THE NACIONALISTA PARTY ET AL., PETITIONERS, VS. THE COMMISSION ON ELECTIONS, RESPONDENT.

This is a petition for mandamus to compel the Commission on
Elections to exclude (not to count) the votes cast for Senators in the provinces
of Negros Occidental and Lanao during the last elections in the canvass to be
performed by it pursuant to section 166 of the Revised Election Code. After due
hearing on December 9, 1949, we denied the petition. This opinion is handed down
to expound our decision.

The allegations of the petition which are admitted in
respondent’s answer are in substance as follows:

The petitioner Nacionalista Party is a national political party
with official candidates for all the offices involved in the last national
elections, and the other petitioners are the eight candidates for senators of
said party. The respondent Commission on Elections is an entity created by the
Constitution and charged with the duty of enforcing and administering all laws
relative to the conduct of elections, with the power to take proper measures to
insure free, orderly, and honest elections throughout the Philippines.

Several weeks before the holding of the last national
elections, some of the petitioners made representations to the respondent that
in view of the state of terrorism and political persecutions existing in the
provinces of Negros Occidental and Lanao against the persons of the candidates,
leaders, and sympathizers of the petitioners, intended to prevent the free
expression of the voters’ will in the national elections scheduled for November
8, 1949, and considering the rampant violation of the Election Law which were
committed in said provinces to the prejudice of the petitioners during the two
registration days, consisting among others of the padding of the electoral
census in many of the municipal districts of Lanao, it had become impossible to
hold free, orderly, and honest elections in said provinces.

In view of said representations the respondent Commission,
after considering the evidence presented before it, approved a resolution on
November 4, 1949, wherein it found in substance (1) that in Negros Occidental
the provincial governor, who was the political leader in that province of one of
the political parties (the Liberal Party), organized and fully armed special
agents, some of whom were irresponsible minors with no training in discipline;
that said agents, who owed loyalty to the provincial governor and followed
blindly the latter’s orders, arrested without warrants of arrest, threatened,
intimidated, and assaulted the political leaders and followers of the opposition; that in some places the registration of the voters was made without the
presence of the opposition inspectors because of such intimidation; that
candidates and political leaders of the opposition had to evacuate to Iloilo,
Manila, and other places for security reasons; that under the tense political
situation in the province, the armed special agents headed by the provincial
governor had full control of the election in said province; and that in the
light of these facts the Commission believed that a clean, orderly, and honest
election could not be held in the province of Negros Occidental; and (2) that in
the province of Lanao, whole sale frauds were committed in the 1947 election
consisting in the registration in various municipal districts of thousands of
fictitious voters; that in some municipal districts the number of registered
electors even exceeded the number of inhabitants; that what happened in the 1947
election in Lanao was bound to be repeated in the 1949 election, in view of the
fact that the election precincts where there was fraudulent registration of
voters were situated in distant places, the great majority of them in jungles
without any means of communication and beyond the supervision of the
representatives of the Commission on Elections. Upon these findings the
Commission recommended to the President of the Philippines the postponement of
the election in the entire province of Negros Occidental and in various
specified municipal districts of Lanao.

The President chose not to follow said recommendation, and did
not suspend the elections in the two provinces, in question.

Petitioners, further allege, but respondent denies, that the
rampant terrorism and irregularities mentioned in the resolution and
recommendation of the Commission on Elections “continued to exist during the
last election according to reports duly submitted before the respondent
Commission on Elections”; that, consequently, the elections held in the
provinces of Lanao and Negros Occidental are null and void; and that therefore
the votes cast therein should not be counted.

During the hearing of this case we were informed by counsel for
the respondent that the petitioners had presented before the Commission on
Elections a petition, which that body had not yet resolved, seeking the annulment, or exclusion from the canvass, of the votes cast for senators not only in
the provinces of Negros Occidental and Lanao but also in five other provinces
where, it is alleged, there had been no free, orderly, and honest elections.

As the court of last resort we are now called upon to define
and delimit the powers of the Commission on Elections under the Constitution and
the Election Law. Specifically, the question to decide is whether the Commission
on Elections is empowered to annul an election in any political division or
subdivision because of alleged terrorism or fraud committed in connection
therewith.

