[ G.R. No. L-3452. December 07, 1949 ] 85 Phil. 101
[ G.R. No. L-3452. December 07, 1949 ]
THE NACIONALISTA PARTY, PETITIONER, VS. FELIX ANGELO BAUTISTA, SOLICITOR GENERAL OF THE PHILIPPINES, RESPONDENT. D E C I S I O N
PADILLA, J.:
The prayer of the petition filed in this case reads, as follows:
Wherefore, petitioner respectfully prays that after due hearing a writ of prohibition issue commanding the respondent Solicitor General to desist forever from acting as acting member of the Commission on Elections under the designation rendered to him by President Quirino on November 9, 1949 unless he is legally appointed as regular member of the said Commission on Elections * * *.
It is averred, in support of the prayer, that on 9 November 1949, while the respondent held, as he still holds, the office of Solicitor General of the Philippines, the President designated him as acting member of the Commission on Elections, and on that same date the respondent took the oath of office and forthwith proceeded to assume and perform the duties of the office; that at the time of the respondent’s designation he had not resigned from the office of Solicitor General of the Philippines nor does he intend to do so but continues to exercise all the powers and duties of the last mentioned office.
It is contended that such designation is invalid, illegal, and unconstitutional, because there was on 9 November 1949 no vacancy in the Commission on Elections, for the acceptance, approval, or granting of the application for retirement filed by Commissioner Francisco Enage on such date constitutes or amounts to abuse of discretion and was done in bad faith by the President and therefore null and void; and because Commissioner Enage is entitled to leave and until after the expiration of such leave he does not cease to be a member of the Commission on Elections. The contention that the granting of the retirement application of Commissioner Enage constitutes an abuse of discretion and was made in bad faith is based upon the allegation and claim that the Commissioner “had voted to suspend the elections in Negros Occidental and Lanao and the Liberal Party fears he might vote to annul said elections.”
It is claimed, in the alternative, that even if there was on that date a vacancy in the Commission on Elections, still the respondent’s designation to act as such member of the Commission, in addition to his duties, as Solicitor General, pending the appointment of a permanent member, is invalid, illegal, and unconstitutional, because membership in the Commission is a permanent constitutional office with a fixed tenure, and, therefore, no designation of a person or officer in an acting capacity could and can be made; because a member of the Commission cannot at the same time hold any other office; and because the respondent as Solicitor General belongs to the executive department and cannot assume the powers and duties of a member in the Commission.
There are other averments that do not go to the root of the main question raised in this case, such as the subordinate position of the office of the respondent to that of the Secretary of Justice who as a member of the Cabinet campaigned for the election of the present incumbent to the presidency of the Republic; the defense of the President made by the respondent in the impeachment proceedings in Congress and in the emergency powers cases in this Court; the alleged advice given the President by his advisers, among whom was the respondent, not to suspend the elections in Occidental Negros and Lanao; the alleged setting aside or revocation of the Commission’s resolutions on the suspension of elections in Occidental Negros and Lanao by the respondent and Chairman Vera, and, for these reasons, it is claimed that impartiality of judgment in masters concerning the last elections cannot be expected of the respondent, thereby impairing the independence of the Commission on Elections.
The answer of the respondent admits his designation as acting member of the Commission on Elections in a temporary capacity pending the appointment of a permanent one and retention of his office as Solicitor General, and denies the other averments, conclusions, claims and contentions set out in the petition.
The respondent contends that his designation is lawful and valid, not only because the power to appoint vested in the President includes the power to designate, but also because it is expressly so provided in Commonwealth Act No. 588; and that the offices held by him, one permanent and the other temporary, are not incompatible.
