Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 115044 January 27, 1995
HON. ALFREDO S. LIM, in his capacity as Mayor of
Manila, and the City of Manila, petitioners,
vs.
HON. FELIPE G. PACQUING, as Judge, branch 40,
Regional Trial Court of Manila and ASSOCIATED
CORPORATION, respondents.
G.R. No. 117263 January 27, 1995
TEOFISTO GUINGONA, JR. and DOMINADOR R.
CEPEDA, petitioners,
vs.
HON. VETINO REYES and ASSOCIATED DEVELOPMENT
CORPORATION, respondents.
PADILLA, J.:
These two (2) cases which are inter-related actually involve
simple issues. if these issues have apparently become
complicated, it is not by reason of their nature because of the
events and dramatis personae involved.
The petition in G.R. No. 115044 was dismissed by the First
Division of this Court on 01 September 1994 based on a
finding that there was "no abuse of discretion, much less lack
of or excess of jurisdiction, on the part of respondent judge
[Pacquing]", in issuing the questioned orders. Judge Pacquing
had earlier issued in Civil Case No. 88-45660, RTC of Manila,
Branch 40, the following orders which were assailed by the
Mayor of the City of Manila, Hon. Alfredo S. Lim, in said G.R.
No. 115044:
a. order dated 28 March 1994 directing Manila mayor Alfredo
S. Lim to issue the permit/license to operate the jai-alai in
favor of Associated Development Corporation (ADC).
b. order dated 11 April 1994 directing mayor Lim to explain
why he should not be cited for contempt for non-compliance
with the order dated 28 March 1994.
c. order dated 20 April 1994 reiterating the previous order
directing Mayor Lim to immediately issue

the permit/license to Associated Development Corporation

(ADC).
The order dated 28 march 1994 was in turn issued upon
motion by ADC for execution of a final judgment rendered on
9 September 1988 which ordered the Manila Mayor to
immediately issue to ADC the permit/licenseto operate the
jai-alai in Manila, under Manila Ordinance No. 7065.
On 13 September 1994, petitioner Guingona (as executive
secretary) issued a directive to then chairman of the Games
and Amusements Board (GAB) Francisco R. Sumulong, jr. to
hold in abeyance the grant of authority, or if any had been
issued, to withdraw such grant of authority, to Associated
Development Corporation to operate the jai-alai in the City of
Manila, until the following legal questions are properly
resolved:
1. Whether P.D. 771 which revoked all existing Jai-Alai
franchisers issued by local governments as of 20 August
1975 is unconstitutional.
2. Assuming that the City of Manila had the power on 7
September 1971 to issue a Jai-Alai franchise to Associated
Development Corporation, whether the franchise granted is
valied considering that the franchise has no duration, and
appears to be granted in perpetuity.
3. Whether the City of Manila had the power to issue a Jai-Alai
franchise to Associated Development Corporation on 7
September 1971 in view of executive Order No. 392 dated 1
January 1951 which transferred from local governments to
the Games and Amusements Board the power to regulate JaiAlai. 1
On 15 September 1994, respondent Associated Development
Corporation (ADC) filed a petition for prohibition,mandamus,
injunction and damages with prayer for temporary restraining
order and/or writ of preliminary injunction in the Regional
Trial Court of Manila against petitioner Guingona and then
GAB chairman Sumulong, docketed as Civil Case No. 9471656, seeking to prevent GAB from withdrawing the
provisional authority that had earlier been granted to ADC.
On the same day, the RTC of Manila, Branch 4, through
presiding Judge Vetino Reyes, issued a temporary restraining
order enjoining the GAB from withdrawing ADC's provisional
authority. This temporary restraining order was converted

into a writ of preliminary injunction upon ADC's posting of a

bond in the amount of P2,000,000.00. 2
Subsequently, also in G.R. No. 115044, the Republic of the
Philippines, through the Games and Amusements Board, filed
a "Motion for Intervention; for Leave to File a Motion for
reconsideration in Intervention; and to Refer the case to the
Court En Banc" and later a "Motion for Leave to File
Supplemental Motion for Reconsideration-in-Intervention and
to Admit Attached Supplemental Motion for Reconsiderationin-Intervention".
In an En Banc Resolution dated 20 September 1994, this
Court referred G.R. No. 115044 to the Court En Bancand
required the respondents therein to comment on the
aforementioned motions.
Meanwhile, Judge Reyes on 19 October 1994 issued another
order, this time, granting ADC a writ of
preliminarymandatory injunction against Guingona and GAB
to compel them to issue in favor of ADC the authority to
operate jai-alai.
Guingona, as executive secretary, and Dominador Cepeda, Jr.
as the new GAB chairman, then filed the petition in G.R. No.
117263 assailing the abovementioned orders of respondent
Judge Vetino Reyes.
On 25 October 1994, in G.R. No. 117263, this Court granted
petitioner's motion for leave to file supplemental petition and
to admit attached supplemental petition with urgent prayer
for restraining order. The Court further required respondents
to file their comment on the petition and supplemental
petition with urgent prayer for restraining order. The Court
likewise set the case and all incidents thereof for hearing on
10 November 1994.
At the hearing on 10 November 1994, the issues to be
resolved were formulated by the Court as follows:
1. whether or not intervention by the Republic of the
Philippines at this stage of the proceedings is proper;
2. assuming such intervention is proper, whether or not the
Associated Development Corporation has a valid and
subsisting franchise to maintain and operate the jai-alai;
3. whether or not there was grave abuse of discretion
committed by respondent Judge Reyes in issuing the
aforementioned temporary restraining order (later writ of
preliminary injunction); and

4. whether or not there was grave abuse of discretion

committed by respondent Judge Reyes in issuing the
aforementioned writ of preliminary mandatory injunction.
On the issue of the propriety of the intervention by the
Republic of the Philippines, a question was raised during the
hearing on 10 November 1994 as to whether intervention in
G.R. No. 115044 was the proper remedy for the national
government to take in questioning the existence of a valid
ADC franchise to operate the jai-alai or whether a separate
action for quo warranto under Section 2, Rule 66 of the Rules
of Court was the proper remedy.
We need not belabor this issue since counsel for respondent
ADC agreed to the suggestion that this Court once and for all
settle all substantive issues raised by the parties in these
cases. Moreover, this Court can consider the petition filed in
G.R. No. 117263 as one for quo warranto which is within the
original jurisdiction of the Court under section 5(1), Article
VIII of the Constitution. 3
On the propriety of intervention by the Republic, however, it
will be recalled that this Court in Director of Lands v. Court of
Appeals (93 SCRA 238) allowed intervention even beyond the
period prescribed in Section 2 Rule 12 of the Rules of Court.
The Court ruled in said case that a denial of the motions for
intervention would "lead the Court to commit an act of
injustice to the movants, to their successor-in-interest and to
all purchasers for value and in good faith and thereby open
the door to fraud, falsehood and misrepresentation, should
intervenors' claim be proven to be true."
In the present case, the resulting injustice and injury, should
the national government's allegations be proven correct, are
manifest, since the latter has squarely questioned the very
existence of a valid franchise to maintain and operate the jaialai (which is a gambling operation) in favor of ADC. As will
be more extensively discussed later, the national
government contends that Manila Ordinance No. 7065 which
purported to grant to ADC a franchise to conduct jai-alai
operations is void and ultra vires since Republic Act No. 954,
approved on 20 June 1953, or very much earlier than said
Ordinance No. 7065, the latter approved 7 September 1971,
in Section 4 thereof, requires a legislative franchise, not a
municipal franchise, for the operation of jai-alai. Additionally,
the national government argues that even

assuming, arguendo, that the abovementioned ordinance is

valid, ADC's franchise was nonetheless effectively revoked by
Presidential decree No. 771, issued on 20 August 1975, Sec.
3 of which expressly revoked all existing franchises and
permits to operate all forms of gambling facilities (including
the jai-alai) issued by local governments.
On the other hand, ADC's position is that Ordinance No. 7065
was validly enacted by the City of Manila pursuant to its
delegated powers under it charter, Republic Act No. 409. ADC
also squarely assails the constitutionality of PD No. 771 as
violative of the equal protection and non-impairment clauses
of the Constitution. In this connection, counsel for ADC
contends that this Court should really rule on the validity of
PD No. 771 to be able to determine whether ADC continues
to possess a valid franchise.
It will undoubtedly be a grave injustice to both parties in this
case if this Court were to shirk from ruling on the issue of
constitutionality of PD No. 771. Such issue has, in our view,
become the very lis mota in resolving the present
controversy, in view of ADC's insistence that it was granted a
valid and legal franchise by Ordinance No. 7065 to operate
the jai-alai.
The time-honored doctrine is that all laws (PD No. 771
included) are presumed valid and constitutional until or
unless otherwise ruled by this Court. Not only this; Article
XVIII Section 3 of the Constitution states:
Sec. 3. All existing laws, decrees, executive orders,
proclamations, letters of instructions and other executive
issuances not inconsistent with this Constitution shall remain
operative until amended, repealed or revoked.
There is nothing on record to show or even suggest that PD
No. 771 has been repealed, altered or amended by any
subsequent law or presidential issuance (when the executive
still exercised legislative powers).
Neither can it be tenably stated that the issue of the
continued existence of ADC's franchise by reason of the
unconstitutionality of PD No. 771 was settled in G.R. No.
115044, for the decision of the Court's First Division in said
case, aside from not being final, cannot have the effect of
nullifying PD No. 771 as unconstitutional, since only the
Court En Banc has that power under Article VIII, Section 4(2)
of the Constitution. 4

