and the statement of votes. In other words, the search for the truth about the true will of the electorate should not be confined to the four corners of the certificates of canvass. The truth, if blocked by the opaque face of the certificates

of canvass, must be extracted from the election returns and statements of votes. It is self-evident that discovering and distilling the truth of who were really elected by our people for the positions of President and Vice-President deserve more than a mechanical effort. Sixth. The determination of the authenticity and due execution of the certificates of canvass calls for the exercise of discretion. It is self-evident that reconciling discrepancies in the certificates of canvass vis-à-vis, among others, the election returns and statements of votes involves intelligent judgment. It is for this reason that in the discharge of its functions, the Joint Committee was clothed with certain powers. It can request technical assistance from the COMELEC. It can require the personal appearance of the chairmen and members of the provincial, city or district Board of Canvassers. It can avail of the services of an independent accounting or auditing firm. It has the awesome power to punish for contempt any person who commits disorderly behavior during its session. More importantly, the Rules require that our lawmakers decide the authenticity and due execution of the certificates of canvass only after a full debate by members of Congress. In fine, determining the authenticity and due execution of certificates of canvass cannot be done by adding machines. cHSIAC

Seventh. The primary consideration in determining the authenticity and due execution of the certificates of canvass is accuracy — accuracy in determining the sovereign will of the people. The need to fast track the determination of the will of the people pales in comparison with this consideration. It is a travesty of democracy for the people to be governed by people without a mandate. The nation can endure a slow but trustworthy tally. It may not survive an indefensible count, however speedy it may be. Eight. The determination of the authenticity and due execution of the certificates of canvass is governed by a distinct process to insure that when it reaches its end, the ones who will be proclaimed President-elect and Vice-President-elect can, at the very least, have a colorable claim to said offices. This colorable claim can only be established after full debate on the authenticity and due execution of the certificates of canvass in light of other election documents such as election returns and statements of votes and the testimonies of the chairmen and members of the provincial, city, or district board of canvassers, in appropriate cases. The debate contemplated is one that will elicit the truth as to the choice of the people, hence, the Rules provide the following, viz.: (a) each candidate is allowed two (2) watchers who shall have access to an unimpeded view of the entire proceedings; (b) each candidate is likewise allowed lawyers who may argue and question any certificate of canvass; (c) upon the opening of the certificates of canvass, observations and objections of any member of Congress with reference to the condition of their envelope, seal and serial number shall already be entered into the records and shall be considered during the proceedings of the Joint Committee; (d) the Joint Committee is composed of eleven (11) members from the Senate to be appointed by the President of the Senate and eleven (11) members from House of Representatives to be appointed by the Speaker. To insulate it from partisan politics, a member of Congress who is a candidate for President or Vice-

President is barred from appointment to the Joint Committee; (e) the Representative of the province or city whose certificate of canvass is being canvassed is made ex-officio member of the Joint Committee, without voting rights, for the duration of the canvassing of the aforesaid certificate of canvass; (f) remedies are provided for in cases where a certificate of canvass is incomplete or with omissions or where it is lost destroyed or otherwise unavailable; (g) the Joint Committee is given the authority to avail of the technical assistance of the COMELEC and of the services of an independent accounting or auditing firm for the proper discharge of its task; (h) after the Certificate of Canvass and statement of votes have been tabulated by the Committee, any member of Congress may request in writing for copies thereof from the secretariat prior to the consideration of any interim or final report to the joint public session; (i) the interim and final report shall contain the objections raised and the rulings thereon by the Joint Committee; (j) every member of the Joint Committee is given twenty-four (24) hours from receipt of the final report within which to submit his concurring or dissenting opinion; (k) the final report is then forwarded to the joint public session for debate. A member of the Joint Committee is given one (1) hour to speak in favor of the final report; another member of the Committee is given also one (1) hour to speak against the report; other speakers for or against the report are further allowed to speak for not more than three (3) hours; and one (1) speaker for each candidate is given the opportunity to speak for not more than twenty 20 minutes; (1) after full debate, the final report is submitted to a vote by the joint public session, each House voting separately. In case the two Houses disagree, the decision of the President of the Senate, in consultation with the Speaker of the House of Representatives, will prevail. AEIcTD

The process may be long and laborious but it has a purpose. It is designed to give our lawmakers all the facts and all the arguments necessary for an informed and intelligent judgment in determining the authenticity and due execution of the certificates of a canvass. It demands that the evidence, the arguments of the parties, and the applicable law should be meticulously weighed by the lawmakers before they pass judgment on whether to canvass the votes in the certificates of canvass. The objections to their authenticity and due execution should be given their appropriate consideration. An unreasoned or unreasonable judgment by Congress runs the risk of rejection in the parliament of the street of the people. And the danger is that we may not just face a mute multitude. Ninth. The laws and the rules give clear rights to the candidates. Candidates to the position of the President and Vice-President cannot be denied due process. Thus, they are allowed watchers. They are entitled to lawyers who can question any certificate of canvass before the Joint Committee. When the final report is up for voting by the joint public session of Congress, they can have speakers to defend their interest. Candidates are also entitled to the equal protection of the law. They cannot be subjected to discriminatory treatment. All these and their other constitutional rights are not suspended during the canvass. Tenth. The law and the rules likewise impose duties on Congress as a canvassing board. Congress must be an outpost of openness. The canvassing must be

transparent. Lawmakers must conduct the canvassing without a taint of arbitrariness. The worse type of arbitrariness is arbitrariness that runs roughshod over the sovereign will of the people. Prescinding from these predicates, I find no difficulty in voting to dismiss the petition at bar. The Rules of the Joint Public Session of Congress on Canvassing the Votes Cast for Presidential and Vice-Presidential Candidates in the May 10, 2004 Elections do not violate Article VII, Section 4 of the 1987 Constitution. To begin with, the Constitution grants Congress the power to promulgate its own rules for the canvassing of election certificates. The Rules enjoy the presumption of legality and the petitioner has miserably failed to overcome this presumption. The argument that the creation of the Joint Committee constitutes an undue delegation of legislative power is an egregious error. As a canvassing board, Congress exercises no legislative power and therefore did not delegate any. In creating the Joint Committee, Congress did not abdicate its constitutional duty to determine the authenticity and due execution of the certificates of President and Vice-President in the May 10, 2004 election. Even a side-glance at the powers and prerogatives of the Joint Committee will subvert petitioner's submission. The function of the Joint Committee is laid down in Rule VIII, Section 14. To stress again, it shall satisfy itself that (1) each certificate of canvass was duly executed, signed and thumb marked by the Chairman and members of the provincial, city or district board of canvassers concerned; (2) it contains the names of all the candidates for President and Vice-President and their corresponding votes in words and figures; and (3) there exists no discrepancy in other authentic copies of the certificate of canvass or discrepancy in the votes of any candidate in word and figures in the same certificate. In the performance of this function, the Joint Committee has to prepare a Report which will contain the objections raised by the parties on the admission of the certificates of canvas concerned and its rulings thereon. Rule VIII, Section 13, emphasizes that the canvass of the Joint Committee is a mere preliminary canvass. The rulings of the Joint Committee reflected in its Report are merely recommendatory in nature. Its Report is yet to be submitted to the joint public session of Congress for approval, each House voting separately. The constitutional canvassing duty of Congress is therefore preserved and remains undiminished. cAHDES

Nor is the right of petitioner as lawmaker — canvasser unduly prejudiced by the creation of the Joint Committee. The proceedings of the Joint Committee are open and transparent. Under Rule VIII, Section 22, after the certificates of canvass and the statement of votes have been tabulated by the Joint Committee, petitioner, like any other member of Congress, may request in writing for their copies prior to the consideration of any report by the Committee to the joint public session. Under Rule IX, Section 26, petitioner may speak for or against the final report of the Joint Committee whose findings and rulings are non-binding to the joint public session of Congress. His right to vote for or against the final report of the Joint

Committee therefore stands undiluted. In truth, the creation of a Joint Committee to preliminarily canvass the results of the Presidential and VicePresidential election is compelled by the need to hasten the canvass considering that our laws have set a deadline for proclamation. History is studded with insights. The practice of creating a Joint Committee was resorted to by Congress in the 1961, 1965, 1992 and 1998 elections. Its effectiveness has been proven. IN VIEW OF THE FOREGOING, I vote to dismiss the petition. QUISUMBING, J.: In this petition before us for prohibition and mandamus under Rule 65 of the Rules of Court, petitioner invokes the extraordinary jurisdiction and duty of the Supreme Court pursuant to the Constitution, Article VIII, Section 1, par. 2, "to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." SIaHDA

Yet, basing on his arguments, we can say that the pith of petitioner's plea goes deeper than the averment of personal exclusion from the select panel tasked as "a joint committee of Congress to Canvass the votes cast for Presidential and VicePresidential candidates in the May 10, 2004 national elections." He assails the Rules * that Congress passed on May 28, 2004 because, in his view, the Rules "effectively amends and abrogates" certain provisions of the Constitution, particularly Section 4, Article VII, which give Congress the power and authority to promulgate rules for said committee as the Board of National Canvassers. Further, he charges the Congress of unlawful neglect in the performance of duty enjoined by the Constitution because, by its passage of said Rules, Congress as a whole delegated unlawfully its tasks as canvasser at the highest level to a mere joint committee of eleven Senators and eleven Congressmen. * Noteworthy, he raises expressly before us only one issue: "Whether or not the Rules of the Joint Public Session of Congress on Canvassing the Votes Cast for Presidential and Vice-Presidential Candidates in the May 10, 2004 Elections are Valid, Legal, and Constitutional."