The claim that the office held by Commissioner Francisco Enage is not vacant for, the reasons given by the petitioner is without foundation in law and in fact, because Francisco Enage as member of the Commission on Elections applied for retirement in 1941 and reiterated his application in 1946 and 1948 and the President of the Philippines granted it on 9 November 1949, and because even if he were entitled to leave he did not apply for it. So that upon acceptance of his application for retirement without applying for leave, even if he were entitled thereto, Francisco Enage vacated his office in the Commission on Elections. Whether the granting of the application for retirement constitutes an abuse of discretion or was done in bad faith by the President, as alleged and claimed by the petitioner, is a subject matter into which we are not at liberty to inquire because of the well known principle of separation of powers. Besides, the President of the Philippines is not a party to these proceedings. Nevertheless, as petitioner predicates its conclusion of “bad faith” and “abuse of discretion” upon the allegation that the Commission “had voted to suspend the elections in Negros Occidental and Lanao and the Liberal Party fears he might vote to annul said elections,” it may be stated to set matters aright that there is no legal basis for this allegation, because the Commission on Elections cannot vote to suspend an election but may vote to recommend or may recommend only to the President the suspension of an election “when for any serious cause the holding of an election should become impossible in any political division or subdivision,” pursuant to section 8 of Republic Act No. 180, and because the Commission on Elections cannot “vote to annul said elections” for it has no power to annul an election. What at most it may do is to express its views in the report to be submitted to the President and the Congress on the manner in which such election was conducted, pursuant to section 4, Article X, of the Constitution.
As there was a vacancy in the membership of the Commission on Elections, the next point to determine is whether the designation of the respondent as Acting Member of the Commission on Elections, in addition to his duties as Solicitor General, pending the appointment of a permanent member to fill the vacancy caused by the retirement of Commissioner Francisco Enage, is unlawful and unconstitutional.
Under the Constitution, the Commission on Elections is an independent body or institution (Article X of the Constitution), just as the General Auditing Office is an independent office (Article XI of the Constitution). Whatever may be the nature of the functions of the Commission on Elections, the fact is that the framers of the Constitution wanted it to be independent from the other departments of the Government. The membership of the Commission is for a fixed period of nine years, except as to the first members appointed who were to hold office for nine, six and three years. With these periods, it was the intention to have one position vacant every three years, so that no President can appoint more than one Commissioner, thereby preserving and safeguarding the independence and impartiality of the Commission. But despite all the precautions, the Constitution failed to plug the loophole or forestall the possibility that a member or members die, resign, retire, as in this case, or be removed by impeachment or disqualified, or become physically or mentally incapable, to perform the duties and functions of the office. By death, resignation, retirement, or removal by impeachment, a vacancy in the Commission is created. In these cases the President may appoint a Commissioner for the unexpired term. When such an event should come to pass the limitation to one appointment by a President would be ineffectual. By disqualification or incapacity no vacancy is created. When this possibility should eventuate to two Commissioners, the Commission’s functions would be stopped or paralyzed. Perhaps, a designation of other members during the incumbents temporary disability would not harm the public interest and common weal. But the case at bar is not one of disqualification or incapacity creating no vacancy but of retirement resulting in a vacancy. The principle or rule that the power to appoint implies or includes the authority to designate, in the same way that that power carries with it the authority to remove, under the theory that the whole includes and is greater than the part, is not absolute but subject to certain limitations. Thus, justices of the Court of Appeals appointed by the President with the consent of the Commission on Appointments of the Congress may be removed by impeachment only (sec. 24, Rep. Act No. 296); the President may remove a member of the judiciary only upon recommendation of the Supreme Court, after inquiry, in the case of judges of the Courts of First Instance (sec. 67, Rep. Act No. 296), and upon recommendation of the judge of the Court of First Instance or on the President’s own motion, after investigation, in the case of justices of the peace (sec. 97, Rep. Act No. 296); and the President or a department head may remove an officer or employee in the Civil Service, appointed either by him or by the department head upon the recommendation of the bureau head, only for cause as provided by law (sec. 4, Article XII, of the Constitution). Likewise, if it, were not for the express provision of law (secs. 9 and 27, Rep. Act No. 296), the President could not designate a justice of the Court of Appeals or a judge of the Court of First Instance to fill temporarily a vacant office of a justice in the Supreme Court or in the Court of Appeals; and he cannot certainly designate an attorney to fill temporarily such vacancy in the Supreme Court or in the Court of Appeals, but must appoint him ad interim, if Congress is not in session, or nominate him, if Congress is in session. The President cannot designate an attorney to fill temporarily a vacant position of a judge in a Court of First Instance or of a justice of the peace.