And on the question of whether or not the government

is estopped from contesting ADC's possession of a valid
franchise, the well-settled rule is that the State cannot be put
in estoppel by the mistakes or errors, if any, of its officials or
agents (Republic v. Intermediate Appellate Court, 209 SCRA
90)
Consequently, in the light of the foregoing expostulation, we
conclude that the republic (in contra distinction to the City of
Manila) may be allowed to intervene in G.R. No. 115044. The
Republic is intervening in G.R. No. 115044 in the exercise, not
of its business or proprietary functions, but in the exercise of
its governmental functions to protect public morals and
promote the general welfare.
II
Anent the question of whether ADC has a valid franchise to
operate the Jai-Alai de Manila, a statement of the pertinent
laws is in order.
1. The Charter of the City of Manila was enacted by Congress
on 18 June 1949. Section 18 thereof provides:
Sec. 18. Legislative Powers. The Municipal Board shall
have the following legislative powers:
xxx xxx xxx
(jj) To tax, license, permit and regulate wagers or betting by
the public on boxing, sipa, bowling, billiards, pools, horse and
dog races, cockpits, jai-alai, roller or ice-skating on any
sporting or athletic contests, as well as grant exclusive rights
to establishments for this purpose, notwithstanding any
existing law to the contrary.
2. On 1 January 1951, Executive Order No. 392 was issued
transferring the authority to regulate jai-alais from local
government to the Games and Amusements Board (GAB).
3. On 20 June 1953, Congress enacted Republic Act No. 954,
entitled "An Act to Prohibit With Horse Races and Basque
Pelota Games (Jai-Alai), And To Prescribe Penalties For Its
Violation". The provisions of Republic Act No. 954 relating to
jai-alai are as follows:
Sec. 4. No person, or group of persons other than the
operator or maintainer of a fronton with legislative
franchise to conduct basque pelota games (Jai-alai), shall
offer, to take or arrange bets on any basque pelota game or
event, or maintain or use a totalizator or other device,

method or system to bet or gamble on any basque pelota

game or event. (emphasis supplied).
Sec. 5. No person, operator or maintainer of a fronton with
legislative franchise to conduct basque pelota games shall
offer, take, or arrange bets on any basque pelota game or
event, or maintain or use a totalizator or other device,
method or system to bet or gamble on any basque pelota
game or event outside the place, enclosure, or fronton where
the basque pelota game is held. (emphasis supplied).
4. On 07 September 1971, however, the Municipal Board of
Manila nonetheless passed Ordinance No. 7065 entitled "An
Ordinance Authorizing the Mayor To Allow And Permit The
Associated Development Corporation To Establish, Maintain
And Operate A Jai-Alai In The City Of Manila, Under Certain
Terms And Conditions And For Other Purposes."
5. On 20 August 1975, Presidential Decree No. 771 was
issued by then President Marcos. The decree, entitled
"Revoking All Powers and Authority of Local Government(s) To
Grant Franchise, License or Permit And Regulate Wagers Or
Betting By The Public On Horse And Dog Races, Jai-Alai Or
Basque Pelota, And Other Forms Of Gambling", in Section 3
thereof, expressly revoked all existing franchises and permits
issued by local governments.
6. On 16 October 1975, Presidential Decree No. 810, entitled
"An Act granting The Philippine Jai-Alai And Amusement
Corporation A Franchise To Operate, Construct And Maintain
A Fronton For Basque Pelota And Similar Games of Skill In
THE Greater Manila Area," was promulgated.
7 On 08 May 1987, then President Aquino, by virtue of Article
XVIII, Section 6, of the Constitution, which allowed the
incumbent legislative powers until the first Congress was
convened, issued Executive Order No. 169 expressly
repealing PD 810 and revoking and cancelling the franchise
granted to the Philippine Jai-Alai and Amusement
Corporation.
Petitioners in G.R. No. 117263 argue that Republic Act No.
954 effectively removed the power of the Municipal Board of
Manila to grant franchises for gambling operations. It is
argued that the term "legislative franchise" in Rep. Act No.
954 is used to refer to franchises issued by Congress.
On the other hand, ADC contends that Republic Act N. 409
(Manila Chapter) gives legislative powers to the Municipal

Board to grant franchises, and since Republic Act No. 954

does not specifically qualify the word "legislative" as referring
exclusively to Congress, then Rep. Act No. 954 did not
remove the power of the Municipal Board under Section 18(jj)
of Republic Act No. 409 and consequently it was within the
power of the City of Manila to allow ADC to operate the jaialai in the City of Manila.
On this point, the government counter-argues that the term
"legislative powers" is used in Rep. Act No. 409 merely to
distinguish the powers under Section 18 of the law from the
other powers of the Municipal Board, but that the term
"legislative franchise" in Rep. Act No. 954 refers to a
franchise granted solely by Congress.
Further, the government argues that Executive Order No. 392
dated 01 January 1951 transferred even the power to
regulate Jai-Alai from the local governments to the Games
and Amusements Board (GAB), a national government
agency.
It is worthy of note that neither of the authorities relied upon
by ADC to support its alleged possession of a valid franchise,
namely the Charter of the City of Manila (Rep. Act No. 409)
and Manila Ordinance No. 7065 uses the word "franchise".
Rep. Act No. 409 empowers the Municipal Board of Manila to
"tax, license, permit and regulatewagers or betting" and to
"grant exclusive rights to establishments", while Ordinance
No. 7065 authorized the Manila City Mayor to "allow and
permit" ADC to operate jai-alai facilities in the City of Manila.
It is clear from the foregoing that Congress did not delegate
to the City of Manila the power "to franchise" wagers or
betting, including the jai-alai, but retained for itself such
power "to franchise". What Congress delegated to the City of
Manila in Rep. Act No. 409, with respect to wagers or betting,
was the power to "license, permit, or regulate" which
therefore means that a license or permit issued by the City of
Manila to operate a wager or betting activity, such as the jaialai where bets are accepted, would not amount to
something meaningful UNLESS the holder of the permit or
license was also FRANCHISED by the national government to
so operate. Moreover, even this power to license, permit, or
regulate wagers or betting on jai-alai was removed from local
governments, including the City of Manila, and transferred to
the GAB on 1 January 1951 by Executive Order No. 392. The

net result is that the authority to grant franchises for the

operation of jai-alai frontons is in Congress, while the
regulatory function is vested in the GAB.
In relation, therefore, to the facts of this case, since ADC has
no franchise from Congress to operate the jai-alai, it may not
so operate even if its has a license or permit from the City
Mayor to operate the jai-alai in the City of Manila.
It cannot be overlooked, in this connection, that the Revised
Penal Code punishes gambling and betting under Articles 195
to 199 thereof. Gambling is thus generally prohibited by law,
unless another law is enacted byCongress expressly
exempting or excluding certain forms of gambling from the
reach of criminal law. Among these form the reach of criminal
law. Among these forms of gambling allowed by special law
are the horse races authorized by Republic Acts Nos. 309 and
983 and gambling casinos authorized under Presidential
Decree No. 1869.
While jai-alai as a sport is not illegal per se, the accepting of
bets or wagers on the results of jai-alai games is undoubtedly
gambling and, therefore, a criminal offense punishable under
Articles 195-199 of the Revised Penal Code, unless it is shown
that a later or special law had been passed allowing it. ADC
has not shown any such special law.
Republic Act No. 409 (the Revised Charter of the City of
Manila) which was enacted by Congress on 18 June 1949
gave the Municipal Board certain delegated legislative
powers under Section 18. A perusal of the powers
enumerated under Section 18 shows that these powers are
basically regulatory in nature. 5 The regulatory nature of
these powers finds support not only in the plain words of the
enumerations under Section 28 but also in this Court's ruling
inPeople v. Vera (65 Phil. 56).
In Vera, this Court declared that a law which gives the
Provincial Board the discretion to determine whether or not a
law of general application (such as, the Probation law-Act No.
4221) would or would not be operative within the province, is
unconstitutional for being an undue delegation of legislative
power.
From the ruling in Vera, it would be logical to conclude that, if
ADC's arguments were to prevail, this Court would likewise
declare Section 18(jj) of the Revised Charter of Manila
unconstitutional for the power it would delegate to the

Municipal Board of Manila would give the latter the absolute

and unlimited discretion to render the penal code provisions
on gambling inapplicable or inoperative to persons or entities
issued permits to operate gambling establishments in the
City of Manila.
We need not go to this extent, however, since the rule is that
laws must be presumed valid, constitutional and in harmony
with other laws. Thus, the relevant provisions of Rep. Acts
Nos. 409 and 954 and Ordinance No. 7065 should be taken
together and it should then be clear that the legislative
powers of the Municipal Board should be understood to be
regulatory in nature and that Republic Act No. 954 should be
understood to refer tocongressional franchises, as a
necessity for the operation of jai-alai.
We need not, however, again belabor this issue further since
the task at hand which will ultimately, and with finality,
decide the issues in this case is to determine whether PD No.
771 validly revoked ADC's franchise to operate the jai-alai,
assuming (without conceding) that it indeed possessed such
franchise under Ordinance No. 7065.
ADC argues that PD No. 771 is unconstitutional for being
violative of the equal protection and non-impairment
provisions of the Constitution. On the other hand, the
government contends that PD No. 771 is a valid exercise of
the inherent police power of the State.
The police power has been described as the least limitable of
the inherent powers of the State. It is based on the ancient
doctrine salus populi est suprema lex (the welfare of the
people is the supreme law.) In the early case of Rubi v.
Provincial Board of Mindoro (39 Phil. 660), this Court through
Mr. Justice George A. Malcolm stated thus:
The police power of the State . . . is a power co-extensive
with self-protection, and is not inaptly termed the "law of
overruling necessity." It may be said to be that inherent and
plenary power in the State which enables it to prohibit all
things hurtful to the comfort, safety and welfare of society.
Carried onward by the current of legislation, the judiciary
rarely attempts to dam the onrushing power of legislative
discretion, provided the purposes of the law do not go
beyond the great principles that mean security for the public
welfare or do not arbitrarily interfere with the right of the
individual.