He marshals his arguments abovecited to advance the thesis that said Rules are invalid, illegal, and unconstitutional. But by prefacing his plea to us on the principle of the tripartite separation of powers of government and the principle of potestas delegata non potest delegari, he also triggers implicitly a second issue: whether the court possesses jurisdiction over the subject matter he brings. In the Resolution dated 4 June 2004, we denied petitioner's prayer for issuance of a temporary restraining order. Without giving due course to the petition, we required respondents herein and the Solicitor General to comment. On June 7, 2004, before noontime, we received the Comment of respondent Senate of the Philippines, the Comment/Opposition by respondent House of Representatives, and the Comment by the Office of the Solicitor General. * After a thorough dissection of the issue

raised by petitioner, we find that the respondents rightly prayed for dismissal of the petition outright, "for lack of constitutional and legal basis" ** and "for lack of merit". *** ADECcI

In denying the issuance of a temporary restraining order, we were not unmindful of the prevailing air of anxiety and popular perception that the canvass of votes for the two highest positions of government is overdue. Announcement of the election results cannot be delayed for weeks by mere technicalities. At the same time, a majority of nine members of the Court were of the considered opinion that the views of the opposition parties need to be fairly and fully ventilated in a neutral forum that could render the appropriate relief. Despite prevailing doubts on the possible pre-emption of the functions reserved by the Constitution, Article VII, Sec. 4, to the Presidential Electoral Tribunal, we could not let the petitioner go away empty handed simply because he failed to attach his affidavit of service to the petition. Majority of the Court members believe it is in the public interest that comments on the petition be required from herein respondents as well as the people's tribune, the Solicitor General. Thereafter, the Court could promptly rule on the merits of the petition, provided the members are satisfied that the vital requirements of constitutional litigation, including the existence of a case and controversy, lis mota, ripeness, locus standi and justiciability, are clearly met. As a member of the House of Representatives, believing that he was prejudiced gravely by that chamber's action, petitioner has in his favor the requisite personality (locus standi) to bring this suit before us. This we need not belabor. But it still behooves us to determine, at the very inception of our discourse, whether the issue raised by petitioner is one that is justiciable rather than a political question. By itself, the threshold requirement of justiciability, which is to say the appropriateness of a subject matter for judicial consideration, is trumped by the assertion of the political question doctrine, perhaps rendering certain government conduct immune from judicial review. * ECcaDT

In Tañada v. Cuenco, (103 Phil. 1051) the Court defined political questions as those "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 (Id. at p. 1065). ** This formulation evolving from the separation of powers doctrine has been sharpened by saying that challenges on the constitutionality of a law should be resolved by the Court while doubts on the wisdom of law should be debated in the halls of Congress. (Tatad v. Secretary, 281 SCRA 347). More recently, Francisco, Jr. v. HR, (G.R. No. 160261, decided Nov. 10, 2003), gave us the opportunity for further distinction. Per Madame Justice Carpio-Morales, "the determination of a truly political question from a non-justiciable political question lies in the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality of the government properly acted within such limits." To that extent, we consider Nixon v. United States, 506 U.S. 224, cited by the OSG, inappropriate. Instead we find instructive the ruling in U.S. v. Ballin, Joseph & Co., 144 U.S. 1, which held that while each House of Congress is empowered by the

Constitution to determine its rules of proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights. Procedurally, it must be stressed that the petitioner in an action for mandamus has the burden to show a clear, certain, and well-defined right to the relief sought. (Sales v. Mathay, G.R. No. L-39537, 31 May 1984, 129 SCRA 180, 183.) Mandamus cannot compel the performance of a discretionary duty. Further, an action for prohibition, as a rule, lies only against judicial or ministerial functions, but not legislative functions. (Ruperto v. Torres, G.R. No. L-8785, 25 Feb. 1957.) Be that as it may, considering the crucial importance of the matter at hand, not just for the moment but also for the future of a nation beset by crises after crises, it is our view that a prompt consideration of the instant petition is called for. As well said in Bondoc v. Pineda, 201 SCRA 792, "a showing that plenary power is granted [to another branch of the government] is not an obstacle to judicial inquiry, for the improvident exercise or the abuse thereof may give rise to a justiciable controversy." Nevertheless, with due respect to a co-equal branch, interference with the adoption and implementation of internal rules of Congress is furthest from our mind. Indubitably, per the Constitution, Art. VII, Sec. 4, it is Congress and not any other organ of the State which shall promulgate the rules for the canvassing of the certificates of votes for the President and the Vice-President. Indeed we recognize the plenary power of Congress to enact its own internal rules on the matter. (Osmeña v. Pendatum , 109 Phil. 863. See also Arroyo v. De Venecia, 277 SCRA 268). What prompts us today to look into the present petition is the duty to say what the law is, as a matter of constitutional prerogative by way of judicial review. * To abdicate that duty is to invite lawlessness and disorder. If only for edification, let us now focus on petitioner's complaint. He alleges that "the questioned Rules of Congress call for the creation of a Joint Committee under Section 13, Rule VIII thereof, which provides that the Joint Committee shall: (a) be composed of eleven (11) members from the Senate to be appointed by the Senate President and eleven (11) members from the House of Representatives to be appointed by the Speaker; (b) sit en banc or, in its discretion, in two (2) divisions of eleven members each; (c) determine the authenticity and due execution of the certificates of canvass; and (d) preliminarily canvass the votes of candidates for the offices of President and Vice-President." * HECTaA

Petitioner concludes that the Rules thus "(a) removed from the Congress as one whole body and transferred to the Joint Committee of Congress the duty and function of determining the authenticity and due execution of the certificates of canvass, and (b) removed from the Congress as one whole body and transferred to the Joint Committee of Congress the duty and function of canvassing the votes cast for presidential and vice-presidential candidates." * "Such removal and transfer of canvassing tasks from the constitutionally mandated

entity to the Joint Committee is directly contrary to the Constitution itself," according to petitioner. "There is absolutely nothing in the Constitution which allows expressly or by inference such removal and transfer of canvassing tasks from Congress as one whole body to another entity," he adds. "Neither is there anything in the constitution which allows any substitution of the Congress as one whole body in the performance of the constitutionally mandated canvassing tasks. Section 4, Article VII of the Constitution cannot be any clearer on the matter." With the alleged delegation and transfer to a Joint Committee of the task of canvassing the votes cast for Presidential and Vice-Presidential candidates, he contends, "the canvassing of the votes will be done by and only before the Joint Committee . . . composed of only 11 members from the Senate and 11 members of the House of Representatives. Petitioner and all other members of both Houses of Congress who are not members of the Joint Committee of Congress have thus been unduly deprived of their rights and prerogatives as incumbent members of Congress to be present at, observe and participate in the canvassing of votes. . ." * Respondent House of Representatives, thru its Speaker Jose de Venecia, traverses petitioner's allegations. Joint Committees, according to De Venecia, are constituted primarily to facilitate the work of the two houses of Congress. The use of the joint committee system, he adds, is a well recognized and established practice. Such was the mode, he says, in canvassing the Presidential and Vice-Presidential votes during elections held on 1957, 1961, 1965, 1969, 1992, and 1998. ** Even assuming that the principle of delegata potestas non potest delegari applies, nevertheless he submits that such delegation by the Congress is a valid delegation of powers beyond cavil, for Congress retains its control over the canvassing process, and the ultimate decision on the matter is lodged in Congress itself. On this score, we are in agreement. Equally important, we also agree with the Speaker that when acting as the National Board of Canvassers, Congress is not engaged in legislation, hence no issue of undue delegation of legislative power need arise. In any event, we are assured by respondent Senate, through its President Franklin M. Drilon, that contrary to the assertion of the petitioner, he is not deprived of any right or prerogative by the Joint Committee under its Rules that he now assails. Petitioner's participation in the canvassing remains guaranteed under the Rules of the Joint Public Session, thus: "SEC. 19. The Joint Committee, whether en banc or in divisions, shall decide any question involving the certificate of canvass by a majority vote of its Members, each House panel voting separately. Any such decision shall be subject to approval by the joint session, the Senate and House of Representatives voting separately. In case the two Houses disagree, the decision of the President of the Senate, in consultation with the Speaker of the House of Representatives, shall prevail. xxx xxx xxx SEC. 23. The Joint Committee, en banc or divisions, shall meet eight (8) hours a day from Monday to Friday until all the certificates of canvass

referred to it by the joint public session shall have been canvassed. The final report shall be submitted by the Joint Committee en banc to the joint public session for its approval, each House voting separately. ScHADI

xxx xxx xxx SEC. 24. Notwithstanding the fact that not all certificates of canvass have been received, the Joint Committee may submit to the joint public session its final report with the recommendation to terminate the canvass if the total number of registered voters corresponding to the province, city or district covered by the certificates of canvass not yet transmitted would no longer affect the results of the election. Congress in joint public session, voting separately, shall immediately act on the final report. xxx xxx xxx SEC. 27. Upon termination of the canvass and approval of the Joint Committee report and the accompanying resolution by majority of all the Members of both Houses voting separately in the joint public session, Congress through the President of the Senate and the Speaker of the House of Representatives shall forthwith proclaim the President-elect and Vice-President elect."

By its very nature, either chamber of Congress must act through committees. They make the business of legislation feasible and practicable. Without working committees, the tasks of the Senate or the House would be unmanageable. The same is true of both chambers acting as the National Board of Canvassers. To deprive the Board of the committee system is tantamount to obstructing its work and consigning it to delay and failure. Whether the Joint Committee or Congress as a whole is clothe with ministerial or discretionary powers in the canvass of votes, including the "determination of the authenticity and due execution" relative to the canvass of certificates need not, in my view, preoccupy us now. Nor should the question of fraud and other matters more appropriate for an election protest, if any. What is important now is that the canvass be conducted "in the manner provided by law." * The OSG calls attention, however, to one factor in this controversy: "the avoidance of undue delay in the canvass of certificates to ensure the proclamation of the winning candidates before June 30, 2004 Constitutional deadline" ** Respondent House thru its Speaker bewails "an obvious attempt to stop or delay the current canvassing of votes for both the Presidency and the Vice-Presidency," whereby petitioner, in effect "would cast a cloud of doubt on the elections for the two highest posts of land," including most if not all previous elections. To respondent, such doubt would have staggering implications. *** As the Solicitor General keenly observed: "In the judgment of the Congress, to require the whole Congress to canvass

the certificates would unduly delay the canvassing of votes. This delay may prove detrimental to the national interest. Far from undermining the Constitution, the creation of the joint canvassing committee will ensure that the elected President and Vice-President shall assume office at noon of June 30, 2004, in accordance with the Constitution. The national interest would be best served by deferring to this policy decision made by the Congress." *

WHEREFORE, finding no clear and adequate basis to declare that there is a grave abuse of discretion on the part of the respondents, I vote that the instant petition be DISMISSED for lack of merit. CARPIO-MORALES, J., concurring: I join in the Resolution dismissing the instant petition, and in addition, I would like to make the following observations. By his Petition for Prohibition and Mandamus (Petition), petitioner Ruy Elias C. Lopez, incumbent Representative of the 3rd Legislative District of Davao City, seeks: HICEca

(1)

a judgment declaring null and void the Rules of the Joint Public Session of Congress on Canvassing the Votes Cast for the Presidential and Vice-Presidential Candidates in the May 10, 2004 Elections (Rules on Canvassing) adopted by both Houses of Congress on May 28, 2004;

(2)

the issuance of a writ of prohibition directing all of respondents to cease and desist from implementing the Rules on Canvassing; and

(3)

the issuance of a writ of mandamus directing both Houses of Congress "to immediately open the certificates of canvass in the presence of the Senate and House of Representatives in joint public session, and the Congress to determine the authenticity and due execution thereof in the manner provided by law and canvass the votes as expressly commanded under Section 4 (paragraph 4), Article VII of the Constitution . . . ." 1