By the very nature of their functions, the members of the Commission on Elections must be independent. They must be made to feel that they are secured in the tenure of their office and entitled to fixed emoluments during their incumbency (economic security), so as to make them impartial in the performance of their functions—their powers and duties. They are not allowed to do certain things, such as to engage in the practice of a profession; to intervene, directly or indirectly, in the management or control of any private enterprise; or to be financially interested in any contract with the Government or any subdivision or instrumentality thereof (sec. 3, Article X, of the Constitution). These safeguards are all conducive or tend to Create or bring about a condition or state of mind that will lead the members of the Commission to perform with impartiality their great and important task and functions. That independence and impartiality may be shaken and destroyed by a designation of a person or officer to act temporarily in the Commission on Elections. And, although Commonwealth Act No. 588 provides that such temporary designation “shall in no case continue beyond the date of the adjournment of the regular session of the National Assembly (Congress) following such designation,” still such limit to the designation does not remove the cause for the impairment of the independence of one designated in a temporary capacity to the Commission on Elections. It would be more in keeping with the intent, purpose and aim of the framers of the Constitution to appoint a permanent Commissioner than to designate one to act temporarily. Moreover, the permanent office of the respondent may not, from the strict legal point of view, be incompatible with the temporary one to which he has been designated, tested by the nature and character of the functions he has to perform in both offices, but in a broad sense there is an incompatibility, because his duties and functions as Solicitor General require that all his time be devoted to their efficient, performance. Nothing short of tiiat is required and expected of him.
Before proceeding to dispose of the last point involved in this controversy we notice that the petitioner alleges that it is organized and registered under the laws of the Philippines. It does not aver that it is incorporated to entitle it to bring this action. It may be organized and registered as a political party in or with the Commission on Elections for the purposes of the Revised Election Code (Republic Act No. 180), but for the purpose of bringing an action in the courts of justice such organization and registration are not sufficient. It has to be incorporated under Act 1459 for “only natural or juridical persons may be parties in a civil action.” (Sec. 1, Rule 3.) But this technical defect may be cured by allowing the substitution of the real parties in interest for the petitioner.
The last point is whether prohibition is the proper remedy. Strictly speaking, there are no proceedings of the Commission on Elections in the exercise of its judicial or ministerial functions, which are being performed by it without or in excess of its jurisdiction, or with grave abuse of its discretion (sec. 2, Rule 67). The only basis for the petition is that the designation of the respondent as temporary member of the Commission on Elections is illegal and invalid because it offends against the Constitution. This special civil action as our Rules call it, or this extraordinary legal remedy following the classical or chancery nomenclature is in effect to test the validity or legality of the respondent’s designation in a temporary capacity as member of the Commission on Elections pending the appointment of a permanent member or Commissioner. It is in the nature of a quo warranto, and as such it may only be instituted by the party who claims to be entitled to the office (sec. 6, Rule 68) or by the Solicitor General (secs. 3, 4, Rule 68). The authorities and decisions of courts are almost unanimous that prohibition will not lie to determine the title of a de facto judicial officer, since its only function is to prevent a usurpation of jurisdiction by a subordinate court (High’s Extraordinary Legal Remedies, 3d ed., p. 715; Tayko vs. Capistrano, 53 Phil., 866, 871). In the case at bar, however, as we have found that the respondent’s designation to act temporarily as member of the Commission on Elections is unlawful because it offends against the provisions of the Constitution creating the Commission on Elections, the dismissal of the petition would deny and deprive the parties that are affected by such designation of a remedy and relief, because no one is entitled now to the office and a party who is not entitled to the office may not institute quo warranto proceedings, and the respondent as Solicitor General, the only other party who may institute the proceedings, would not proceed against himself. In these circumstances, it is incumbent upon and the duty of this Court to grant a remedy. There are cases involving a situation similar to the one under consideration wherein it was ruled that the remedy of prohibition may lie. In his treatise entitled “Extraordinary Legal Remedies,” High on this point says:
Thus, when the legislature have, by an unconstitutional statute, referred to a body of judges the determination of the validity of a statute concerning the liability of the state upon bonds issued in aid of railways, prohibition will lie to prevent such body from acting upon the matters thus submitted. So when an act of legislature delegates to a judge powers partly judicial and partly of a legislative character, as regards the determination of petitions for the incorporation of villages, the act being held unconstitutional because assuming to delegate legislative powers to a court or judicial body, prohibition will lie to prevent the exercise of the powers thus conferred. (High’s Extraordinary Legal Remedies, 3d ed., p. 708; Italics supplied.)