During the oral argument counsel for the petitioners sought to
impress upon us the grave political crisis with which the nation is now
confronted as a result of the last elections, during which, it is denounced, the
sovereign right of the people freely and honestly to elect their officers was
not respected but brazenly violated in several provinces by the party in power;
and that this Tribunal, as the bulwark of the people’s right, is in duty bound
to vindicate it and preserve democracy in this country. We are not unmindful of
the grave political situation, nor are we insensitive to petitioners’ vehement
plea for re dress. At the same time, it must ever be borne in mind that we are
not omnipotent; our powers and jurisdiction are circumscribed by law, which we
cannot transcend. We cannot correct an alleged abuse of power on the part of
others by means of a similar abuse of our own powers; we cannot and must not
assume the role of a dictator to forestall dictatorship; we cannot transcend the
law to foster the reign of law. Our duty is to dispense justice under the law.
We can only perform faithfully our as signed duty and expect others to perform
theirs. Constitutional government can be preserved and maintained if every
officer, who has sworn to preserve and defend the Constitution, keeps his solemn
oath faithfully.

It is in that consciousness that we now proceed to resolve the
question involved in this case.

Section 2 of Article X of the Constitution provides:

“The Commission on Elections shall have exclusive charge of the
enforcement and administration of all laws relative to the con duct of elections
and shall exercise all other functions which may be conferred upon it by law. It
shall decide, save those involving the right to vote, all administrative
questions, affecting elections, including the determination of the number and
location of polling places, and the appointment of election inspectors and other
election, officials. All law-enforcement agencies and instrumentalities of the
Government, when so required by the Commission, shall act as its deputies for
the purpose of insuring free, orderly, and honest elections. The decisions,
orders, and rulings of the Commission shall be subject to review by the Supreme
Court.”

Supplementing and in a way implementing that constitutional
provision are, in so far as pertinent here, sections 8 and 166 of the Revised
Election Code, which read as follows:

“SEC. 8. Postponement of election.—When for any
serious cause the holding of an election should become impossible in any
political division or subdivision, the President, upon recommendation of the
Commission on Elections, shall postpone the election therein for such time as he
may deem necessary.

“SEC. 166. Canvass of votes for President, Vice President
and Senators.—Thirty days after the elections have been held, the
Commission on Elections shall meet in session and shall publicly count the votes
cast for Senators. The registered candidates in the number of Senators required
to be elected who obtained the highest number of votes shall be declared
elected. A copy of such statement shall be furnished to the Secretary of the
Senate and to each elected candidate.”

Germane to the above constitutional and statutory provisions is
section 11 of Article VI of the Constitution, which reads as follows:

“SEC. 11. The Senate and the House of Representatives shall
each have an Electoral Tribunal which shall be the sole judge of all contests
relating to the election, returns, and qualifications of their respective,
Members, Each Electoral Tribunal shall be composed of nine Members, three of
whom shall be Justices of the Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members of the Senate or of the House
of Representatives, as the case may be, who shall be chosen by each House, three
upon nomination of the party having the largest number of votes and three of the
party having the second largest number of votes therein. The senior Justice in
each Electoral Tribunal shall be its Chairman.”

What are the implications of the power vested in the Commission
to enforce and administer all laws relative to the conduct of elections and to
insure free, orderly, and honest elections? Does it include the power to annul
an election which may not have been free, orderly, and honest?

It seems clear from the context of the constitutional provision
in question as well as from other provisions already quoted above that such
power is preventive only and not curative also; that is to say, it is intended
to prevent any and all forms of election fraud or violation of the Election Law,
but if it fails to accomplish that purpose, it is not the Commission on
Elections that is charged with the duty to cure or remedy the resulting evil but
some other agencies of the Government. We note from the text that the power to
decide questions involving the right to vote is expressly withheld from the
Commission although the right to vote is provided in the Election Law, the
enforcement and administration of which is placed in the exclusive charge of the
Commission. Parallel to the withholding of such power from the Commission is the
vesting in other agencies of the more inclusive power to decide all contests
relating to the election, returns, and qualifications of the members of
Congress, namely, the Electoral Tribunal of the Senate in the case of the senators and the Electoral Tribunal of the House of Representatives in the case of
the members of the latter. Election contests involving provincial and municipal
officials are entrusted to the courts. (Sections 172 et sec., Revised Election
Code.) The power to decide election contests necessarily includes the power to
determine the validity or nullity of the votes questioned by either of the
contestants.

Thus, in so far as contests relating to the election of
senators and representatives are concerned, not even this court is empowered to
intervene.