Petitioner advances the following arguments in support of his Petition: ARGUMENTS The Aforementioned Rules of Congress Dated May 28, 2004 Constitute an Unconstitutional Delegation of Legislative Power to a Joint Committee of Congress. The Aforementioned Rules of Congress Dated May 28, 2004 Constitute an Unconstitutional Amendment of Section 4, Article VII of the Constitution. The Aforementioned Rules of Congress Dated May 28, 2004 Constitute an Unconstitutional Deprivation and Derogation of the Rights and Prerogatives

of Petitioners [sic] as Members [sic] of Congress. By the Passage of the Aforementioned Rules Dated May 28, 2004, Congress has Unlawfully Neglected the Performance of an Act which the Constitution Specifically Enjoins as a Duty Resulting from Office. 2

In fine, the Petition raises two issues for resolution. First, whether the Rules on Canvassing constitute an unconstitutional delegation of a non-ministerial power vested exclusively by the Constitution in the Congress as a whole. Second, whether the Rules on Canvassing deprives petitioner of his alleged rights and prerogatives to be present, observe and participate in the determination of the authenticity and due execution of the Certificates of Canvass for President and Vice-President. As always, in exercising its power of judicial review, 3 this Court does not assert any superiority over a co-equal branch of the government, but merely acts pursuant to its mandated duty to determine whether an organ of government has acted within the restrictions and limitations imposed by the Constitution. 4 Where an act of Congress is shown to have outstripped the boundaries set by the Constitution, this Court has not hesitated to declare the same null and void. 5 But, at the same time, where constitutional infirmity has not been proven, this Court is duty bound to uphold and respect the actions of the Legislature. 6 Matters of procedure and jurisdiction aside, for the reasons discussed hereunder, I find that the issues raised in the Petition must be decided in the negative. The national canvass of votes for President and Vice-President by Congress is provided for in Section 4, Article VII of the Constitution, as follows: cSEAHa

Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date six years thereafter. The President shall not be eligible for any reelection. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time. No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected. Unless otherwise provided by law, the regular elections for President and Vice-President shall be held on the second Monday of May. The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the

Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately. The Congress shall promulgate its rules for the canvassing of the certificates. The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or VicePresident, and may promulgate its rules for the purpose. (Emphasis supplied)

Petitioner maintains that the foregoing solely and exclusively vested three tasks on Congress, in its capacity as the National Board of Canvassers, to wit: a)

the President of the Senate shall open all the certificates of canvass in the presence of the Senate and House of Representatives in joint public session,

b)

Congress shall determine the authenticity and due execution of all certificates of canvass in the manner provided by law, and

c)

Congress shall canvass the votes for presidential and vice-presidential candidates. 7

Petitioner then argues that the following portions of the Rules on Canvassing: Sec. 13. A Joint Committee shall be created composed of eleven (11) members from the Senate to be appointed by the President of the Senate and eleven (11) members from the House of Representatives to be appointed by the Speaker. The Members of each House panel shall elect among themselves their respective Chairman in the Joint Committee. The Joint Committee may sit en banc or, in its discretion, in two (2) divisions of eleven members each composed of a chairman, five (5) members from the Senate and five (5) from the House of Representatives: Provided, That a Member of Congress who is a candidate for President or Vice-President shall not be eligible for appointment to the Joint Committee. Each division shall be chaired by a Chairman of the Committee. The Joint Committee shall, upon determination of the authenticity and due execution of the certificates of canvass, preliminarily canvass the votes of candidates for the offices of President and Vice-President. The Representative of the province or city whose certificate of canvass is

being canvassed shall be an ex-officio member of the Joint Committee, without voting rights, for the duration of the canvassing of the aforesaid certificate of canvass. Sec. 14. The Joint Committee, en banc or in divisions, shall satisfy itself that each certificate of canvass was duly executed, signed and thumbmarked by the Chairman and Members of the provincial, city or district Board of Canvassers concerned; that it contains the names of all the candidates for President and Vice-President and their corresponding votes in words and in figures; and there exists no discrepancy in other authentic copies of the certificate of canvass or discrepancy in the votes of any candidate in words and figures in the same certificate. . . . Sec. 19. The Joint Committee, whether en banc or in divisions, shall decide any question involving the Certificate of canvass by a majority vote of its Members, each House panel voting separately. . . . (Rule VIII). 8 (Emphasis and underscoring supplied)

removed from Congress and transferred to the Joint Committee the functions of (a) determining the authenticity and due execution of the certificates of canvass and (b) canvassing the votes for President and Vice-President, in contravention of the Constitution. This argument fails. First, contrary to petitioner's assertions, the functions of determining the authenticity and due execution of the certificates of canvass and the actual canvassing of votes are both ministerial functions. Thus, in Lopez v. Roxas, 9 this Court, noting that the function of Congress as the National Board of Canvassers was essentially just like that of any municipal, city or provincial board of canvassers, held: CSHcDT

Needless to say, the power of Congress to declare who, among the candidates for President and/or Vice-President, has obtained the largest number of votes, is entirely different in nature from and not inconsistent with the jurisdiction vested in the Presidential Electoral Tribunal by Republic Act No. 1793. Congress merely acts as a national board of canvassers, charged with the ministerial and executive duty to make said declaration, on the basis of the election returns duly certified provincial and city boards of canvassers. Upon the other hand, the Presidential Electoral Tribunal has the judicial power to determine whether or not said duly certified election returns have been irregularly made or tampered with, or reflect the true result of the elections in the areas covered by each, and, if not, to recount the ballots cast, and incidentally thereto, pass upon the validity of each ballot or determine whether the same shall be counted, and, in the affirmative, in whose favor, which Congress has power to do. 10 (Emphasis and underscoring supplied; italics in the original)

Petitioner, however, contends that the foregoing no longer holds since, unlike the

1935 or 1973 Constitutions, the 1987 Constitution vested Congress, as the National Board of Canvassers, with "more than merely ministerial functions." In particular, petitioner contends that the determination of the authenticity and due execution of the certificates of canvass necessarily "requires the exercise of sound discretion based upon informed judgement through the use of the faculty of the intellect." 11 Petitioner is mistaken. A ministerial duty is one which is clear and specific leaving no room for the exercise of discretion in its performance. Upon the other hand, a discretionary duty is that which by its nature requires the exercise of judgment. 12 In general, the duty of a board of canvassers has been held to be purely ministerial in function, its task being limited to mathematically computing the results of the elections on the basis of the documents submitted to it. Thus, in Demafiles v. Commission on Elections, 13 this Court held: First, a canvassing board performs a purely ministerial function — that of compiling and adding the results as they appear in the returns transmitted to it. This is the teaching in Nacionalista Party v. Commission on Elections : "the canvassers are to be satisfied of the genuineness of the returns — namely, that the papers presented to them are not forged and spurious, that they are returns, and that they are signed by the proper officers. When so satisfied, . . . they may not reject any returns because of informalities in them or because of illegal and fraudulent practices in the elections." Thus, they cannot pass upon the validity of an election return, much less exclude it from the canvass on the ground that the votes cast in the precinct from whence it came are illegal. But the exclusion of the return in this case is sought to be justified on the ground that it is "obviously manufactured" because, contrary to the statement therein that there were 195 registered voters, of whom 188 voted, the certificate of the local election registrar states that only 182 voters had registered on October 30, 1967. Lagumbay v. Commission on Elections is cited in support of this view. In Lagumbay the returns were palpably false as it was indeed statistically improbable that "all the eight candidates of one party garnered all the votes, each of them receiving exactly the same number, whereas all the eight candidates of the other party got precisely nothing." In other words, the aid of evidence aliunde was not needed, as "the fraud [being] so palpable from the return itself (res ipsa loquitur — the thing speaks for itself), there is no reason to accept it and gives it prima facie value." LLpr

On the other hand, the return in this case shows nothing on its face from which the canvassers might conclude that it does not speak the truth. It is only when it is compared with the certificate of the election registrar that a discrepancy appears as to the number of registered voters. The return therefore is by no means "obviously manufactured" so

as to justify its exclusion. This is not to belittle the respondent's claim that more people than registered voters were allowed to vote in precinct 7. Perhaps that is true, although the petitioner claims that after October 30, 1967 eight more voters were allowed to register (making a total of 190 voters), and on the day of the election 5 voters erroneously assigned to precinct 6 were allowed to vote in precinct 7 because that was where they were really assigned. The point is simply that this question should be threshed out in an election contest. 14 (Emphasis and underscoring supplied)

The foregoing decisions also clearly illustrate that the duty of a board of canvassers to authenticate the documents submitted to it, before tabulating the results is not something new. Indeed, authentication is necessarily included in the task of canvassing since only genuine documents which are in due form may be canvassed. This, however, does not imply that a board of canvassers also exercises adjudicatory powers to assume jurisdiction over allegations of electoral fraud or irregularity. Such allegations may only be threshed out through an election contest before the proper adjudicatory body. Thus, in Dizon v. Tizon, 15 this Court held: We are of the opinion that the dismissal of the petition below is correct, and that the remedy now sought against such dismissal should be denied. 1. The election return for precinct No. 18 of Dinalupihan is not "obviously manufactured" within the meaning of our decision in Lagumbay vs. Commission on Elections , G.R. No. L-25444, January 21, 1966. The said return, as found by the lower court, is regular and complete on its face. In fact, when it was canvassed by the provincial board of canvassers on December 7, 1967, the petitioner did not raise any objection to it or point to any defect or infirmity in its contents. The discrepancy on which the petition was based is not one which appears on the face of the return, but between the statement therein that 279 ballots had been cast and an entirely different document, namely the certification of the election registrar that only 80 voters actually voted. This certification, as correctly explained by the trial court, was not material insofar as the board of canvassers was concerned, since its ministerial duty was to read and canvass the results of the election on the basis of the returns, once satisfied that the same were genuine. aADSIc

xxx xxx xxx If there was any fraud or irregularity committed in the election in said precinct; if, for example, some ballots were filled and cast by persons other than the registered voters themselves, the election return could not, for that reason, be considered as obviously manufactured. It would still reflect the actual number of ballots found and counted, and the remedy to correct the anomaly would be an election contest, not a petition to exclude the return in question from the canvass and thus virtually annul the election in that precinct. 16 (Emphasis and underscoring supplied)

And in Abella v. Commission on Elections, 17 this Court stated: . . . The issue is the refusal of the COMELEC to consider objections to 24 election returns on which the board of canvassers had not made a written ruling. But it would seem that, strictly speaking, no ruling was necessary, or even proper. By the petitioners' own contention "in all those 24 returns, the Christian name, nickname or maternal surname of private respondent's husband was used with her Christian name or nickname which, as we will show at length infra, did not constitute a valid vote for private respondent. If so, the total 1,912 votes in these returns credited for private respondent should be discounted." This matter was obviously beyond the competence of the board of canvassers to resolve. Neither was it cognizable in a pre-proclamation controversy before the COMELEC as defined in Section 243 of the Omnibus Election Code. This provision reads as follows: Sec. 243. Issues that may be raised in pre-proclamation controversy. — The following shall be proper issues that may be raised in a pre-proclamation controversy: (a)

Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code; (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. The inclusion or exclusion in the canvass of certain election returns where votes allegedly cast for Emeterio Larrazabal were counted for his wife is an issue appropriate in an election contest and not in a pre-proclamation controversy. And it is also immaterial that, as also contended, the inclusion of such votes would affect the over-all results of the election and swing it in his favor. The accepted rule is that as long as the returns appear to be authentic and duly accomplished, the board of canvassers cannot look beyond them to verify allegations of irregularities in the casting or the counting of the votes. These issues cannot be resolved by the board of canvassers. A long line of decisions has established the doctrine that the board of canvassers has only the ministerial task of tallying the votes as reported in the election returns and cannot exercise the judicial power of deciding an election contest. 18 (Emphasis and underscoring supplied) ACIDTE

It does not appear from the text of Section 4, Article VII of the Constitution that the phrase "upon determination of authenticity and due execution [of the certificates of canvass] in the manner provided by law" was intended to confer anything more than a ministerial duty on Congress and the National Board of Canvassers. In fact, when this very point was raised during the deliberations of the Constitutional Commission, Commissioner Maambong, the author of the amendment expressly clarified that the duty of the National Board of Canvassers was ministerial in nature, to wit: MR. NOLLEDO: I am referring to the use of the words "upon determination of the authenticity and the execution thereof" on lines 7 and 8, page 2, referring to the certificates of canvass of the President and Vice- (page 391) President. Am I right if I say that because of the use of these words, the duty of the legislature to canvass is no longer ministerial? MR. MAAMBONG: Madam President, the word "ministerial" has always been interpreted by the Supreme Court as applicable to the canvass made by the national Assembly, and the reason why we did not put the word "ministerial" in the Article is, it has been understood in the case of Roxas v. Lopez and in other cases. When we used the words "authenticity" and "genuineness," the question refers to the problem of whether or not the ministerial function is already nonministerial. The answer is, it is still ministerial, but when we say "authenticity and due execution," what it really means is that the national Assembly will look at the certificates of canvass and find out from the face of the document whether there are flaws in the execution and authenticity of the document. That is what it means. MR. NOLLEDO: Madam President, in the event that the legislature finds out that there are serious defects in the certificates of canvass — as when the seals are broken, there are a lot of erasures and then many of them are unsigned and, therefore, authenticity appears to be questionable — what will happen? MR. MAAMBONG: The answer to that is the phrase "in the manner provided by law." The Committee had to insert the phrase "in the manner provided by law" so that the legislature itself will find out and will make it very specific as to what flaws or deficiencies in the certificates of canvass can be taken cognizance of by the canvassing board of tellers, because as of now the guiding

regulations that govern the National Assembly, as I mentioned in the Committee, are: the rules and regulations of the COMELEC, the Omnibus Election Code, the jurisprudence from the decisions of the Supreme Court. All these things taken together, the legislature is given a notice by using the phrase "in the manner provided by law," so that it will make a determination now of what are the points which the board of tellers can take cognizance of, because it is not very clear right now under the laws and regulations, and as a matter of fact, that was one of the controversies which arose during the canvassing of the votes of President Aquino and former President Marcos in the last Batasan. 19 (Emphasis and underscoring supplied)

Indeed a contrary interpretation is not possible because the last paragraph of the very same constitutional provision vests the power to adjudicate electoral controversies concerning the positions of President and Vice-President exclusively with the Supreme Court, viz.: EcTCAD

xxx xxx xxx The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or VicePresident, and may promulgate its rules for the purpose

An examination of Section 30 of Republic Act 7166, the implementing law referred to in the above-cited constitutional provision, removes all doubt as to the ministerial character of the duties and functions of the Congress as the National Board of Canvassers: Sec. 30. Congress as the National Board of Canvassers for the Election of President and Vice-President: Determination of Authenticity and Due Execution of Certificates of Canvass. — Congress shall determine the authenticity and due execution of the certificate of canvass for President and Vice-President as accomplished and transmitted to it by the local boards of canvassers, on a showing that: (1) each certificate of canvass was executed, signed and thumbmarked by the chairman and members of the board of canvassers and transmitted or caused to be transmitted to Congress by them; (2) each certificate of canvass contains the names of all of the candidates for President and Vice-President and their corresponding votes in words and in figures; and (3) there exists no discrepancy in other authentic copies of the certificate of canvass or discrepancy in the votes of any candidate in words and figures in the certificate. When the certificate of canvass, duly certified by the board of canvassers of each province, city or district, appears to be incomplete, the Senate President shall require the board of canvassers concerned to transmit by personal delivery, the election returns from polling places that were not included in the certificate of canvass and supporting statements. Said

election returns shall be submitted by personal delivery within two (2) days from receipt of notice. AISHcD

When it appears that any certificate of canvass or supporting statement of votes by precinct bears erasures or alterations which may cast doubt as to the veracity of the number of votes stated therein and may affect the result of the election, upon request of the Presidential or Vice-Presidential candidate concerned or his party, Congress shall, for the sole purpose of verifying the actual number of votes cast for President and Vice-President, count the votes as they appear in the copies of the election returns submitted to it. (Emphasis supplied)

The foregoing clearly limits the authentication of the certificates of canvass to (1) a physical examination of the certificates themselves to determine whether: (a) each certificate was executed, signed and thumbmarked by the chairman and members of the board of canvassers and transmitted to Congress by them, (b) each certificate of canvass contains the names of all of the candidates for President and VicePresident and their corresponding votes in words and in figures, and (c) there is a discrepancy between the words and figures in the votes of any of the candidates; and (2) a physical comparison to determine any discrepancies between the certificates transmitted to the Congress and the other authentic copies of the certificate of canvass. These tasks are purely mechanical and therefore clearly ministerial in nature and do not require "the exercise of sound discretion based upon informed judgment through the use of the faculty of the intellect." Second, a reading of the questioned Rules on Canvassing shows that there has been no delegation by Congress of its duties as the National Board of Canvassers to an entity separate and distinct from Congress itself. To delegate means to transfer authority from one person to another; to empower one to perform a task in behalf of another; 20 to transfer authority by one branch of government in which such authority is vested to some other branch or administrative agency. 21 By promulgating the questioned Rules on Canvassing, all Congress has done is refer to the Joint Committee the mechanical and ministerial tasks of (1) physically examining the certificates of canvass for irregularities or discrepancies, as provided for in Section 30 of Republic Act 7166, and (2) tabulating the votes of the respective candidates: SEC. 14. The Joint Committee, en banc or in divisions, shall satisfy itself that each certificate of canvass was duly executed, signed and thumb marked by the Chairman and Members of the provincial, city or district Board of Canvassers concerned; that it contains the names of all the candidates for President and Vice-President and their corresponding votes in words and in figures; and there exists no discrepancy in other authentic copies of the certificate of canvass or discrepancy in the votes or any candidate in words and figures in the same certificate. xxx xxx xxx

SEC. 22. The Joint Committee en banc shall tabulate the votes and, for this purpose, may avail of the services of an independent accounting/auditing firm to assist in the tabulation and canvass of votes. After the certificates of canvass and the statement of votes have been tabulated, any Member of Congress may request in writing for copies thereof from the Secretariat prior to the consideration of any interim or final report to the joint session.

However, the same Rules on Canvassing clearly provides that Congress, as a whole, retains control over the canvassing process. Thus, any determination made by the Joint Committee as well as the preliminary canvass itself is subject to the final approval of both House of Congress, voting separately, thus: IHCSTE

SEC. 19. The Joint Committee, whether en banc or in divisions, shall decide any question involving the certificate of canvass by a majority vote of its Members, each House panel voting separately. Any such decision shall be subject to approval by the joint session, the Senate and the House of Representatives voting separately. In case the two Houses disagree, the decision of the President of the Senate, in consultation with the Speaker of the House of Representatives, shall prevail. xxx xxx xxx SEC. 23. The Joint Committee, en banc or in divisions, shall meet eight (8) hours a day from Monday to Friday until all the certificates of canvass referred to it by the joint public session shall have been canvassed. The final report shall be submitted by the Joint Committee en banc to the joint public session for its approval, each House voting separately. SEC. 24. Notwithstanding the fact that not all certificates of canvass have been received, the Joint Committee may submit to the joint public session its final report with the recommendation to terminate the canvass if the total number of registered voters corresponding to the province, city or district covered by the certificates of canvass not yet transmitted would no longer affect the results of the election. Congress in joint public session, voting separately, shall immediately act on the final report. The Joint Committee may, in its discretion, submit interim report to the joint public session whenever there is a need for guidance or direction from Congress: Provided, That objections raised and rulings made thereon shall no longer be included in the final report. SEC. 25. At least a majority of the Members from each House panel shall sign the final report of the Joint Committee. Every Member shall be provided with a copy of the final report and shall be given twenty-four (24) hours within which to submit his concurring or dissenting opinion. SEC. 26. During the joint public session, the Member designated by the Joint Committee shall speak for not more than one hour on the report and

the accompanying resolution approving the report of the Joint Committee, declaring the results of the canvass and proclaiming the President-elect and Vice-President-elect. The Member designated by those against the report shall also speak for not more than one hour. Subsequent speakers for or against the resolution shall be allowed to speak for not more than three hours: Provided, That one (1) speaker for each candidate shall be given the opportunity to speak for not more than twenty minutes. RULE X PROCLAMATION SEC. 27. Upon termination of the canvass and approval of the Joint Committee report and the accompanying resolution by majority of all the Members of both Houses voting separately in the joint public session, Congress through the President of the Senate and the Speaker of the House of Representatives shall forthwith proclaim the President-elect and the Vice-Presidentelect. (Emphasis supplied)

The foregoing provisions also make it abundantly clear that it is Congress, as a whole and meeting in joint session, and not the Joint Committee, which has the ultimate authority to proclaim the winning candidates for President and VicePresident. Petitioner nonetheless insists that even such a referral by Congress to its own Joint Committee is proscribed since the Constitution allegedly requires that the functions of the National Board of Canvassers should be performed by all the members of both Houses of Congress acting together. Thus, so he argues, there is nothing in the Constitution which allows Congress to refer the physical inspection and comparison of the certificates of canvass and the mechanical tabulation of the votes cast for each candidate to the Joint Committee. 22 TCacIA