In the matter of PD No. 771, the purpose of the law is clearly

stated in the "whereas clause" as follows:
WHEREAS, it has been reported that in spite of the current
drive of our law enforcement agencies against vices and
illegal gambling, these social ills are still prevalent in many
areas of the country;
WHEREAS, there is need to consolidate all the efforts of the
government to eradicate and minimize vices and other forms
of social ills in pursuance of the social and economic
development program under the new society;
WHEREAS, in order to effectively control and regulate wagers
or betting by the public on horse and dog races, jai-alai and
other forms of gambling there is a necessity to transfer the
issuance of permit and/or franchise from local government to
the National Government.
It cannot be argued that the control and regulation of
gambling do not promote public morals and welfare.
Gambling is essentially antagonistic and self-reliance. It
breeds indolence and erodes the value of good, honest and
hard work. It is, as very aptly stated by PD No. 771, a vice
and a social ill which government must minimize (if not
eradicate) in pursuit of social and economic development.
In Magtajas v. Pryce Properties Corporation (20 July 1994,
G.R. No. 111097), this Court stated thru Mr. Justice Isagani A.
Cruz:
In the exercise of its own discretion, the legislative power
may prohibit gambling altogether or allow it without
limitation or it may prohibit some forms of gambling and
allow others for whatever reasons it may consider sufficient.
Thus, it has prohibited jueteng and monte but permits
lotteries, cockfighting and horse-racing. In making such
choices, Congress has consulted its own wisdom, which this
Court has no authority to review, much less reverse. Well has
it been said that courts do not sit to resolve the merits of
conflicting theories. That is the prerogative of the political
departments. It is settled that questions regarding wisdom,
morality and practicability of statutes are not addressed to
the judiciary but may be resolved only by the executive and
legislative departments, to which the function belongs in our
scheme of government. (Emphasis supplied)
Talks regarding the supposed vanishing line
between right and privilege in American constitutional law

has no relevance in the context of these cases since the

reference there is to economic regulations. On the other
hand, jai-alai is not a mere economic activity which the law
seeks to regulate. It is essentially gambling and whether it
should be permitted and, if so, under what conditions are
questions primarily for the lawmaking authority to determine,
talking into account national and local interests. Here, it is
the police power of the State that is paramount.
ADC questions the motive for the issuance of PD Nos. 771.
Clearly, however, this Court cannot look into allegations that
PD No. 771 was enacted to benefit a select group which was
later given authority to operate the jai-alai under PD No. 810.
The examination of legislative motivation is generally
prohibited. (Palmer v. Thompson, 403 U.S. 217, 29 L. Ed. 2d
438 [1971] per Black, J.) There is, the first place, absolute
lack of evidence to support ADC's allegation of improper
motivation in the issuance of PD No. 771. In the second
place, as already averred, this Court cannot go behind the
expressed and proclaimed purposes of PD No. 771, which are
reasonable and even laudable.
It should also be remembered that PD No. 771 provides that
the national government can subsequently grant franchises
"upon proper application and verification of the qualifications
of the applicant." ADC has not alleged that it filed an
application for a franchise with the national government
subsequent to the enactment of PD No. 771; thus, the
allegations abovementioned (of preference to a select group)
are based on conjectures, speculations and imagined biases
which do not warrant the consideration of this Court.
On the other hand, it is noteworthy that while then president
Aquino issued Executive Order No. 169 revoking PD No. 810
(which granted a franchise to a Marcos-crony to operate the
jai-alai), she did not scrap or repeal PD No. 771 which had
revoked all franchises to operate jai-alais issued by local
governments, thereby re-affirming the government policy
that franchises to operate jai-alais are for the national
government (not local governments) to consider and
approve.
On the alleged violation of the non-impairment and equal
protection clauses of the Constitution, it should be
remembered that a franchise is not in the strict sense a
simple contract but rather it is more importantly, a mere

privilege specially in matters which are within the

government's power to regulate and even prohibit through
the exercise of the police power. Thus, a gambling franchise
is always subject to the exercise of police power for the
public welfare.
In RCPI v. NTC (150 SCRA 450), we held that:
A franchise started out as a "royal privilege or (a) branch of
the King's prerogative, subsisting in the hands of a subject."
This definition was given by Finch, adopted by Blackstone,
and accepted by every authority since . . . Today, a franchise
being merely a privilege emanating from the sovereign
power of the state and owing its existence to a grant, is
subject to regulation by the state itself by virtue of its police
power through its administrative agencies.
There is a stronger reason for holding ADC's permit to be a
mere privilege because jai-alai, when played for bets, is pure
and simple gambling. To analogize a gambling franchise for
the operation of a public utility, such as public transportation
company, is to trivialize the great historic origin of this
branch of royal privilege.
As earlier noted, ADC has not alleged ever applying for a
franchise under the provisions of PD No. 771. and yet, the
purpose of PD No. 771 is quite clear from its provisions, i.e.,
to give to the national government the exclusive power to
grant gambling franchises. Thus, all franchises then existing
were revoked but were made subject to reissuance by the
national government upon compliance by the applicant with
government-set qualifications and requirements.
There was no violation by PD No. 771 of the equal protection
clause since the decree revoked all franchises issued by local
governments without qualification or exception. ADC cannot
allege violation of the equal protection clause simply because
it was the only one affected by the decree, for as correctly
pointed out by the government, ADC was not singled out
when all jai-alai franchises were revoked. Besides, it is too
late in the day for ADC to seek redress for alleged violation of
its constitutional rights for it could have raised these issues
as early as 1975, almost twenty 920) years ago.
Finally, we do not agree that Section 3 of PD No. 771 and the
requirement of a legislative franchise in Republic Act No. 954
are "riders" to the two 92) laws and are violative of the rule
that laws should embrace one subject which shall be

expressed in the title, as argued by ADC. In Cordero v.

Cabatuando (6 SCRA 418), this Court ruled that the
requirement under the constitution that all laws should
embrace only one subject which shall be expressed in the
title is sufficiently met if the title is comprehensive enough
reasonably to include the general object which the statute
seeks to effect, without expressing each and every end and
means necessary or convenient for the accomplishing of the
objective.
III
On the issue of whether or not there was grave abuse of
discretion committed by respondent Judge Reyes in issuing
the temporary restraining order (later converted to a writ of
preliminary injunction) and the writ of
preliminary mandatory injunction, we hold and rule there
was.
Section 3, Rule 58 of the rules of Court provides for the
grounds for the issuance of a preliminary injunction. While
ADC could allege these grounds, respondent judge should
have taken judicial notice of Republic Act No. 954 and PD
771, under Section 1 rule 129 of the Rules of court. These
laws negate the existence of any legal right on the part of
ADC to the reliefs it sought so as to justify the issuance of a
writ of preliminary injunction. since PD No. 771 and Republic
Act No. 954 are presumed valid and constitutional until ruled
otherwise by the Supreme Court after due hearing, ADC was
not entitled to the writs issued and consequently there was
grave abuse of discretion in issuing them.
WHEREFORE, for the foregoing reasons, judgment is hereby
rendered:
1. allowing the Republic of the Philippines to intervene in G.R.
No. 115044.
2. declaring Presidential Decree No. 771 valid and
constitutional.
3. declaring that respondent Associated Development
corporation (ADC) does not possess the required
congressional franchise to operate and conduct the jai-alai
under Republic Act No. 954 and Presidential Decree No. 771.
4. setting aside the writs of preliminary injunction and
preliminary mandatory injunction issued by respondent Judge
Vetino Reyes in civil Case No. 94-71656.
SO ORDERED.

Feliciano, Bidin, Regalado, Romero, Bellosillo and Mendoza,

JJ., concur.
Narvasa, C.J. and Francisco, JJ., took no part.

EN BANC
[G.R. No. 144463. January 14, 2004]
SENATOR ROBERT S. JAWORSKI, petitioner, vs.
PHILIPPINE AMUSEMENT AND GAMING CORPORATION
and SPORTS AND GAMES ENTERTAINMENT
CORPORATION, respondents.
DECISION

YNARES-SANTIAGO, J.:
The instant petition for certiorari and prohibition under Rule
65 of the Rules of Court seeks to nullify the Grant of Authority
and Agreement for the Operation of Sports Betting and
Internet Gaming, executed by respondent Philippine
Amusement and Gaming Corporation (hereinafter referred to
as PAGCOR) in favor of respondent Sports and Games and
Entertainment Corporation (also referred to as SAGE).
The facts may be summarized as follows:
PAGCOR is a government owned and controlled corporation
existing under Presidential Decree No. 1869 issued on July
11, 1983 by then President Ferdinand Marcos. Pertinent
provisions of said enabling law read:
SECTION 1. Declaration of Policy. It is hereby declared to be
the policy of the State to centralize and integrate all games
of chance not heretofore authorized by existing franchises or
permitted by law in order to attain the following objectives:
xxxxxxxxx
b) To establish and operate clubs and casinos, for
amusement and recreation, including sports, gaming pools
(basketball, football, lotteries, etc.) and such other forms of
amusement and recreation including games of chance, which
may be allowed by law within the territorial jurisdiction of the
Philippines and which will: x x x (3) minimize, if not totally
eradicate, the evils, malpractices and corruptions that are
normally prevalent in the conduct and operation of gambling
clubs and casinos without direct government involvement.
xxxxxxxxx
TITLE IV GRANT OF FRANCHISE
Sec.10. Nature and term of franchise. Subject to the terms
and conditions established in this Decree, the Corporation is
hereby granted for a period of twenty-five (25) years,
renewable for another twenty-five (25) years, the rights,
privileges and authority to operate and maintain gambling
casinos, clubs, and other recreation or amusement places,
sports, gaming pools, i.e. basketball, football, lotteries, etc.
whether on land or sea, within the territorial jurisdiction of
the Republic of the Philippines.
On March 31, 1998, PAGCORs board of directors approved an
instrument denominated as Grant of Authority and
Agreement for the Operation of Sports Betting and Internet
Gaming, which granted SAGE the authority to operate and

maintain Sports Betting station in PAGCORs casino locations,

and Internet Gaming facilities to service local and
international bettors, provided that to the satisfaction of
PAGCOR, appropriate safeguards and procedures are
established to ensure the integrity and fairness of the games.
On September 1, 1998, PAGCOR, represented by its
Chairperson, Alicia Ll. Reyes, and SAGE, represented by its
Chairman of the Board, Henry Sy, Jr., and its President,
Antonio D. Lacdao, executed the above-named document.
Pursuant to the authority granted by PAGCOR, SAGE
commenced its operations by conducting gambling on the
Internet on a trial-run basis, making pre-paid cards and
redemption of winnings available at various Bingo Bonanza
outlets.
Petitioner, in his capacity as member of the Senate and
Chairman of the Senate Committee on Games, Amusement
and Sports, files the instant petition, praying that the grant of
authority by PAGCOR in favor of SAGE be nullified. He
maintains that PAGCOR committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it authorized
SAGE to operate gambling on the internet. He contends that
PAGCOR is not authorized under its legislative franchise, P.D.
1869, to operate gambling on the internet for the simple
reason that the said decree could not have possibly
contemplated internet gambling since at the time of its
enactment on July 11, 1983 the internet was yet inexistent
and gambling activities were confined exclusively to realspace. Further, he argues that the internet, being an
international network of computers, necessarily transcends
the territorial jurisdiction of the Philippines, and the grant to
SAGE of authority to operate internet gambling contravenes
the limitation in PAGCORs franchise, under Section 14 of P.D.
No. 1869 which provides:
Place. The Corporation [i.e., PAGCOR] shall conduct gambling
activities or games of chance on land or water within the
territorial jurisdiction of the Republic of the Philippines. x x x
Moreover, according to petitioner, internet gambling does not
fall under any of the categories of the authorized gambling
activities enumerated under Section 10 of P.D. No. 1869
which grants PAGCOR the right, privilege and authority to
operate and maintain gambling casinos, clubs, and other
recreation or amusement places, sports gaming pools, within

the territorial jurisdiction of the Republic of the Philippines.