Prohibition will not be granted as a substitute for quo warranto for the purpose of trying title to a judicial office by restraining an intruder or de facto officer from acting, on the ground that he is an intruder or a de facto officer. (22 R.C.L., 17.) However, in Chambers vs. Jennings (1702) 2 Salk. 553, 91 Eng. Reprint 469, involving an action in the Court of Honor, “Holt, Ch. J., doubted whether there was or could be any such court, but said a prohibition would lie to a pretended court.” (77 A. L. R., 247.) (Italics supplied.)
Thus, in Ex parte Roundtree (1874) 51 Ala. 42, where the statute in question purported to create “the law and equity court of Morgan County,” and, in contravention of the Constitution, which provided that the judges of inferior courts should be elected by the people, declared that the circuit judge of a designated court should act as judge of the new court, it was held that prohibition was a proper remedy, and, in fact, “the only adequate remedy,” to prevent the circuit judge from presiding in the court created, and taking or exercising jurisdiction of a certain cause therein pending against the petitioner, and proceeding against the petitioner, who had been summoned as a juror. The Supreme Court declared that if a court against which a writ of prohibition,is sought is one of established jurisdiction, a plea that the subject matter of a particular suit lies without its jurisdiction, or that the party is not amenable to its cognizance, will ordinarily afford full relief; “but, when the question involves the legal existence and construction of a court,—a denial of all jurisdiction, and not of the particular jurisdiction proposed to be exercised,—a prohibition * * * is the only adequate remedy.”
So, in Curtis vs. Cornish (1912) 109 Me. 384, 84 A. 799, where a statute was plainly unconstitutional in so far as it provided for the creation of a tribunal of justices to hear and consider accusations of corrupt practices in elections, made no provision for exceptions, and denied the right of appeal, except as to questions of the eligibility of candidates to public office (so that in a particular case there was no means of review except through certiorari or writ of error, neither of which would lie until after the unconstitutional tribunal should have completed its hearings and made futile findings which it had no jurisdiction to make, and both of which were otherwise so defective under the circumstances as to be remedies in form rather than in substance), it was held proper to determine an issue as to the constitutionality of the statute in a prohibition proceeding.
In State ex rel. Hovey vs. Noble (1889) 118 Ind., 350, 21 N. E., 244, 4 L. R. A., 101, 10 Am. St. Rep., 143, where a writ of prohibition was issued against certain persons to prevent their acting as supreme court commissioners by appointment made under an unconstitutional statute, the somewhat lengthy opinion contains no. suggestion of doubt as to the propriety of the remedy in view of the conclusion that that statute in its entirety was utterly void. The statute purported to create the offices of commissioners of the supreme court as well as to provide for the appointment of commissioners. (113 A; L. R., 799.)
The foregoing authorities are invoked in view of the peculiar and extraordinary circumstances obtaining in this case already referred to, to wit: that as no one is entitled to the office there is no party who in his’ name may institute quo warranto proceedings, and that the respondent,. the only other party who may institute the proceedings in the name of the Republic of the Philippines, would not proceed against himself. Were it not for this anomalous situation where there would be no remedy to redress a constitutional transgression, we would adhere strictly to the time-honored rule that to test the right to an office quo warranto proceedings is the proper remedy.
The petitioner is granted five days within which to amend its petition so as to substitute the real parties in interest for it (the petitioner), or to show that it is a juridical person entitled to institute these proceedings. Otherwise, or if the petitioner does not amend its petition or does not show that it is a juridical entity, the petition will be dismissed. After the amendment or showing referred to shall have been made, the writ prayed for will issue, without costs.
Moran C.J., and Bengzon, J., concur.
Reyes, J., I concur, except as to the requirement that petitioner amend its petition. Under the Rules, objection to the personality of petitioner is deemed waived if not pleaded.