Petitioner's argument stands a basic principle of Constitutional law on its head. It is axiomatic that the presumption is in favor of constitutionality. 23 To strike down a law or rule as unconstitutional, there must be a clear and unequivocal showing that what the fundamental law prohibits, the law or rule permits. 24 While there is nothing to prevent Congress from undertaking the authentication and canvassing of the certificates through a committee of the whole, if it so chooses, there is also nothing in the text of Section 4, Article VII of the Constitution that prohibits Congress from referring the authentication and tabulation of the certificates of canvass to a bicameral committee. Indeed, the only task expressly required by the Constitution to be done in the presence of the all the Senators and representatives is the opening by the Senate President of all the certificates of canvass at the start of the joint session of Congress. Petitioner's attempt to draw parallels between the canvassing procedure provided for in Section 4, Article VII of the Constitution and the impeachment procedures provided for in Sections 1 to 3 of Article XI 25 does not persuade. A reading of the provisions of Article XI readily demonstrates the detailed manner by which the

Constitution sets forth the procedures for impeachment, even to the extent of specifying the number of session days between each phase of the impeachment process. In contrast, aside from specifying the manner by which the certificates of canvass are transmitted to Congress, the date for the opening of the certificates by the Senate President, and that the person with the highest number of votes shall be proclaimed elected, 26 Section 4 of Article VII gives wide latitude to Congress to determine the manner by which to undertake the canvass of votes. HcACTE

To be sure, there is nothing irregular or sinister in the referral by Congress of the authentication and tabulation functions to the Joint Committee. As a matter of convenience and expediency, both Houses of Congress regularly refer matters to their respective Committees for study and recommendation. In Tolentino v. Secretary of Finance, 27 where the validity of amendments introduced by a bicameral conference committee of both Houses of Congress in a tax bill was put into question, this Court, speaking through Justice Vicente V. Mendoza, held: Nor is there any doubt about the power of a conference committee to insert new provisions as long as these are germane to the subject of the conference. As this Court held in Philippine Judges Association v. Prado, 227 SCRA 703 (1993), in an opinion written by then Justice Cruz, the jurisdiction of the conference committee is not limited to resolving differences between the Senate and the House. It may propose an entirely new provision. What is important is that its report is subsequently approved by the respective houses of Congress. This Court ruled that it would not entertain allegations that, because new provisions had been added by the conference committee, there was thereby a violation of the constitutional injunction that "upon the last reading of a bill, no amendment thereto shall be allowed." Applying these principles, we shall decline to look into the petitioners' charges that an amendment was made upon the last reading of the bill that eventually became R.A. No. 7354 and that copies thereof in its final form were not distributed among the members of each House. Both the enrolled bill and the legislative journals certify that the measure was duly enacted i.e., in accordance with Article VI, Sec. 26(2), of the Constitution. We are bound by such official assurances from a coordinate department of the government, to which we owe, at the very least, a becoming courtesy. (Id., at 710. [Emphasis added]) CSDAIa

It is interesting to note the following description of conference committees in the Philippines in a 1979 study: Conference committees may be of two types: free or instructed. These committees may be given instructions by their parent bodies or they may be left without instructions. Normally the conference committees are without instructions, and this is why they are often critically referred to as "the little legislatures." Once bills have been sent to them, the conferees have almost unlimited authority to change the clauses of the bills and in fact sometimes introduce new measures

that were not in the original legislation. No minutes are kept, and members' activities on conference committees are difficult to determine. One congressman known for his idealism put it this way: "I killed a bill on export incentives for my interest group [copra] in the conference committee but I could not have done so anywhere else." The conference committee submits a report to both houses, and usually it is accepted. If the report is not accepted, then the committee is discharged and new members are appointed. (R. Jackson, Committees in the Philippine Congress , in COMMITTEES AND LEGISLATURES: A COMPARATIVE ANALYSIS 163 (J.D. LEES AND M. SHAW, eds.)) In citing this study, we pass no judgment on the methods of conference committees. We cite it only to say that conference committees here are no different from their counterparts in the United States whose vast powers we noted in Philippine Judges Association v. Prado, supra. At all events, under Art. VI, §16(3) each house has the power "to determine the rules of its proceedings," including those of its committees. Any meaningful change in the method and procedures of Congress or its committees must therefore be sought in that body itself. 28 DSETcC

If parts of the legislative process, which are unquestionably both sovereign and discretionary in character, may be referred to a bicameral committee in the interest of efficiency and expediency, there is no reason why the ministerial tasks of authentication and tabulation of certificates of canvass cannot similarly be referred to the Joint Committee created by the Rules on Canvassing. As a second line of argument, petitioner claims that the Rules on Canvassing unduly deprives him of his rights and prerogatives to be present at, observe and participate in the determination of the authenticity and due execution of all certificates of canvass. 29 Petitioner's claim is without constitutional basis. The rights he asserts are not to be found within the four corners of the Constitution. In fact the only individual member of Congress on whom the Constitution imposes specific duties with regard to the canvass is the Senate President, who is responsible for the reception and opening of the certificates of canvass. More importantly, and contrary to petitioner's assertions, the Rules on Canvassing adequately provides each member of Congress with an opportunity to observe the canvassing and to make known his views on the Report of Joint Committee: Sec. 13. A Joint Committee shall be created composed of eleven (11) members from the Senate to be appointed by the President of the Senate and eleven (11) members from the House of Representatives to be appointed by the Speaker. The Members of each House panel shall elect among themselves their respective Chairman in the Joint Committee. The Joint Committee may sit en banc or, in its discretion, in two (2) divisions of eleven members each composed of a chairman, five (5) members from the Senate and five (5) from the House of Representatives: Provided, That a

Member of Congress who is a candidate for President or Vice-President shall not be eligible for appointment to the Joint Committee. Each division shall be chaired by a Chairman of the Committee. The Joint Committee shall, upon determination of the authenticity and due execution of the certificates of canvass, preliminarily canvass the votes of candidates for the offices of President and Vice-President. The Representative of the province or city whose certificate of canvass is being canvassed shall be an ex-officio member of the Joint Committee, without voting rights, for the duration of the canvassing of the aforesaid certificate of canvass. SEC. 19. The Joint Committee, whether en banc or in divisions, shall decide any question involving the certificate of canvass by a majority vote of its Members, each House panel voting separately. Any such decision shall be subject to approval by the joint session, the Senate and the House of Representatives voting separately. In case the two Houses disagree, the decision of the President of the Senate, in consultation with the Speaker of the House of Representatives, shall prevail. xxx xxx xxx SEC. 22. The Joint Committee en banc shall tabulate the votes and, for this purpose, may avail of the services of an independent accounting/auditing firm to assist in the tabulation and canvass of votes. After the certificates of canvass and the statement of votes have been tabulated, any Member of Congress may request in writing for copies thereof from the Secretariat prior to the consideration of any interim or final report to the joint session. SEC. 23. The Joint Committee, en banc or in divisions, shall meet eight (8) hours a day from Monday to Friday until all the certificates of canvass referred to it by the joint public session shall have been canvassed. The final report shall be submitted by the Joint Committee en banc to the joint public session for its approval, each House voting separately. CAacTH

SEC. 24. Notwithstanding the fact that not all certificates of canvass have been received, the Joint Committee may submit to the joint public session its final report with the recommendation to terminate the canvass if the total number of registered voters corresponding to the province, city or district covered by the certificates of canvass not yet transmitted would no longer affect the results of the election. Congress in joint public session, voting separately, shall immediately act on the final report. The Joint Committee may, in its discretion, submit interim report to the joint public session whenever there is a need for guidance or direction from Congress: Provided, That objections raised and rulings made thereon shall no longer be included in the final report.

SEC. 25. At least a majority of the Members from each House panel shall sign the final report of the Joint Committee. Every Member shall be provided with a copy of the final report and shall be given twentyfour (24) hours within which to submit his concurring or dissenting opinion. SEC. 26. During the joint public session, the Member designated by the Joint Committee shall speak for not more than one hour on the report and the accompanying resolution approving the report of the Joint Committee, declaring the results of the canvass and proclaiming the President-elect and Vice-President-elect. The Member designated by those against the report shall also speak for not more than one hour. Subsequent speakers for or against the resolution shall be allowed to speak for not more than three hours: Provided, That one (1) speaker for each candidate shall be given the opportunity to speak for not more than twenty minutes.

RULE X PROCLAMATION SEC. 27. Upon termination of the canvass and approval of the Joint Committee report and the accompanying resolution by majority of all the Members of both Houses voting separately in the joint public session, Congress through the President of the Senate and the Speaker of the House of Representatives shall forthwith proclaim the President-elect and the Vice-Presidentelect. (Emphasis supplied) IacHAE

The Rules on Canvassing likewise provides for mechanisms by which the candidates, through their representatives, may participate in the canvassing process: Section 8. Each candidate shall be entitled to two watchers from a team of five watchers who shall have access to an unimpeded view of the entire canvassing proceedings. They shall register their attendance before the Joint Committee and shall keep vigilant watch over the ballot boxes from the time the same are received in the House of Representatives until the canvassing proceedings are terminated. Each candidate shall likewise be entitled to attorneys who shall serve during the entire canvassing proceedings. The attorneys shall register their appearances before the Joint Committee: Provided, That only one attorney for every candidate may argue and question any certificate of canvassconsidered by the Joint Committee for not more than five (5) minutes which may be extended for a similar period by the chairman when the need arises without prejudice to the right to submit a written memorandum not later than twenty-four (24) hours from the time the objection was raised. No extension of the period to submit shall be allowed, and if no memorandum is submitted with the said period, the right shall be considered waived. (Emphasis and underscoring supplied)

as well as remedies in case patent irregularities and discrepancies are discovered in the certificates of canvass: AaDSEC

Section 17. When it appears that any certificate of canvass or supporting statement of votes by precinct bears erasures or alterations which may cast doubt as to the veracity of the number of votes stated therein and may affect the result of the election, upon request of the Presidential or Vice-Presidential candidate concerned or his party, Congress shall, for the sole purpose of verifying the actual number of votes cast for President and Vice-President, count the votes as they appear in the copies of the election returns submitted to it. (Emphasis and underscoring supplied).