[1]
He contends that internet gambling could not have been
included within the commonly accepted definition of
gambling casinos, clubs or other recreation or amusement
places as these terms refer to a physical structure in realspace where people who intend to bet or gamble go and play
games of chance authorized by law.
The issues raised by petitioner are as follows:
I. WHETHER OR NOT RESPONDENT PAGCOR IS AUTHORIZED
UNDER P.D. NO. 1869 TO OPERATE GAMBLING ACTIVITIES ON
THE INTERNET;
II. WHETHER RESPONDENT PAGCOR ACTED WITHOUT OR IN
EXCESS OF ITS JURISDICTION, OR GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION, WHEN IT AUTHORIZED RESPONDENT SAGE TO
OPERATE INTERNET GAMBLING ON THE BASIS OF ITS RIGHT
TO OPERATE AND MAINTAIN GAMBLING CASINOS, CLUBS AND
OTHER AMUSEMENT PLACES UNDER SECTION 10 OF P.D.
1869;
III. WHETHER RESPONDENT PAGCOR ACTED WITHOUT OR IN
EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT GRANTED AUTHORITY TO SAGE TO
OPERATE GAMBLING ACTIVITIES IN THE INTERNET.
The above-mentioned issues may be summarized into a
single pivotal question: Does PAGCORs legislative franchise
include the right to vest another entity, SAGE in this case,
with the authority to operate Internet gambling? Otherwise
put, does Presidential Decree No. 1869 authorize PAGCOR to
contract any part of its franchise to SAGE by authorizing the
latter to operate Internet gambling?
Before proceeding with our main discussion, let us first try to
hurdle a number of important procedural matters raised by
the respondents.
In their separate Comments, respondents PAGCOR and SAGE
insist that petitioner has no legal standing to file the instant
petition as a concerned citizen or as a member of the
Philippine Senate on the ground that he is not a real party-ininterest entitled to the avails of the suit. In this light, they
argue that petitioner does not have the requisite personal
and substantial interest to impugn the validity of PAGCORs
grant of authority to SAGE.

Objections to the legal standing of a member of the Senate

or House of Representative to maintain a suit and assail the
constitutionality or validity of laws, acts, decisions, rulings, or
orders of various government agencies or instrumentalities
are not without precedent. Ordinarily, before a member of
Congress may properly challenge the validity of an official act
of any department of the government there must be an
unmistakable showing that the challenged official act affects
or impairs his rights and prerogatives as legislator. [2] However
in a number of cases,[3] we clarified that where a case
involves an issue of utmost importance, or one of
overreaching significance to society, the Court, in its
discretion, can brush aside procedural technicalities and take
cognizance of the petition. Considering that the instant
petition involves legal questions that may have serious
implications on public interests, we rule that petitioner has
the requisite legal standing to file this petition.
Respondents likewise urge the dismissal of the petition for
certiorari and prohibition because under Section 1, Rule 65 of
the 1997 Rules of Civil Procedure, these remedies should be
directed to any tribunal, board, officer or person whether
exercising judicial, quasi-judicial, or ministerial functions.
They maintain that in exercising its legally-mandated
franchise to grant authority to certain entities to operate a
gambling or gaming activity, PAGCOR is not performing a
judicial or quasi-judicial act. Neither should the act of
granting licenses or authority to operate be construed as a
purely ministerial act. According to them, in the event that
this Court takes cognizance of the instant petition, the same
should be dismissed for failure of petitioner to observe the
hierarchy of courts.
Practically the same procedural infirmities were raised in Del
Mar v. Philippine Amusement and Gaming Corporation where
an almost identical factual setting obtained. Petitioners
therein filed a petition for injunction directly before the Court
which sought to enjoin respondent from operating the jai-alai
games by itself or in joint venture with another corporate
entity allegedly in violation of law and the Constitution.
Respondents contended that the Court had no jurisdiction to
take original cognizance of a petition for injunction because it
was not one of the actions specifically mentioned in Section 1
of Rule 56 of the 1997 Rules of Civil Procedure. Respondents

likewise took exception to the alleged failure of petitioners to

observe the doctrine on hierarchy of courts. In brushing aside
the apparent procedural lapse, we held that x x x this Court
has the discretionary power to take cognizance of the
petition at bar if compelling reasons, or the nature and
importance of the issues raised, warrant the immediate
exercise of its jurisdiction.[4]
In the case at bar, we are not inclined to rule differently. The
petition at bar seeks to nullify, via a petition for certiorari and
prohibition filed directly before this Court, the Grant of
Authority and Agreement for the Operation of Sports Betting
and Internet Gaming by virtue of which SAGE was vested by
PAGCOR with the authority to operate on-line Internet
gambling. It is well settled that averments in the complaint,
and not the nomenclature given by the parties, determine
the nature of the action.[5] Although the petition alleges grave
abuse of discretion on the part of respondent PAGCOR, what
it primarily seeks to accomplish is to prevent the
enforcement of the Grant of Authority and Agreement for the
Operation of Sports Betting and Internet Gaming. Thus, the
action may properly be characterized as one for Prohibition
under Section 2 of Rule 65, which incidentally, is another
remedy resorted to by petitioner.
Granting arguendo that the present action cannot be
properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this case
warrants that we set aside the technical defects and take
primary jurisdiction over the petition at bar. One cannot deny
that the issues raised herein have potentially pervasive
influence on the social and moral well being of this nation,
specially the youth; hence, their proper and just
determination is an imperative need. This is in accordance
with the well-entrenched principle that rules of procedure are
not inflexible tools designed to hinder or delay, but to
facilitate and promote the administration of justice. Their
strict and rigid application, which would result in
technicalities that tend to frustrate, rather than promote
substantial justice, must always be eschewed. [6]
Having disposed of these procedural issues, we now come to
the substance of the action.
A legislative franchise is a special privilege granted by the
state to corporations. It is a privilege of public concern which

cannot be exercised at will and pleasure, but should be

reserved for public control and administration, either by the
government directly, or by public agents, under such
conditions and regulations as the government may impose
on them in the interest of the public. It is Congress that
prescribes the conditions on which the grant of the franchise
may be made. Thus the manner of granting the franchise, to
whom it may be granted, the mode of conducting the
business, the charter and the quality of the service to be
rendered and the duty of the grantee to the public in
exercising the franchise are almost always defined in clear
and unequivocal language.[7]
After a circumspect consideration of the foregoing discussion
and the contending positions of the parties, we hold that
PAGCOR has acted beyond the limits of its authority when it
passed on or shared its franchise to SAGE.
In the Del Mar case where a similar issue was raised when
PAGCOR entered into a joint venture agreement with two
other entities in the operation and management of jai alai
games, the Court,[8] in an En Banc Resolution dated 24
August 2001, partially granted the motions for clarification
filed by respondents therein insofar as it prayed that PAGCOR
has a valid franchise, but only by itself (i.e. not in association
with any other person or entity), to operate, maintain and/or
manage the game of jai-alai.
In the case at bar, PAGCOR executed an agreement with
SAGE whereby the former grants the latter the authority to
operate and maintain sports betting stations and Internet
gaming operations. In essence, the grant of authority gives
SAGE the privilege to actively participate, partake and share
PAGCORs franchise to operate a gambling activity. The grant
of franchise is a special privilege that constitutes a right and
a duty to be performed by the grantee. The grantee must not
perform its activities arbitrarily and whimsically but must
abide by the limits set by its franchise and strictly adhere to
its terms and conditionalities. A corporation as a creature of
the State is presumed to exist for the common good. Hence,
the special privileges and franchises it receives are subject to
the laws of the State and the limitations of its charter. There
is therefore a reserved right of the State to inquire how these
privileges had been employed, and whether they have been
abused.[9]

While PAGCOR is allowed under its charter to enter into

operators and/or management contracts, it is not allowed
under the same charter to relinquish or share its franchise,
much less grant a veritable franchise to another entity such
as SAGE. PAGCOR can not delegate its power in view of the
legal principle of delegata potestas delegare non potest,
inasmuch as there is nothing in the charter to show that it
has been expressly authorized to do so. In Lim v. Pacquing,
[10]
the Court clarified that since ADC has no franchise from
Congress to operate the jai-alai, it may not so operate even if
it has a license or permit from the City Mayor to operate the
jai-alai in the City of Manila. By the same token, SAGE has to
obtain a separate legislative franchise and not ride on
PAGCORs franchise if it were to legally operate on-line
Internet gambling.
WHEREFORE, in view of all the foregoing, the instant
petition is GRANTED. The Grant of Authority and Agreement
to Operate Sports Betting and Internet Gaming executed by
PAGCOR in favor of SAGE is declared NULL and VOID.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, CarpioMorales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 179267
June 25, 2013
JESUS C. GARCIA, Petitioner,
vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding
Judge, Regional Trial Court-Branch 41, Bacolod City,
and ROSALIE JAYPE-GARCIA, for herself and in behalf
of minor children, namely: JO-ANN, JOSEPH EDUARD,
JESSE ANTHONE, all surnamed GARCIA, Respondents.
DECISION
PERLAS-BERNABE, J.:

Hailed as the bastion of Christianity in Asia, the Philippines

boasts of 86.8 million Filipinos- or 93 percent of a total
population of 93.3 million adhering to the teachings of Jesus
Christ.1 Yet, the admonition for husbands to love their wives
as their own bodies just as Christ loved the church and gave
himself up for her2 failed to prevent, or even to curb, the
pervasiveness of violence against Filipino women. The
National Commission on the Role of Filipino Women (NCRFW)
reported that, for the years 2000-2003, "female violence
comprised more than 90o/o of all forms of abuse and
violence and more than 90% of these reported cases were
committed by the women's intimate partners such as their
husbands and live-in partners."3
Thus, on March 8, 2004, after nine (9) years of spirited
advocacy by women's groups, Congress enacted Republic Act
(R.A.) No. 9262, entitled "An Act Defining Violence Against
Women and Their Children, Providing for Protective Measures
for Victims, Prescribing Penalties Therefor, and for Other
Purposes." It took effect on March 27, 2004.4
R.A. 9262 is a landmark legislation that defines and
criminalizes acts of violence against women and their
children (VAWC) perpetrated by women's intimate partners,
i.e, husband; former husband; or any person who has or had
a sexual or dating relationship, or with whom the woman has
a common child.5 The law provides for protection orders from
the barangay and the courts to prevent the commission of
further acts of VAWC; and outlines the duties and
responsibilities of barangay officials, law enforcers,
prosecutors and court personnel, social workers, health care
providers, and other local government officials in responding
to complaints of VAWC or requests for assistance.
A husband is now before the Court assailing the
constitutionality of R.A. 9262 as being violative of the equal
protection and due process clauses, and an undue delegation
of judicial power to barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent)
filed, for herself and in behalf of her minor children, a verified
petition6 (Civil Case No. 06-797) before the Regional Trial
Court (RTC) of Bacolod City for the issuance of a Temporary
Protection Order (TPO) against her husband, Jesus C. Garcia
(petitioner), pursuant to R.A. 9262. She claimed to be a

victim of physical abuse; emotional, psychological, and

economic violence as a result of marital infidelity on the part
of petitioner, with threats of deprivation of custody of her
children and of financial support. 7
Private respondent's claims
Private respondent married petitioner in 2002 when she was
34 years old and the former was eleven years her senior.
They have three (3) children, namely: Jo-Ann J. Garcia, 17
years old, who is the natural child of petitioner but whom
private respondent adopted; Jessie Anthone J. Garcia, 6 years
old; and Joseph Eduard J. Garcia, 3 years old. 8
Private respondent described herself as a dutiful and faithful
wife, whose life revolved around her husband. On the other
hand, petitioner, who is of Filipino-Chinese descent, is
dominant, controlling, and demands absolute obedience from
his wife and children. He forbade private respondent to pray,
and deliberately isolated her from her friends. When she took
up law, and even when she was already working part time at
a law office, petitioner trivialized her ambitions and prevailed
upon her to just stay at home. He was often jealous of the
fact that his attractive wife still catches the eye of some
men, at one point threatening that he would have any man
eyeing her killed.9
Things turned for the worse when petitioner took up an affair
with a bank manager of Robinson's Bank, Bacolod City, who
is the godmother of one of their sons. Petitioner admitted to
the affair when private respondent confronted him about it in
2004. He even boasted to the household help about his
sexual relations with said bank manager. Petitioner told
private respondent, though, that he was just using the
woman because of their accounts with the bank.10
Petitioner's infidelity spawned a series of fights that left
private respondent physically and emotionally wounded. In
one of their quarrels, petitioner grabbed private respondent
on both arms and shook her with such force that caused
bruises and hematoma. At another time, petitioner hit private
respondent forcefully on the lips that caused some bleeding.
Petitioner sometimes turned his ire on their daughter, Jo-Ann,
who had seen the text messages he sent to his paramour
and whom he blamed for squealing on him. He beat Jo-Ann
on the chest and slapped her many times. When private
respondent decided to leave petitioner, Jo-Ann begged her

mother to stay for fear that if the latter leaves, petitioner

would beat her up. Even the small boys are aware of private
respondent's sufferings. Their 6-year-old son said that when
he grows up, he would beat up his father because of his
cruelty to private respondent.11
All the emotional and psychological turmoil drove private
respondent to the brink of despair. On December 17, 2005,
while at home, she attempted suicide by cutting her wrist.
She was found by her son bleeding on the floor. Petitioner
simply fled the house instead of taking her to the hospital.
Private respondent was hospitalized for about seven (7) days
in which time petitioner never bothered to visit, nor
apologized or showed pity on her. Since then, private
respondent has been undergoing therapy almost every week
and is taking anti-depressant medications.12
When private respondent informed the management of
Robinson's Bank that she intends to file charges against the
bank manager, petitioner got angry with her for jeopardizing
the manager's job. He then packed his things and told private
respondent that he was leaving her for good. He even told
private respondent's mother, who lives with them in the
family home, that private respondent should just accept his
extramarital affair since he is not cohabiting with his
paramour and has not sired a child with her. 13
Private respondent is determined to separate from petitioner
but she is afraid that he would take her children from her and
deprive her of financial support. Petitioner had previously
warned her that if she goes on a legal battle with him, she
would not get a single centavo. 14
Petitioner controls the family businesses involving mostly the
construction of deep wells. He is the President of three
corporations 326 Realty Holdings, Inc., Negros Rotadrill
Corporation, and J-Bros Trading Corporation of which he and
private respondent are both stockholders. In contrast to the
absolute control of petitioner over said corporations, private
respondent merely draws a monthly salary of P20,000.00
from one corporation only, the Negros Rotadrill Corporation.
Household expenses amounting to not less than P200,000.00
a month are paid for by private respondent through the use
of credit cards, which, in turn, are paid by the same
corporation together with the bills for utilities. 15

On the other hand, petitioner receives a monthly salary

of P60,000.00 from Negros Rotadrill Corporation, and enjoys
unlimited cash advances and other benefits in hundreds of
thousands of pesos from the corporations.16After private
respondent confronted him about the affair, petitioner
forbade her to hold office at JBTC Building, Mandalagan,
where all the businesses of the corporations are conducted,
thereby depriving her of access to full information about said
businesses. Until the filing of the petition a quo, petitioner
has not given private respondent an accounting of the
businesses the value of which she had helped raise to
millions of pesos.17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent
danger of violence against the private respondent and her
children exists or is about to recur, the RTC issued a TPO 18 on
March 24, 2006 effective for thirty (30) days, which is quoted
hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the
conjugal dwelling or family home within 24 hours from
receipt of the Temporary Restraining Order and if he refuses,
ordering that he be removed by police officers from the
conjugal dwelling; this order is enforceable notwithstanding
that the house is under the name of 236 Realty Holdings Inc.
(Republic Act No. 9262 states "regardless of ownership"), this
is to allow the Petitioner (private respondent herein) to enter
the conjugal dwelling without any danger from the
Respondent.
After the Respondent leaves or is removed from the conjugal
dwelling, or anytime the Petitioner decides to return to the
conjugal dwelling to remove things, the Petitioner shall be
assisted by police officers when re-entering the family home.
The Chief of Police shall also give the Petitioner police
assistance on Sunday, 26 March 2006 because of the danger
that the Respondent will attempt to take her children from
her when he arrives from Manila and finds out about this suit.
b) To stay away from the petitioner and her children, mother
and all her household help and driver from a distance of
1,000 meters, and shall not enter the gate of the subdivision
where the Petitioner may be temporarily residing.

c) Not to harass, annoy, telephone, contact or otherwise

communicate with the Petitioner, directly or indirectly, or
through other persons, or contact directly or indirectly her
children, mother and household help, nor send gifts, cards,
flowers, letters and the like. Visitation rights to the children
may be subject of a modified TPO in the future.
d) To surrender all his firearms including a .9MM caliber
firearm and a Walther PPK and ordering the Philippine
National Police Firearms and Explosives Unit and the
Provincial Director of the PNP to cancel all the Respondent's
firearm licenses. He should also be ordered to surrender any
unlicensed firearms in his possession or control.
e) To pay full financial support for the Petitioner and the
children, including rental of a house for them, and
educational and medical expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits, bonuses
and other cash he received from all the corporations from 1
January 2006 up to 31 March 2006, which himself and as
President of the corporations and his Comptroller, must
submit to the Court not later than 2 April 2006. Thereafter,
an accounting of all these funds shall be reported to the
court by the Comptroller, copy furnished to the Petitioner,
every 15 days of the month, under pain of Indirect Contempt
of Court.
h) To ensure compliance especially with the order granting
support pendente lite, and considering the financial
resources of the Respondent and his threat that if the
Petitioner sues she will not get a single centavo, the
Respondent is ordered to put up a BOND TO KEEP THE PEACE
in the amount of FIVE MILLION PESOS, in two sufficient
sureties.
On April 24, 2006, upon motion19 of private respondent, the
trial court issued an amended TPO,20 effective for thirty (30)
days, which included the following additional provisions:
i) The petitioners (private respondents herein) are given the
continued use of the Nissan Patrol and the Starex Van which
they are using in Negros Occidental.
j) The petitioners are given the continued use and occupation
of the house in Paraaque, the continued use of the Starex
van in Metro Manila, whenever they go to Manila.

k) Respondent is ordered to immediately post a bond to keep

the peace, in two sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed
in the sum of One Hundred Fifty Thousand Pesos (Php
150,000.00) per month plus rental expenses of Fifty
Thousand Pesos (Php 50,000.00) per month until the matter
of support could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an
Opposition to the Urgent Ex-Parte Motion for Renewal of the
TPO21 seeking the denial of the renewal of the TPO on the
grounds that it did not (1) comply with the three-day notice
rule, and (2) contain a notice of hearing. He further asked
that the TPO be modified by (1) removing one vehicle used
by private respondent and returning the same to its rightful
owner, the J-Bros Trading Corporation, and (2) cancelling or
reducing the amount of the bond from P5,000,000.00 to a
more manageable level at P100,000.00.
Subsequently, on May 23, 2006, petitioner moved 22 for the
modification of the TPO to allow him visitation rights to his
children.
On May 24, 2006, the TPO was renewed and extended yet
again, but subject only to the following modifications prayed
for by private respondent:
a) That respondent (petitioner herein) return the clothes and
other personal belongings of Rosalie and her children to
Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours
from receipt of the Temporary Protection Order by his
counsel, otherwise be declared in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture
and equipment in the conjugal house in Pitimini St.,
Capitolville Subdivision, Bacolod City within 24 hours from
receipt of the Temporary Protection Order by his counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod
City Police Headquarters to remove Respondent from the
conjugal dwelling within eight (8) hours from receipt of the
Temporary Protection Order by his counsel, and that he
cannot return until 48 hours after the petitioners have left, so
that the petitioner Rosalie and her representatives can
remove things from the conjugal home and make an
inventory of the household furniture, equipment and other
things in the conjugal home, which shall be submitted to the
Court.