At bottom this case involves a senatorial election contest
insofar as the petitioners who are candidates for senators of the Nacionalista
Party seek to exclude or annul the votes cast for senators during the last
elections in Negros Occidental and Lanao, with the notorious defect that the
opposing candidates have not been impleaded. At this stage the obvious intent of
the petitioners is to avoid, if possible, the necessity on their part of filing
an election protest before the Electoral Tribunal of the Senate. But as we
construe the pertinent provisions of the Constitution and of the Election Law,
neither the Commission on Elections nor this court is empowered to forestall and
much less decide the impending contest. The jurisdiction over such case is
expressly and exclusively vested by the Constitution in the Electoral Tribunal
of the Senate. Implementing the constitutional man date on the subject, section
182 of the Revised Election Code provides:

“In contests under their respective jurisdiction, the Electoral
Tribunals of the Senate and the House of Representatives shall have and exercise
the same powers which the law confers upon the courts, including that of
summarily punishing contempts, ordering the taking of depositions, the arrests
of witnesses for the purpose of compelling their appearances and the production
of documents and other evidence, and the compulsory payment of costs and
expenses which it may have assessed against the parties and their bondsmen; of
giving notices of its decisions, resolutions, and orders and enforcing them
through the officials charged with the enforcement of judicial orders; and of
making the necessary rules for the effective performance of their constitutional
functions. All the expenses of the said Tribunals and of their respective
members shall be paid from the funds of the House of Congress to which each
Tribunal pertains, and their telegrams and correspondence shall be transmitted
free of charge.”

Section 166 of the Revised Election Code hereinabove quoted
constitutes the Commission on Elections as a national board of canvassers with
respect to the election of senators, who under section 2 of Article VI of the
Constitution are chosen at large by the qualified electors of the Philippines.
In the absence of any provision in the law making the members of a canvassing
board judges of the election and giving them full power and authority to approve
thereof or set it aside and order a new election, “such a board is considered to
be merely a ministerial body, which is empowered only to accept as correct
returns transmitted to it, which are in due form, and to ascertain and declare
the result as it appears therefrom. Questions of illegal voting and
fraudulent practices are passed on by another tribunal. 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 sighed by the proper officers. When so satisfied, however, they may not
reject any returns because of informalities in them or because of illegal and
fraudulent practices in the election. * * *. Where the returns are obviously
manufactured, as where they show a great excess of votes over what could legally
have been cast, the board will not be compelled to canvass them.” (18 Am. Jur.,
Elections, sec. 254, pp. 346-348.)

It is contended for the petitioners that since the respondent
Commission itself had recommended to the President the postponement of the
election in the whole province of Negros Occidental and in certain specified
municipal districts of Lanao because it was deemed impossible to hold a free,
orderly, and honest election therein, the respondent Commission should be
ordered to consider null and exclude the votes cast for senators in the election
held in said provinces.

We do not deem it proper for us to determine the legal effect
of the Commission’s recommendation to the President to postpone the election in
said provinces; that is to say, whether or not it was mandatory on the President
to follow said recommendation and, in the affirmative case, whether the failure
of the President to do so would render void the election in those places. Under
the Constitution, “questions of illegal voting and fraudulent practices are
passed on by another tribunal,” the Electoral Tribunal of the Senate. Such
questions will in all probability be raised before said tribunal at the proper
time, and we must not prejudge an issue over which we have no jurisdiction.
Whether the votes for senators in Negros Occidental and Lanao are valid or
invalid is a question which neither the Commission on Elections nor this court
is empowered to decide.

Upon the facts and the law as above expounded, we have no
authority to grant the remedy prayed for. The writ of mandamus lies “when any
tribunal, corporation, board, or person unlawfully neglects the performance of
an act which the law specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from the use and enjoyment of
a right or office to which such other is entitled, and there is no other plain,
speedy, and adequate remedy in the ordinary course of law.” (Section 3, Rule
67.) We have seen that it is not the duty of the Commission on Elections to pass
upon the legality of an election alleged to have been tainted with fraud,
intimidation, or other violation of the Election Law. On the contrary, it is its
ministerial duty to count the votes appearing in the election returns after
satisfying itself of the genuineness of said returns. What in effect the
petitioners seek is to require the respondent to desist from performing a
ministerial duty.

The petition is denied, with costs against the petitioners.

Moran, C.J., Paras, Pablo, Bengzon, Padilla, Tuason,
Montemayor, Reyes, and Torres, JJ., concur.