The procedure adopted by Congress is not without rational basis. The procedure embodied in the questioned Rules on Canvassing is evidently intended to accomplish both a speedy and accurate canvass. On the other hand, while there appears to be little to be gained in the way of accuracy if the authentication and canvass of the certificates were undertaken by both Houses of Congress as a whole, much time may be lost by such a procedure. It may not be amiss to point out that the timeliness of the canvassing and the proclamation of the President-elect and Vice-President-elect is also of concern. It is a general policy of our elections laws that controversies arising before the proclamation of winning candidates should be dealt with in a summary manner so that the canvass and proclamation be delayed as little as possible. Hence, questions involving the appreciation of votes and the conduct of the election campaign and the voting itself, which require more deliberate and necessarily longer consideration, are properly the subject matter of election protests before the appropriate adjudicatory body. 30 In the recent case of Sandoval v. Commission on Elections, 31 this Court had occasion to state: On the first issue, we uphold the jurisdiction of the COMELEC over the petitions filed by private respondent. As a general rule, candidates and registered political parties involved in an election are allowed to file preproclamation cases before the COMELEC. Pre-proclamation cases refer to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of election returns. The COMELEC has exclusive jurisdiction over all pre-proclamation controversies. As an exception, however, to the general rule, Section 15 of Republic Act (RA) 7166 prohibits candidates in the presidential, vice-presidential, senatorial and congressional elections from filing pre-proclamation cases. It states: AacSTE

"SECTION 15. Pre-proclamation Cases Not Allowed in Elections for President, Vice-President, senator, and Members of the House of Representatives. — For purposes of the elections for President, Vice-

President, Senator and Member of the House of Representatives, no pre-proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or the certificates of canvass, as the case may be. However, this does not preclude the authority of the appropriate canvassing body motu propio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election returns before it." The prohibition aims to avoid delay in the proclamation of the winner in the election, which delay might result in a vacuum in these sensitive posts. . . . 32 (Emphasis supplied)

Verily, the will of the people is no less frustrated by undue delays in the canvass and proclamation of the winning candidates as by other forms of electoral fraud. Finally, it may be observed that, because there can only be one winner, elections naturally provoke intense competition among the candidates vying for elective office. And in a close race for the highest executive position, fierce partisan political activity is but to be expected. But once the electoral process has moved beyond election day itself and all that is left to be done is to ascertain the will of the people as expressed through the ballot, it is to be hoped that the members of both Houses of Congress, politicians though they may be, will remember the words of Manuel Luis Quezon, first President of the Commonwealth of the Philippines, and realize that loyalty to their party ends where loyalty to their country begins. WHEREFORE, I vote to DISMISS the Petition. CALLEJO, SR., J., concurring: I concur with the encompassing separate opinion of my esteemed colleague, Mr. Justice Reynato S. Puno. I am convinced that Congress, when it acts as the National Board of Canvassers in the presidential and vice-presidential elections conformably with Section 4, Article VII of the Constitution, does not merely perform a ministerial function, but exercises quasi-judicial powers when it determines the authenticity and due execution of the certificates of canvass. In fact, this is one of the substantial changes introduced in the 1987 Constitution. In his sponsorship speech, Commissioner Lorenzo M. Sumulong, Chairman of the Committee of the 1986 Constitutional Commission which drafted the Article on the Executive Department, explained: The first constitutional change that I will mention is the canvassing of votes for President and Vice-President. In the 1973 Constitution, the provision on canvassing of votes for President and Vice-President is as follows: The returns of every election for President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Speaker of the Batasang Pambansa, who shall, not later than thirty days after the day of the election, and in the presence of the Batasang

Pambansa, open all the certificates, and the votes shall then be counted. It will be remembered that many of the certificates of canvass received from each province and city by the Batasang Pambasa were objected to by the supporters of Aquino and Laurel. But based on this provision of the 1973 Constitution, after the certificates of canvass had been opened, the Speaker immediately announced the results of the canvass and proclaimed President Marcos and Mr. Tolentino as elected President and Vice-President, respectively. aSADIC

In the Article on the Executive that is submitted for consideration, it is now provided that after the certificates of canvass had been opened, the counting and canvassing of votes for the President and Vice-President shall not immediately be made because, first, there should be a determination of the authenticity and due execution of the certificates of canvass before the votes may be canvassed. That appears in Section 4 of the Article. . . . 1

The discussion between Messrs. Regalado E. Maambong and Jose N. Nolledo, both members of the 1986 Constitutional Commission, on this point is, likewise, particularly instructive: MR. NOLLEDO: I am referring to the use of the words "upon determination of the authenticity and due execution thereof" on lines 7 and 8, page 2, referring to the certificates of canvass of the President and VicePresident. Am I right if I say that because of the use of these words, the duty of the legislature to canvass is no longer ministerial? MR. MAAMBONG: Madam President, the word "ministerial" has always been interpreted by the Supreme Court as applicable to the canvass made by the National Assembly, and the reason why we did not put the word "ministerial" in the Article is, it has been understood in Roxas v. Lopez and in other cases. When we used the words "authenticity" and "genuineness," the question refers to the problem of whether or not the ministerial function is already non-ministerial. The answer is, it is still ministerial but when we say "authenticity and due execution," what it really means is that the National Assembly will look at the certificates of canvass and find out from the face of the document whether there are flaws in the execution and authenticity of the document. That is what it means. HDTSCc

MR. NOLLEDO: Madam President, in the event that the legislature finds out that there are serious defects in the certificates of canvass — as when the seals are broken, there are a lot of erasures and then many of them are unsigned and, therefore, authenticity appears to be questionable —

what will happen? MR. MAAMBONG: The answer to that is in the phrase "in the manner provided by law." The Committee had to insert the phrase "in the manner provided by law" so that the legislature itself will find out and will make it very specific as to what flaws or deficiencies in the certificates of canvass can be taken cognizance of by the canvassing board of tellers, because as of now, the guiding regulations that govern the National Assembly, as I mentioned in the Committee, are: the rules and regulations of the COMELEC, the Omnibus Election Code, the jurisprudence from the decisions of the Supreme Court. All these things taken together, the legislature is given a notice by using the phrase "in the manner provided by law," so that it will make a determination now of what are the points which the board of tellers can take cognizance of, because it is not very clear right now under the laws and regulations, and as a matter of fact, that was one of the controversies which arose during the canvassing of the votes of President Aquino and former President Marcos in the last Batasan. 2

A purely ministerial act or duty is one in which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment, upon the propriety of the act done. 3 As my esteemed colleague, Justice Jose C. Vitug, in his separate opinion in Romualdez-Marcos v. Commission on Elections, 4 succinctly put it, "a ministerial duty is an obligation the performance of which, being adequately defined, does not allow the use of further judgment or discretion." Congress, as the sole body tasked to canvass the votes for the President and Vice-President, is mandated to make a "determination of the authenticity and due execution" of the certificates of canvass before it proceeds to canvass the same. As such, it cannot be said to perform a purely ministerial function but it exercises a quasi-judicial function as well. It has been said that where a power rests in judgment or discretion, so that it is of judicial nature or character, but does not involve the exercise of function of a judge, or is conferred upon an officer other than a judicial officer, it is deemed quasijudicial. 5 In this sense, the function of Congress, as the National Board of Canvassers in the presidential and vice-presidential elections, is akin to that of the municipal, provincial or city boards of canvassers. These boards of canvassers are said to exercise quasi-judicial powers as they are tasked to determine the due execution and authenticity of the certificates of canvass or the election returns as the case may be before them: . . . We do not discern in the law a purpose to throw the burden on courts where it is patent — as in the case here — that tampering of the returns occurred after they have left the hands of the election inspectors, just to pave the way for the proclamation of a candidate in whose favor falsification was resorted to. To tie up the hands of the board of canvassers in the situation here presented is to wink at a brazen form of wrong-doing to

subvert the people's will, and in mockery crown the loser with victory. Correctly then, canvassers are given quasi-judicial powers to determine whether the return is genuine and to disregard one which is obviously a forgery. Along parallel lines, this Court, in Nacionalista Party v. Commission on Elections . . ., declared that the canvassing board could accept as correct those returns transmitted to it "which are in due form;" that they must "be satisfied of the genuineness of the returns — namely, that the papers presented to them are not forged and spurious;" and that "where the returns are obviously manufactured, . . . the board will not be compelled to canvass them. 6

ACCORDINGLY, I vote to DISMISS the petition. TINGA, J.: The tradition of judicial review is as old as the essences of the democratic system of government we practice today. 1 This Court has consistently affirmed the doctrine, dating as far back as the Commonwealth era. 2 Judicial review arises from the inherent judicial power, and has traditionally relied on no statutory grant other than the source law that created the judicial system. 3 DTaAHS

At the same time, the notion of separation of powers is a linchpin of our constitutional order. Coordinate political departments are accorded their respective spheres over which they exercise discretion to manage. It is a rule that promotes efficient governance, and, perhaps more importantly, institutionalizes the system of checks and balances within the government. These two doctrines are hardly antithetical. Judicial review ensures that the other branches of government obey the Constitution. 4 It also shields one branch from undue interference by another. On the other hand, the Court should restrain itself from unduly interfering in the affairs of co-equal branches of government. Indeed, the unwarranted exercise of the judicial power would be judicial activism at its most egregious. Cognizant that unwarranted judicial review may breach both the traditional deference accorded by the judiciary to the coordinate political departments and the presumption of validity accorded to their actions, jurisprudence has fostered the evolution of the "political question" doctrine as a form of autolimitation of the judicial power. The traditional stance of the Court has been to desist from deciding issues that may properly be classified as political questions. A political question refers to a question of policy or to issues 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. 5 In our country, the "political question" doctrine has undergone some rethinking, particularly in light of the misuse of the doctrine during the martial law era. The incorporation of Article VIII, Section 1 6 in the 1987 Constitution has especially affected this Court's thinking on the political question doctrine. 7

Yet while nobody pretends that Section 1, Article VIII invented judicial review in the Philippines, I likewise submit that the same article did not render the "political question" inconsequential. Section 1, Article VIII has crystallized into a constitutional command decades of jurisprudence affirming this Court's exercise of judicial review, as balanced by the political question doctrine. Neither have the contours of judicial review been altered by the new provision. Its effect is simply this: with judicial duty cast not only as a power but also as a duty, no longer can this Court refuse to correct a coordinate branch's act of grave abuse of discretion simply on the premise that it constitutes a political question, as it had done in the past. 8 The petition is unable to show any grave abuse of discretion on the part of the Congress in promulgating the canvassing rules. Shorn of this essential element, the Court is left with nothing to review but an act of a coordinate branch of government which is textually committed to Congress by Article VII, Section 4 of the Constitution. 9 This is a political question, and the Court should not extend due course to the petition. This leads to an important point which the Court should not overlook. The mere incantation by a petitioner of "grave abuse of discretion" is not a passport to this Court's jurisdiction. If upon initial review, it appears that no grave abuse of discretion attends the questioned political act, the Court should say so, and say nothing more. Moreover, an express rejection of jurisdiction over political questions bereft of grave abuse of discretion serves not only as an act of courtesy to the co-equal branch, but also as an act of deference to the Constitution. While the Court should not hesitate to compel an errant branch into obeying the Constitution, it should also acknowledge when the other branches are obeying the Constitution, and that the Court itself is observing its own constitutional mandate by reusing to interfere. HcTSDa

The present petition serves as a perfect opportunity to desist and reject. The basic issue proposed by petitioner is whether the rules of canvass ("Rules") promulgated relative to the 10 May 2004 elections are constitutional. 10 In support of his thesis that the Rules are unconstitutional, petitioner makes four arguments; that the Rules are an unconstitutional delegation of legislative power to a joint committee of Congress; that the Rules amend Section 4, Article VII of the Constitution; that the Rules deprive petitioner of his rights and prerogatives as a member of congress; and by enforcement of the Rules, Congress neglects performing its constitutionally enjoined duty. 11 On the arguments raised by the petitioner, the result is clear-cut. The petition is palpably without merit.