d) Deliver full financial support of Php200,000.00 and

Php50,000.00 for rental and Php25,000.00 for clothes of the
three petitioners (sic) children within 24 hours from receipt of
the Temporary Protection Order by his counsel, otherwise be
declared in indirect contempt of Court;
e) That respondent surrender his two firearms and all
unlicensed firearms to the Clerk of Court within 24 hours
from receipt of the Temporary Protection Order by his
counsel;
f) That respondent shall pay petitioner educational expenses
of the children upon presentation of proof of payment of such
expenses.23
Claiming that petitioner continued to deprive them of
financial support; failed to faithfully comply with the TPO; and
committed new acts of harassment against her and their
children, private respondent filed another application 24for the
issuance of a TPO ex parte. She alleged inter
alia that petitioner contrived a replevin suit against himself
by J-Bros Trading, Inc., of which the latter was purportedly no
longer president, with the end in view of recovering the
Nissan Patrol and Starex Van used by private respondent and
the children. A writ of replevin was served upon private
respondent by a group of six or seven policemen with long
firearms that scared the two small boys, Jessie Anthone and
Joseph Eduard.25
While Joseph Eduard, then three years old, was driven to
school, two men allegedly attempted to kidnap him, which
incident traumatized the boy resulting in his refusal to go
back to school. On another occasion, petitioner allegedly
grabbed their daughter, Jo-Ann, by the arm and threatened
her.26 The incident was reported to the police, and Jo-Ann
subsequently filed a criminal complaint against her father for
violation of R.A. 7610, also known as the "Special Protection
of Children Against Child Abuse, Exploitation and
Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the
filing by the housemaids working at the conjugal home of a
complaint for kidnapping and illegal detention against private
respondent. This came about after private respondent, armed
with a TPO, went to said home to get her and her children's
belongings. Finding some of her things inside a housemaid's

(Sheryl Jamola) bag in the maids' room, private respondent

filed a case for qualified theft against Jamola. 27
On August 23, 2006, the RTC issued a TPO, 28 effective for
thirty (30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing,
personally or through another, acts of violence against the
offended party;
2) Prohibited from harassing, annoying, telephoning,
contacting or otherwise communicating in any form with the
offended party, either directly or indirectly;
3) Required to stay away, personally or through his friends,
relatives, employees or agents, from all the Petitioners
Rosalie J. Garcia and her children, Rosalie J. Garcia's three
brothers, her mother Primitiva Jaype, cook Novelita Caranzo,
driver Romeo Hontiveros, laundrywoman Mercedita Bornales,
security guard Darwin Gayona and the petitioner's other
household helpers from a distance of 1,000 meters, and shall
not enter the gate of the subdivision where the Petitioners
are temporarily residing, as well as from the schools of the
three children; Furthermore, that respondent shall not
contact the schools of the children directly or indirectly in any
manner including, ostensibly to pay for their tuition or other
fees directly, otherwise he will have access to the children
through the schools and the TPO will be rendered nugatory;
4) Directed to surrender all his firearms including .9MM
caliber firearm and a Walther PPK to the Court;
5) Directed to deliver in full financial support of
Php200,000.00 a month and Php50,000.00 for rental for the
period from August 6 to September 6, 2006; and support in
arrears from March 2006 to August 2006 the total amount of
Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007
the amount of Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with
Plate No. FEW 508 and a Starex van with Plate No. FFD 991
and should the respondent fail to deliver said vehicles,
respondent is ordered to provide the petitioner another
vehicle which is the one taken by J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease or
otherwise dispose of the conjugal assets, or those real
properties in the name of Jesus Chua Garcia only and those in

which the conjugal partnership of gains of the Petitioner

Rosalie J. Garcia and respondent have an interest in,
especially the conjugal home located in No. 14, Pitimini St.,
Capitolville Subdivision, Bacolod City, and other properties
which are conjugal assets or those in which the conjugal
partnership of gains of Petitioner Rosalie J. Garcia and the
respondent have an interest in and listed in Annexes "I," "I1," and "I-2," including properties covered by TCT Nos. T186325 and T-168814;
9) Ordered that the Register of Deeds of Bacolod City and
E.B. Magalona shall be served a copy of this TEMPORARY
PROTECTION ORDER and are ordered not to allow the
transfer, sale, encumbrance or disposition of these abovecited properties to any person, entity or corporation without
the personal presence of petitioner Rosalie J. Garcia, who
shall affix her signature in the presence of the Register of
Deeds, due to the fear of petitioner Rosalie that her signature
will be forged in order to effect the encumbrance or sale of
these properties to defraud her or the conjugal partnership of
gains.
In its Order29 dated September 26, 2006, the trial court
extended the aforequoted TPO for another ten (10) days, and
gave petitioner a period of five (5) days within which to show
cause why the TPO should not be renewed, extended, or
modified. Upon petitioner's manifestation,30 however, that he
has not received a copy of private respondent's motion to
modify/renew the TPO, the trial court directed in its
Order31 dated October 6, 2006 that petitioner be furnished a
copy of said motion. Nonetheless, an Order32 dated a day
earlier, October 5, had already been issued renewing the TPO
dated August 23, 2006. The pertinent portion is quoted
hereunder:
xxxx
x x x it appearing further that the hearing could not yet be
finally terminated, the Temporary Protection Order issued on
August 23, 2006 is hereby renewed and extended for thirty
(30) days and continuously extended and renewed for thirty
(30) days, after each expiration, until further orders, and
subject to such modifications as may be ordered by the
court.
After having received a copy of the foregoing Order,
petitioner no longer submitted the required comment to

private respondent's motion for renewal of the TPO arguing

that it would only be an "exercise in futility." 33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed
before the Court of Appeals (CA) a petition 34 for prohibition
(CA-G.R. CEB-SP. No. 01698), with prayer for injunction and
temporary restraining order, challenging (1) the
constitutionality of R.A. 9262 for being violative of the due
process and the equal protection clauses, and (2) the validity
of the modified TPO issued in the civil case for being "an
unwanted product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day
Temporary Restraining Order36 (TRO) against the enforcement
of the TPO, the amended TPOs and other orders pursuant
thereto.
Subsequently, however, on January 24, 2007, the appellate
court dismissed36 the petition for failure of petitioner to raise
the constitutional issue in his pleadings before the trial court
in the civil case, which is clothed with jurisdiction to resolve
the same. Secondly, the challenge to the validity
of R.A. 9262 through a petition for prohibition seeking to
annul the protection orders issued by the trial court
constituted a collateral attack on said law.
His motion for reconsideration of the foregoing Decision
having been denied in the Resolution 37 dated August 14,
2007, petitioner is now before us alleging that
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION
ON THE THEORY THAT THE ISSUE OF CONSTITUTIONALITY
WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND THAT,
THE PETITION CONSTITUTES A COLLATERAL ATTACK ON THE
VALIDITY OF THE LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN
FAILING TO CONCLUDE THAT R.A. 9262 IS DISCRIMINATORY,
UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE.
III.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT
FINDING THAT R.A. 9262 RUNS COUNTER TO THE DUE
PROCESS CLAUSE OF THE CONSTITUTION.

IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE
LAW DOES VIOLENCE TO THE POLICY OF THE STATE TO
PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
DECLARING R.A. No. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE
DELEGATION OF JUDICIAL POWER TO THE BARANGAY
OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by petitioner
against the constitutionality of R.A. 9262, we shall first tackle
the propriety of the dismissal by the appellate court of the
petition for prohibition (CA-G.R. CEB-SP. No. 01698) filed by
petitioner.
As a general rule, the question of constitutionality must be
raised at the earliest opportunity so that if not raised in the
pleadings, ordinarily it may not be raised in the trial, and if
not raised in the trial court, it will not be considered on
appeal.39 Courts will not anticipate a question of
constitutional law in advance of the necessity of deciding it. 40
In defending his failure to attack the constitutionality of R.A.
9262 before the RTC of Bacolod City, petitioner argues that
the Family Court has limited authority and jurisdiction that is
"inadequate to tackle the complex issue of
constitutionality."41
We disagree.
Family Courts have authority and jurisdiction to consider the
constitutionality of a statute.
At the outset, it must be stressed that Family Courts are
special courts, of the same level as Regional Trial Courts.
Under R.A. 8369, otherwise known as the "Family Courts Act
of 1997," family courts have exclusive original jurisdiction to
hear and decide cases of domestic violence against women
and children.42 In accordance with said law, the Supreme
Court designated from among the branches of the Regional
Trial Courts at least one Family Court in each of several key
cities identified.43 To achieve harmony with the first
mentioned law, Section 7 of R.A. 9262 now provides that
Regional Trial Courts designated as Family Courts shall have

original and exclusive jurisdiction over cases of VAWC defined

under the latter law, viz:
SEC. 7. Venue. The Regional Trial Court designated as a
Family Court shall have original and exclusive jurisdiction
over cases of violence against women and their children
under this law. In the absence of such court in the place
where the offense was committed, the case shall be filed in
the Regional Trial Court where the crime or any of its
elements was committed at the option of the complainant.
(Emphasis supplied)
Inspite of its designation as a family court, the RTC of Bacolod
City remains possessed of authority as a court of general
original jurisdiction to pass upon all kinds of cases whether
civil, criminal, special proceedings, land registration,
guardianship, naturalization, admiralty or insolvency. 44 It is
settled that RTCs have jurisdiction to resolve the
constitutionality of a statute,45 "this authority being
embraced in the general definition of the judicial power to
determine what are the valid and binding laws by the
criterion of their conformity to the fundamental law." 46 The
Constitution vests the power of judicial review or the power
to declare the constitutionality or validity of a law, treaty,
international or executive agreement, presidential decree,
order, instruction, ordinance, or regulation not only in this
Court, but in all RTCs.47 We said in J.M. Tuason and Co., Inc. v.
CA48 that, "plainly the Constitution contemplates that the
inferior courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of
appellate review of final judgments of inferior courts in cases
where such constitutionality happens to be in issue." Section
5, Article VIII of the 1987 Constitution reads in part as
follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
xxxx