First, the Rules does not constitute an unconstitutional delegation of legislative power. The power to canvass votes is not inherently legislative, as it does not pertain to the enactment of legislation. 12 By traditional concept, the non-delegation rule means that

Congress may not constitutionally delegate its legislative power to another branch of government. 13 At the same time, pursuing this point is ultimately needless, as despite petitioner's claim, there really is no delegation made by Congress. A clear examination of the Rules reveals that therein, Congress retains the right to open the certificates of canvass and canvass the votes. cACDaH

Second, the Rules does not amend Article VII, Section 4 of the Constitution by providing for an unconstitutional method for canvassing the votes. Congress is expressly granted the power to promulgate rules for the canvassing of the certificates. 14 By virtue of this express right, the Rules were promulgated by Congress. The Joint Committee does not have any authority or power except that granted to it under the questioned Rules. Even then, its power is limited only to functioning as a preparatory or preliminary body to speed up and make more efficient the canvassing of the votes. 15 The Joint Committee's acts and determinations do not have any force and effect unless approved by the whole of Congress. 16 The canvassing of the votes under the questioned Rules is still the act of Congress as one whole body. The findings of the Joint Committee do not bind Congress unless approved in a joint public session. 17 Accordingly, Congress may choose to overrule the findings and determinations made by the Joint Committee. The assailed Rules, and the procedure laid therein, are but an offshoot of legislative practice. 18 Congress, as a matter of legislative practice, functions by way of delegation towards committees. The formation of congressional committees arises from plenary power possessed by the legislative body for all purposes of civil government. 19 The entire House or Senate is too large to conduct basic functions, such as to conduct investigations in aid of legislation, and thus must always use a committee. 20 A bill that is filed in Congress is always referred for preliminary consideration to the particular congressional committee which would have specialized competence to examine the merits of the proposed law. Yet, while the final report of the congressional committee as to the proposed bill may have persuasive effect on the body as a whole, it is by no means binding. In fact, Congress as a whole has the power to revive a bill that has been tabled due to unfavorable action by the congressional committee. 21 HDCTAc

The assailed Rules is premised on realistic considerations that also govern the daily legislative grind: that owing to the sheer volume of work and the number of legislators, it would be counter-productive to have every and any preliminary matter to be voted upon by every member of the House or Senate. The procedure outlined in the questioned Rules does not in any way contravene Sec. 4, Article VII of the Constitution. In fact, it strictly adheres to the provision. Under the Rules, the Senate President opens the certificates of canvass in the presence of the Senate and the House of Representatives in joint public session. 22 Upon approval by Congress in joint public session of the Joint Committee report, Congress

as one whole body is deemed to have determined the authenticity and due execution of the certificates and canvassed the certificate of votes.

Third, the questionedRules does not emasculate the representatives who are not members of the Joint Committee since the Rules specifically provides avenues for each member of Congress to voice out any dissent to the opinions and conclusions of the Joint Committee. Petitioner will be entitled to avail of all his legislative privileges and exert his persuasive powers during that time certain when the Congress as a whole would deliberate on and approve the Joint Committee's resolution of any question involving a certificate of canvass, 23 the final report of the Joint Committee, 24 and the resolution proclaiming the President and VicePresident-elect. 25 In light of my earlier discussion, petitioner's fourth argument hardly bears discussion. Contrary to his claim, Congress did not abdicate from its constitutional duties to canvass the presidential and vice-presidential elections. The Joint Committee canvass is merely a preliminary canvass, with the final canvass results subject to approval by the entire Congress. These are the only issues for resolution before the Court, and they can be concisely dispensed with. Given the scope and limitations of these issues presented before us, it would be improvident of this Court to discuss issues which are not raised, or to engage in a "preemptive strike" based on speculative musings that in its wisdom, Congress will be misguided by erroneous principles in the future conduct of its canvass. By doing so, this Court will act in excess of its jurisdiction, by ruling upon matters which have not been duly raised before us. The Court does not issue advisory opinions. 26 This holds true, especially in the face of temptation to dictate to a co-equal branch how it should act, despite the absence of any justiciable question that would warrant such intrusion. In fine, it is not the business of the Court to dictate on Congress as to how it should perform its task as the national canvassing board, as its mandate was derived from no less than the fundamental law. Should it fail to fulfill its mandate, it is accountable not to this Court, but to the sovereign people. Of course, there are laws which governs the conduct of the national canvass. Republic Act No. 7166, passed in 1991, is one such law. Section 15 thereof provides: Sec. 15. Pre-proclamation Cases Not Allowed in Elections for President, Vice-President, Senator, and Members of the House of Representatives. — For purposes of the elections for President, Vice-President, Senator and Member of the House of Representatives, no pre-proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or the certificates of canvass, as the case may be. However, this does not preclude the authority of the appropriate canvassing body motu propio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election returns before it. SIaHDA

It is clear that Section 15 of Republic Act No. 7166 prohibits pre-proclamation cases in elections for President and Vice-President. This would extend to questions pertaining to the appreciation of election returns or certificates of canvass. The only exception would be to correct manifest errors in the certificate of canvass. The Court in Chavez v. COMELEC 27 defined "manifest errors" as those that must appear on the face of the certificates of canvass or election returns sought to be corrected, and an objection thereto must have been made before the board of canvassers and specifically noted in the minutes of their respective proceedings. For the purpose of the presidential/vice-presidential canvass, the Court's definition in Chavez must be qualified, since Section 4, Article VII of the Constitution mandates that Congress inspect only the certificates of canvass. Verily, I submit that such manifest errors which may be corrected only pertain to the certificates of canvass in the case of presidential and vice-presidential elections. The Court, through Justice Puno, explained the reason for Section 15 in Sandoval v. COMELEC: The prohibition aims to avoid delay in the proclamation of the winner in the election, which delay might result in a vacuum in these sensitive posts. The law, nonetheless, provides an exception to the exception. The second sentence of Section 15 allows the filing of petitions for correction of manifest errors in the certificate of canvass or election returns even in elections for president, vice-president and members of the House of Representatives for the simple reason that the correction of manifest error will not prolong the process of canvassing nor delay the proclamation of the winner in the election. This rule is consistent with and complements the authority of the COMELEC under the Constitution to, "enforce and administer all laws and regulations relative to the conduct of an, election, plebiscite, initiative, referendum and recall" and its power to "decide, except those involving the right to vote, all questions affecting elections. 28 (emphasis supplied)

The limitations imposed on the national board of canvassers are thus clear. The question which must be resolved by the canvassers is whether there is prima facie basis for the proclamation of the president and the vicepresident. Matters which may be inquired into through a pre-proclamation protest, as laid down in Section 243 of the Omnibus Election Code, are not justiciable by Congress acting as the Board of Canvassers. 29 Populist arguments aside, there are fundamental policy considerations why Congress is proscribed by law from entertaining pre-proclamation controversies, or inquiring into the intrinsic validity of the certificates of canvass. First, there is the abhorrence of vacuum in the "sensitive posts" 30 of President and Vice-President. The Constitution provides that the term of office of the president shall begin on the thirtieth day of June. 31 While the Constitution provides for contingencies should no president be proclaimed before that date, all efforts should be exerted to avoid these "emergency provisions" from coming into play, as they would necessarily affect political stability. In fact, the June 30th "deadline" should be appreciated by Congress as an imperative that should guide the body in the formulation of the

rules for canvassing. There is also the fact that the Supreme Court is mandated by the Constitution as the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President. 32 As the eminent constitutionalist Justice Vicente V. Mendoza has explained: Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice President, Senators and members of the House of Representatives. The purpose is to preserve the prerogatives of the House of Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the constitution of the election, returns and qualifications of members of Congress of the President and Vice President, as the case may be. (citations omitted) 33 IcESaA

It is clear that such questions in the province of the Supreme Court to decide in its capacity as the sole judge of election contests for the presidency and vice-presidency are distinct from those within the mandate of Congress as the canvassing body. They include the appreciation of election returns and questions pertaining to the intrinsic validity of the certificates of canvass. The power to be the "judge of contests relating to the election, returns, and qualifications" of any public officer is essentially judicial, and as such, under the principle of separation of powers, it belongs exclusively to the judicial department, except only insofar as the Constitution provides otherwise. 34 I VOTE to DISMISS the petition. Footnotes DAVIDE, JR., C.J.: 1.

Petition, p. 2 [emphasis supplied].

2.

103 Phil. 1051, 1068 [1957].

3.

Javellana v. Executive Secretary, L-35154, 31 March 1973, 50 SCRA 30, 84, citing In re McConaughy, 119, N.W. 408, 417.

4.

Petition, p. 12, citing 2 Records of the Constitutional Commission 419 [hereinafter RECORDS].

5.

Black's Law Dictionary, 5th ed., 1979.

6.

People v. Vera, 65 Phil. 56, 112-113 [1937].

7.

Sec. 1., Article II, 1987 Constitution.

8.

U.S. v. Hampton, 276 US 394 [1928]. See also Echegaray v. Secretary of Justice, G.R. No. 13260, 12 October 1998, 297 SCRA 754; People v. Rosenthal, 68 Phil. 328 [1939].

9.

Throughout the Constitution are examples of such encroachment, such as in the House of Representatives, Senate, or Presidential Electoral Tribunals, with members from their respective Houses as well as from the Supreme Court, or else when the President exercises the veto power regarding legislation.

10.

Each House may determine the rules of its proceedings , punish its Members for disorderly behavior, and with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed shall not exceed sixty days. [Emphasis supplied]

11.

Discussing the authority of Congress to provide its rules of proceedings, Justice Vicente V. Mendoza in Arroyo v. De Venecia, (G.R. No. 127255, 14 August 1997, 277 SCRA 268), cites Crawford v. Gilchrist, 13 64 Fla. 41; 59 So. 963, 968 [1912], where it was held: "The provision that each House shall determine the rules of its proceedings does not restrict the power given to a mere formulation of standing rules, or to the proceedings of the body in ordinary legislative matters; but in the absence of constitutional restraints, and when exercised by a majority of a constitutional quorum, such authority extends to a determination of the propriety and effect of any action as it is taken by the body as it proceeds in the exercise of any power, in the transaction of any business, or in the performance of any duty conferred upon it by the Constitution." [Emphasis supplied]. See also United States v. Ballin, Joseph & Co., 79 Conn. 141, 64 Atl. 5, 9-10 [1906]: "The Constitution empowers each house to determine its rules of proceedings. . . .The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal."

12.

RECORDS at 433.

13.

2 RECORDS at 391.

14.

Republic Act No. 7166, An Act Providing for Synchronized National and Local Elections and For Electoral Reforms, Authorizing Appropriations Therefor, and Other Purposes, 26 November 1991.

15.

See Tolentino v. Secretary of Finance, G.R. No. 115455, 25 August 1995, 235 SCRA, 666-672 where it was held that amendments to bills proposed by conference committees held in executive session that were not found in the original bills approved by the House of Representatives or the Senate, were deemed valid because they were "[o]ften the only way to reach agreement an conflicting provisions. . . with only the conferees present. Otherwise, no compromise is likely to be made." Regardless, such amendments were deemed valid as they could only be passed with the approval of Congress.

16.

Osmeña v. Pendatun, 109 Phil. 863, 871, citing 67 Corpus Juris Secundum 870.

17.

Citing Sanson v. Barrios , 63 Phil. 198.

18.

2 RECORDS at 433.

19.

124 Phil. 168.

20. 21.

Id. at p. 182. Record and Journal of the Joint Session of Congress as National Board of Canvassers, Tenth Congress of the Philippines.

22.

Id., 1.

23.

Id., 1 & 2.

PUNO, J.: 1.

A delegated power cannot be delegated.

2.

103 Phil. 1051 (1957).

3.

Integrated Bar of the Philippines v. Zamora, 338 SCRA 80 (2000).

4.

Gonzales v. COMELEC, 129 Phil. 7 (1967).

5.

281 SCRA 330, 348 (1997).

6.

277 SCRA 268 (1997).

7.

144 U.S. 5, 36 L ed., 324-325.

8.

G.R. No. 160261. See Concurring and Dissenting Opinion, J. Puno.

9.

Ibid.

10. 11.

Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001. The New Webster's Dictionary of the English Language, 1995 International Edition, p. 790.

12.

Section 14.

13.

40 Phil. 246, 251 (1919).

14.

Aquino v. COMELEC, 22 SCRA 288, 293 (1968).

QUISUMBING, J.: *

Annex "A" to the petition.

*

Arguments, p. 10 of petition.

*

A member of the Joint Committee, Hon. Ma. Blanca Kim Bernardo-Lokin, also filed a motion for leave to file attached Comment, which we granted and noted on 8 June 2004.

**

Comment, House of Representatives, p. 12.

***

Comment, Senate of the Philippines, p. 40.

* **

See Baker v. Carr, 369 U.S. 186. See also Estrada v. Desierto, 353 SCRA 452.

*

See Marbury v. Madison, 5 U.S. 137 (1803), and Gore v. Bush, 531 U.S. 98 (2000).

*

Petition, p. 13.

*

Note from the Publisher: Missing footnote text.

*

Petition, p. 22.

**

Citing Congressional Records for these years.

*

See Records, Constitutional Com., pp. 391, 401.

** *** *

Comment of the OSG, p. 15. Comment, House of Representatives, p. 10. Comment of OSG, p. 15.

CARPIO MORALES, J., concurring: 1.

Petition at 2-3.

2.

Id. at 10.

3.

CONST. art. VIII, sec. 1.

4.

Angara v. Electoral Commission, 63 Phil. 139, 156-159 (1936).

5.

Vide: In re Prautch, 1 Phil. 132 (1902); U.S. v. Ang Tang Ho, 43 Phil. 1 (1922); Bondoc v. Pineda, 201 SCRA 792 (1991).

6.

Vide: Arroyo v. De Venecia, 277 SCRA 268 (1997), Santiago v. Guingona, Jr., 298 SCRA 756 (1998).

7.

Petition at 18.

8.

Id. at 7-9.

9.

17 SCRA 756 (1966).

10.

Id. at 769.

11.

Petition at 15-16.

12.

Mateo v. Court of Appeals , 196 SCRA 280, 284 (1991) citing Symaco v. Aquino, 106 Phil. 1130 (1960).

13.

21 SCRA 1462, 1466 (1967).

14.

Id. at 1466-1467.

15.

22 SCRA 1317 (1968).

16.

Id. at 1318-1320.

17.

180 SCRA 509 (1989).

18.

Id. at 514-515.

19.

II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES 390-391 (1986).

20.

Black's Law Dictionary, 6th ed. at 426.

21.

Ibid.

22.

Petition at 14-15.

23.

Salas v. Jarencio, 46 SCRA 734 (1970); Morfe v. Mutuc, 22 SCRA 424 (1968); Peralta v. Commission on Elections , 82 SCRA 30 (1978).

24.

David v. Commission on Elections , 271 SCRA 90 (1997); vide: Arroyo v. De Venecia, supra; Santiago v. Guingona, Jr., supra.

25. ARTICLE XI ACCOUNTABILITY OF PUBLIC OFFICERS SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law. (8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. 26.

Unless two or more shall have an equal and highest number of votes. In which case, one of them shall be chosen by the vote of a majority of all the Members of both Houses of Congress, voting separately.

27.

249 SCRA 628 (1995).

28.

Id. at 649-650.

29.

Petition at 21.

30.

Abella v. Larrazabal, supra.

31.

323 SCRA 403 (2000).

32.

Id. at 417-418.

CALLEJO, SR., J., concurring: 1.

II RECORDS OF THE CONSTITUTIONAL COMMISSION 385.

2.

Id. at 390-391.

3.

Mateo v. Court of Appeals , 196 SCRA 280 (1991).

4.

248 SCRA 300 (1995).

5.

Sandoval v. Commission on Elections , 323 SCRA 403 (2000).

6.

Espino v. Zaldivar, 21 SCRA 1204 (1967); Salvacion v. Commission on Elections , 170 SCRA 513 (1989). (Underscoring supplied.)

TINGA, J.: 1.

See e.g., Marbury v. Madison, 1 Cranch 137 L. ed [1803].

2.

Angara v. Electoral Commission, 63 Phil. 139.

3.

"The United States Constitution. . . does not explicitly grant the judicial review power asserted in Marbury." K. Sullivan & G. Gunther, Constitutional Law 13, 14th ed. (2001). See also L. Tribe, American Constitutional Law 207, 3rd ed. (2000). "Although the Constitution is silent as to whether federal courts have [the authority for judicial review], the power has existed ever since Marbury". E. Chemerinsky, Constitutional Law: Principles and Policies 39, 2nd ed.; (2002). U.S. Supreme Court Justice Byron White has been on record in opining that it was the U.S. Constitution, and not Marbury v. Madison that created judicial review in the United States.

4.

"When [judicial] supremacy is invoked, it compels the errant branches of government to obey not the Supreme Court, but the Constitution." Francisco v. House of Representatives , G.R. Nos. 160261, etc., 10 November 2003, J. Tinga, concurring.

5.

Generally, political questions are concerned with issues dependent upon the wisdom, not the legality, of a particular measure Tañada v. Cuenco, 100 Phil. 101 [1957], as cited in Tatad v. Secretary of Finance, 346 Phil. 321. The formulation made in Baker v. Carr by the late American Supreme Court Justice William Brennan as to what constitutes a political question has long gained a foothold both in the United States and in the Philippines. "Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision' already made; or potentiality of embarrassment from multifarious pronouncements by various departments on one question." Baker v. Carr, 369 U.S. 186, 217. (1962)

6.

"Judicial power includes the duty of the courts of justice . . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." See Article VIII, Section 1, Constitution, in relation to Baker v. Carr, supra note 5.

7.

See, e.g., Marcos v. Manglapus , G.R. No. 88211, 15 September 1989, 177 SCRA 668.

8.

See e.g., Javellana v. Executive Secretary, 151-A Phil. 35 (1973).

9.

"The returns of every election for President and Vice-President . . . . shall be transmitted to the Congress . . . and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes." See Section 4, Article VII, Constitution.

10.

Petition, p. 9.

11.

Id. at 10.

12.

The essential of the legislative function is the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct. Occeña v. COMELEC, G.R. No. L-2265, 28 January 1980, citing Yakus v. United States 321 US 414, 88 L. ed. 834.

13.

See K. Sullivan and G. Gunther, Constitutional Law 351, 14th ed. (2001) "The nondelegation doctrine forces a politically accountable Congress to make the policy choices, rather than leave this to unelected administrative officials." E. Chemerinsky, Constitutional Law: Principles and Policies 2nd ed 319 (2002).

14.

"The Congress shall promulgate its rules for the canvassing of the certificates." Par. 6, Sec. 4, Article VII, 1987 Constitution.

15.

In fact, the 2nd paragraph of Section 13 of the Rules quite baldly states: "The Joint Committee shall, upon determination of the authenticity and due execution of the certificates of canvass, preliminarily canvass the votes of candidates for the offices of President and Vice-President.

16.

See Secs. 19, 23 and 24, Congressional Rules of Canvass.

17.

See Section 24, Congressional Rules of Canvass.

18.

Congress has the constitutional power to adopt rules for its proceedings, and by legislative practice it is conceded the power to promulgate such orders as may be necessary to maintain its prestige and to preserve its dignity. See Vera v. Avelino, 77 Phil. 192, 212. (1946)

19.

See Fernando and Fernando, Jr., Separation of Powers: The Three Departments of the Philippine Government 205 (1985).

20.

See E. Chemerinsky, Constitutional Law: Principles and Policies 2nd ed 303 (2002).

21.

See Fernando and Fernando, Jr., Separation of Powers: The Three Departments of the Philippine Government 205 (1985).

22.

See Section 9, Congressional Rules of Canvass.

23.

See Section 19, Congressional Rules of Canvass.

24.

See Section 23 and 24, Congressional Rules of Canvass.

25.

See Section 27, Congressional Rules of Canvass.

26.

Guingona v. Court of Appeals , G.R. No. 125532, 10 July 1998, 292 SCRA 402, 413; Tolentino v. Secretary of Finance, G.R. Nos. 115455, 25 August 1994, 235 SCRA 630, 686; De la Llana v. Alba, G.R. No. L-57883, 12 March 1982, 112 SCRA 294, 385, Plana, J., concurring and dissenting.

27.

Chavez v. COMELEC, G.R. No. 105323, 3 July 1992, 211 SCRA 315, 322.

28.

380 Phil. 375, 389-390 (2000).

29.

Section 243 of the Omnibus Election Code states: 243. Issues that may be raised in pre-proclamation controversy. The following shall be proper issues that may be raised in a preproclamation controversy: (a) Illegal composition or proceedings of the board of canvassers; (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235, and 236 of this Code; (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates.

30.

Sandoval v. COMELEC, supra note 28.

31.

Article VII, Section 1, par. 1, Constitution.

32.

See Section 4, Article VII, Constitution.

33. 34.

Romualdez-Marcos v. COMELEC, G.R. No. 119976, 248 SCRA 300, 397; J. Mendoza, concurring. Lopez v. Roxas , 124 Phil. 168, 177 (1965).