Thus, contrary to the posturing of petitioner, the issue of

constitutionality of R.A. 9262 could have been raised at the
earliest opportunity in his Opposition to the petition for
protection order before the RTC of Bacolod City, which had
jurisdiction to determine the same, subject to the review of
this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence
Against Women and Their Children, lays down a new kind of
procedure requiring the respondent to file an opposition to
the petition and not an answer. 49 Thus:
SEC. 20. Opposition to petition. (a) The respondent may file
an opposition to the petition which he himself shall verify. It
must be accompanied by the affidavits of witnesses and shall
show cause why a temporary or permanent protection order
should not be issued.
(b) Respondent shall not include in the opposition any
counterclaim, cross-claim or third-party complaint, but any
cause of action which could be the subject thereof may be
litigated in a separate civil action. (Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner
that, since a counterclaim, cross-claim and third-party
complaint are to be excluded from the opposition, the issue
of constitutionality cannot likewise be raised therein. A
counterclaim is defined as any claim for money or other relief
which a defending party may have against an opposing
party.50 A cross-claim, on the other hand, is any claim by one
party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original
action or of a counterclaim therein.51Finally, a third-party
complaint is a claim that a defending party may, with leave
of court, file against a person not a party to the action for
contribution, indemnity, subrogation or any other relief, in
respect of his opponent's claim. 52 As pointed out by Justice
Teresita J. Leonardo-De Castro, the unconstitutionality of a
statute is not a cause of action that could be the subject of a
counterclaim, cross-claim or a third-party complaint.
Therefore, it is not prohibited from being raised in the
opposition in view of the familiar maxim expressio unius est
exclusio alterius.
Moreover, it cannot be denied that this issue affects the
resolution of the case a quo because the right of private
respondent to a protection order is founded solely on the

very statute the validity of which is being attacked 53 by

petitioner who has sustained, or will sustain, direct injury as a
result of its enforcement. The alleged unconstitutionality of
R.A. 9262 is, for all intents and purposes, a valid cause for
the non-issuance of a protection order.
That the proceedings in Civil Case No. 06-797 are summary
in nature should not have deterred petitioner from raising the
same in his Opposition. The question relative to the
constitutionality of a statute is one of law which does not
need to be supported by evidence.54 Be that as it may,
Section 25 of A.M. No. 04-10-11-SC nonetheless allows the
conduct of a hearing to determine legal issues, among
others, viz:
SEC. 25. Order for further hearing. - In case the court
determines the need for further hearing, it may issue an
order containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have
been marked and will be presented;
(d) Names of witnesses who will be ordered to present their
direct testimonies in the form of affidavits; and
(e) Schedule of the presentation of evidence by both parties
which shall be done in one day, to the extent possible, within
the 30-day period of the effectivity of the temporary
protection order issued. (Emphasis supplied)
To obviate potential dangers that may arise concomitant to
the conduct of a hearing when necessary, Section 26 (b) of
A.M. No. 04-10-11-SC provides that if a temporary protection
order issued is due to expire, the trial court may extend or
renew the said order for a period of thirty (30) days each
time until final judgment is rendered. It may likewise modify
the extended or renewed temporary protection order as may
be necessary to meet the needs of the parties. With the
private respondent given ample protection, petitioner could
proceed to litigate the constitutional issues, without
necessarily running afoul of the very purpose for the
adoption of the rules on summary procedure.
In view of all the foregoing, the appellate court correctly
dismissed the petition for prohibition with prayer for
injunction and temporary restraining order (CA-G.R. CEB - SP.
No. 01698). Petitioner may have proceeded upon an honest

belief that if he finds succor in a superior court, he could be

granted an injunctive relief. However, Section 22(j) of A.M.
No. 04-10-11-SC expressly disallows the filing of a petition for
certiorari, mandamus or prohibition against any interlocutory
order issued by the trial court. Hence, the 60-day TRO issued
by the appellate court in this case against the enforcement of
the TPO, the amended TPOs and other orders pursuant
thereto was improper, and it effectively hindered the case
from taking its normal course in an expeditious and summary
manner.
As the rules stand, a review of the case by appeal or
certiorari before judgment is prohibited. Moreover, if the
appeal of a judgment granting permanent protection shall
not stay its enforcement,55 with more reason that a TPO,
which is valid only for thirty (30) days at a time, 56 should not
be enjoined.
The mere fact that a statute is alleged to be unconstitutional
or invalid, does not of itself entitle a litigant to have the same
enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the
United States declared, thus:
Federal injunctions against state criminal statutes, either in
their entirety or with respect to their separate and distinct
prohibitions, are not to be granted as a matter of course,
even if such statutes are unconstitutional. No citizen or
member of the community is immune from prosecution, in
good faith, for his alleged criminal acts. The imminence of
such a prosecution even though alleged to be unauthorized
and, hence, unlawful is not alone ground for relief in equity
which exerts its extraordinary powers only to prevent
irreparable injury to the plaintiff who seeks its aid. (Citations
omitted)
The sole objective of injunctions is to preserve the status quo
until the trial court hears fully the merits of the case. It bears
stressing, however, that protection orders are granted ex
parte so as to protect women and their children from acts of
violence. To issue an injunction against such orders will
defeat the very purpose of the law against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk
from our obligation to determine novel issues, or issues of
first impression, with far-reaching implications. We have, time
and again, discharged our solemn duty as final arbiter of
constitutional issues, and with more reason now, in view of

private respondent's plea in her Comment 59 to the instant

Petition that we should put the challenge to the
constitutionality of R.A. 9262 to rest. And so we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent
and criminalize spousal and child abuse, which could very
well be committed by either the husband or the wife, gender
alone is not enough basis to deprive the husband/father of
the remedies under the law.60
A perusal of the deliberations of Congress on Senate Bill No.
2723,61 which became R.A. 9262, reveals that while the
sponsor, Senator Luisa Pimentel-Ejercito (better known as
Senator Loi Estrada), had originally proposed what she called
a "synthesized measure"62 an amalgamation of two
measures, namely, the "Anti-Domestic Violence Act" and the
"Anti-Abuse of Women in Intimate Relationships Act" 63
providing protection to "all family members, leaving no one
in isolation" but at the same time giving special attention to
women as the "usual victims" of violence and
abuse,64 nonetheless, it was eventually agreed that men be
denied protection under the same measure. We quote
pertinent portions of the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr.
President. Some women's groups have expressed concerns
and relayed these concerns to me that if we are to include
domestic violence apart from against women as well as other
members of the household, including children or the
husband, they fear that this would weaken the efforts to
address domestic violence of which the main victims or the
bulk of the victims really are the wives, the spouses or the
female partners in a relationship. We would like to place that
on record. How does the good Senator respond to this kind of
observation?
Senator Estrada. Yes, Mr. President, there is this group of
women who call themselves "WIIR" Women in Intimate
Relationship. They do not want to include men in this
domestic violence. But plenty of men are also being abused
by women. I am playing safe so I placed here members of the
family, prescribing penalties therefor and providing
protective measures for victims. This includes the men,

children, live-in, common-law wives, and those related with

the family.65
xxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the
discussion whether to limit this to women and not to families
which was the issue of the AWIR group. The understanding
that I have is that we would be having a broader scope rather
than just women, if I remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator
Pangilinan during the interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of
the measure. Do not get me wrong. However, I believe that
there is a need to protect women's rights especially in the
domestic environment.
As I said earlier, there are nameless, countless, voiceless
women who have not had the opportunity to file a case
against their spouses, their live-in partners after years, if not
decade, of battery and abuse. If we broaden the scope to
include even the men, assuming they can at all be abused by
the women or their spouses, then it would not equalize the
already difficult situation for women, Mr. President.
I think that the sponsor, based on our earlier conversations,
concurs with this position. I am sure that the men in this
Chamber who love their women in their lives so dearly will
agree with this representation. Whether we like it or not, it is
an unequal world. Whether we like it or not, no matter how
empowered the women are, we are not given equal
opportunities especially in the domestic environment where
the macho Filipino man would always feel that he is stronger,
more superior to the Filipino woman.
xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the
committee came up with this bill because the family
members have been included in this proposed measure since
the other members of the family other than women are also
possible victims of violence. While women are most likely the

intended victims, one reason incidentally why the measure

focuses on women, the fact remains that in some relatively
few cases, men also stand to be victimized and that children
are almost always the helpless victims of violence. I am
worried that there may not be enough protection extended to
other family members particularly children who are excluded.
Although Republic Act No. 7610, for instance, more or less,
addresses the special needs of abused children. The same
law is inadequate. Protection orders for one are not available
in said law.
I am aware that some groups are apprehensive about
granting the same protection to men, fearing that they may
use this law to justify their abusive behavior against women.
However, we should also recognize that there are established
procedures and standards in our courts which give credence
to evidentiary support and cannot just arbitrarily and
whimsically entertain baseless complaints.
Mr. President, this measure is intended to harmonize family
relations and to protect the family as the basic social
institution. Though I recognize the unequal power relations
between men and women in our society, I believe we have an
obligation to uphold inherent rights and dignity of both
husband and wife and their immediate family members,
particularly children.
While I prefer to focus mainly on women, I was compelled to
include other family members as a critical input arrived at
after a series of consultations/meetings with various NGOs,
experts, sports groups and other affected sectors, Mr.
President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the
other senators.
Senator Sotto. Yes, with the permission of the two ladies on
the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is
recognized.
Senator Sotto. I presume that the effect of the proposed
amendment of Senator Legarda would be removing the "men
and children" in this particular bill and focus specifically on
women alone. That will be the net effect of that proposed
amendment. Hearing the rationale mentioned by the
distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am

not sure now whether she is inclined to accept the proposed

amendment of Senator Legarda.
I am willing to wait whether she is accepting this or not
because if she is going to accept this, I will propose an
amendment to the amendment rather than object to the
amendment, Mr. President.
xxxx
Senator Estrada. The amendment is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to the
amendment.
The President Pro Tempore. Before we act on the
amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the
rationale used by the distinguished proponent of the
amendment. As a matter of fact, I tend to agree. Kung may
maaabuso, mas malamang iyong babae kaysa sa lalake. At
saka iyong mga lalake, puwede na talagang magulpi iyan.
Okey lang iyan. But I cannot agree that we remove the
children from this particular measure.
So, if I may propose an amendment
The President Pro Tempore. To the amendment.
Senator Sotto. more than the women, the children are very
much abused. As a matter of fact, it is not limited to minors.
The abuse is not limited to seven, six, 5-year-old children. I
have seen 14, 15-year-old children being abused by their
fathers, even by their mothers. And it breaks my heart to find
out about these things.
Because of the inadequate existing law on abuse of children,
this particular measure will update that. It will enhance and
hopefully prevent the abuse of children and not only women.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we
remove the aspect of the men in the bill but not the children.
Senator Legarda. I agree, Mr. President, with the Minority
Leader.
The President Pro Tempore. Effectively then, it will be women
AND CHILDREN.
Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence]
There being none, the amendment, as amended, is
approved.66
It is settled that courts are not concerned with the wisdom,
justice, policy, or expediency of a statute.67 Hence, we dare
not venture into the real motivations and wisdom of the
members of Congress in limiting the protection against
violence and abuse under R.A. 9262 to women and children
only. No proper challenge on said grounds may be
entertained in this proceeding. Congress has made its choice
and it is not our prerogative to supplant this judgment. The
choice may be perceived as erroneous but even then, the
remedy against it is to seek its amendment or repeal by the
legislative. By the principle of separation of powers, it is the
legislative that determines the necessity, adequacy, wisdom
and expediency of any law.68 We only step in when there is a
violation of the Constitution. However, none was sufficiently
shown in this case.
R.A. 9262 does not violate the guaranty of equal protection of
the laws.
Equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. The oft-repeated
disquisition in the early case of Victoriano v. Elizalde Rope
Workers' Union69 is instructive:
The guaranty of equal protection of the laws is not a
guaranty of equality in the application of the laws upon all
citizens of the state. It is not, therefore, a requirement, in
order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely
as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which
are different in fact be treated in law as though they were the
same. The equal protection clause does not forbid
discrimination as to things that are different. It does not
prohibit legislation which is limited either in the object to
which it is directed or by the territory within which it is to
operate.

The equal protection of the laws clause of the Constitution

allows classification. Classification in law, as in the other
departments of knowledge or practice, is the grouping of
things in speculation or practice because they agree with one
another in certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is that of
inequality, so that it goes without saying that the mere fact
of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is
that it be reasonable, which means that the classification
should be based on substantial distinctions which make for
real differences; that it must be germane to the purpose of
the law; that it must not be limited to existing conditions
only; and that it must apply equally to each member of the
class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary.
(Emphasis supplied)
Measured against the foregoing jurisprudential yardstick, we
find that R.A. 9262 is based on a valid classification as shall
hereinafter be discussed and, as such, did not violate the
equal protection clause by favoring women over men as
victims of violence and abuse to whom the State extends its
protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men;
the fact that women are more likely than men to be victims
of violence; and the widespread gender bias and prejudice
against women all make for real differences justifying the
classification under the law. As Justice McIntyre succinctly
states, "the accommodation of differences ... is the essence
of true equality."70
A. Unequal power relationship between men and women
According to the Philippine Commission on Women (the
National Machinery for Gender Equality and Women's
Empowerment), violence against women (VAW) is deemed to
be closely linked with the unequal power relationship
between women and men otherwise known as "gender-based
violence". Societal norms and traditions dictate people to
think men are the leaders, pursuers, providers, and take on
dominant roles in society while women are nurturers, men's
companions and supporters, and take on subordinate roles in

society. This perception leads to men gaining more power

over women. With power comes the need to control to retain
that power. And VAW is a form of men's expression of
controlling women to retain power.71
The United Nations, which has long recognized VAW as a
human rights issue, passed its Resolution 48/104 on the
Declaration on Elimination of Violence Against Women on
December 20, 1993 stating that "violence against women is a
manifestation of historically unequal power relations between
men and women, which have led to domination over and
discrimination against women by men and to the prevention
of the full advancement of women, and that violence against
women is one of the crucial social mechanisms by which
women are forced into subordinate positions, compared with
men."72
Then Chief Justice Reynato S. Puno traced the historical and
social context of gender-based violence and developments in
advocacies to eradicate VAW, in his remarks delivered during
the Joint Launching of R.A. 9262 and its Implementing Rules
last October 27, 2004, the pertinent portions of which are
quoted hereunder:
History reveals that most societies sanctioned the use of
violence against women. The patriarch of a family was
accorded the right to use force on members of the family
under his control. I quote the early studies:
Traditions subordinating women have a long history rooted in
patriarchy the institutional rule of men. Women were seen
in virtually all societies to be naturally inferior both physically
and intellectually. In ancient Western societies, women
whether slave, concubine or wife, were under the authority of
men. In law, they were treated as property.
The Roman concept of patria potestas allowed the husband
to beat, or even kill, his wife if she endangered his property
right over her. Judaism, Christianity and other religions
oriented towards the patriarchal family strengthened the
male dominated structure of society.
English feudal law reinforced the tradition of male control
over women. Even the eminent Blackstone has been quoted
in his commentaries as saying husband and wife were one
and that one was the husband. However, in the late 1500s
and through the entire 1600s, English common law began to
limit the right of husbands to chastise their wives. Thus,

common law developed the rule of thumb, which allowed

husbands to beat their wives with a rod or stick no thicker
than their thumb.
In the later part of the 19th century, legal recognition of
these rights to chastise wives or inflict corporeal punishment
ceased. Even then, the preservation of the family was given
more importance than preventing violence to women.
The metamorphosis of the law on violence in the United
States followed that of the English common law. In 1871, the
Supreme Court of Alabama became the first appellate court
to strike down the common law right of a husband to beat his
wife:
The privilege, ancient though it may be, to beat one's wife
with a stick, to pull her hair, choke her, spit in her face or kick
her about the floor, or to inflict upon her like indignities, is
not now acknowledged by our law... In person, the wife is
entitled to the same protection of the law that the husband
can invoke for himself.
As time marched on, the women's advocacy movement
became more organized. The temperance leagues initiated it.
These leagues had a simple focus. They considered the evils
of alcoholism as the root cause of wife abuse. Hence, they
demonstrated and picketed saloons, bars and their husbands'
other watering holes. Soon, however, their crusade was
joined by suffragette movements, expanding the liberation
movement's agenda. They fought for women's right to vote,
to own property, and more. Since then, the feminist
movement was on the roll.
The feminist movement exposed the private invisibility of the
domestic violence to the public gaze. They succeeded in
transforming the issue into an important public concern. No
less than the United States Supreme Court, in 1992 case
Planned Parenthood v. Casey, noted:
In an average 12-month period in this country, approximately
two million women are the victims of severe assaults by their
male partners. In a 1985 survey, women reported that nearly
one of every eight husbands had assaulted their wives during
the past year. The [American Medical Association] views
these figures as "marked underestimates," because the
nature of these incidents discourages women from reporting
them, and because surveys typically exclude the very poor,
those who do not speak English well, and women who are

homeless or in institutions or hospitals when the survey is

14, Article II of our 1987 Constitution mandates the State to
conducted. According to the AMA, "researchers on family
recognize the role of women in nation building and to ensure
violence agree that the true incidence of partner violence is
the fundamental equality before the law of women and men.
probably double the above estimates; or four million severely
Our Senate has ratified the CEDAW as well as the Convention
assaulted women per year."
on the Rights of the Child and its two protocols. To cap it all,
Studies on prevalence suggest that from one-fifth to oneCongress, on March 8, 2004, enacted Rep. Act No. 9262,
third of all women will be physically assaulted by a partner or
entitled "An Act Defining Violence Against Women and Their
ex-partner during their lifetime... Thus on an average day in
Children, Providing for Protective Measures for Victims,
the United States, nearly 11,000 women are severely
Prescribing Penalties therefor and for other Purposes."
assaulted by their male partners. Many of these incidents
(Citations omitted)
involve sexual assault... In families where wife beating takes
B. Women are the "usual" and "most likely"
place, moreover, child abuse is often present as well.
victims of violence.
Other studies fill in the rest of this troubling picture. Physical
At the time of the presentation of Senate Bill No. 2723,
violence is only the most visible form of abuse. Psychological
official statistics on violence against women and children
abuse, particularly forced social and economic isolation of
show that
women, is also common.
x x x physical injuries had the highest number of cases at
Many victims of domestic violence remain with their abusers,
5,058 in 2002 representing 55.63% of total cases reported
perhaps because they perceive no superior
(9,903). And for the first semester of 2003, there were 2,381
alternative...Many abused women who find temporary refuge
reported cases out of 4,354 cases which represent 54.31%.
in shelters return to their husbands, in large part because
xxx (T)he total number of women in especially difficult
they have no other source of income... Returning to one's
circumstances served by the Department of Social Welfare
abuser can be dangerous. Recent Federal Bureau of
and Development (DSWD) for the year 2002, there are 1,417
Investigation statistics disclose that 8.8 percent of all
physically abused/maltreated cases out of the total of 5,608
homicide victims in the United States are killed by their
cases. xxx (T)here are 1,091 DSWD cases out of a total
spouses...Thirty percent of female homicide victims are killed
number of 3,471 cases for the first semester of 2003. Female
by their male partners.
violence comprised more than 90% of all forms of abuse and
Finally in 1994, the United States Congress enacted the
violence and more than 90% of these reported cases were
Violence Against Women Act.
committed by the women's intimate partners such as their
In the International front, the women's struggle for equality
husbands and live-in partners. 73
was no less successful. The United States Charter and the
Recently, the Philippine Commission on Women presented
Universal Declaration of Human Rights affirmed the equality
comparative statistics on violence against women across an
of all human beings. In 1979, the UN General Assembly
eight-year period from 2004 to August of 2011 with violations
adopted the landmark Convention on the Elimination of all
under R.A. 9262 ranking first among the different VAW
Forms of Discrimination Against Women (CEDAW). In 1993,
categories since its implementation in 2004,74 thus:
the UN General Assembly also adopted the Declaration on
Table 1. Annual Comparative Statistics on Violence Against
the Elimination of Violence Against Women. World
Women, 2004 - 2011*
conferences on the role and rights of women have been
Reported
200
200
200
200
200
200
201
regularly held in Mexico City, Copenhagen, Nairobi and
Cases
4
5
6
7
8
9
0
Beijing. The UN itself established a Commission on the Status
of Women.
The Philippines has been in cadence with the half and full
steps of all these women's movements. No less than Section

2011

1,04 Abduction
832
2
/Kidnappin
g 29

Rape

997

927

659

837

811

770

ncestuou
Rape

38

46

26

22

28

27

Attempted
Rape

194

148

185

147

204

167

268

Acts of
ascivious
ness

580

536

382

358

445

485

745

hysical
njuries

3,5
53

2,3
35

1,8
92

1,5
05

1,3
07

1,4
98

2,01
8

Sexual
Harassme
nt

53

37

38

46

18

54

83

RA 9262

218

924

1,2
69

2,3
87

3,5
99

5,2
85

9,97
4

Threats

319

223

199

182

220

208

374

Seduction

62

19

29

30

19

19

25

Concubina
ge

121

102

93

109

109

99

158

RA 9208

17

11

16

24

34

152

190

19

23
Unjust
Vexation
201
Total

16

34

23

28

18

25

22

90

50

59

59

83

703

183

155

6,2
71

5,3
74

4,8
81

5,7
29

6,9
05

9,4
85

15,1
04

12,9
48

*2011 report covers only from January to August

625 Source: Philippine National Police Women and Children
Protection Center (WCPC)
On the other hand, no reliable estimates may be obtained on
domestic abuse and violence against men in the Philippines
1,58because incidents thereof are relatively low and, perhaps,
8 because many men will not even attempt to report the
situation. In the United Kingdom, 32% of women who had
ever experienced domestic violence did so four or five (or
63 more) times, compared with 11% of the smaller number of
men who had ever experienced domestic violence; and
women constituted 89% of all those who had experienced 4
or more incidents of domestic violence.75 Statistics in Canada
9,02show that spousal violence by a woman against a man is less
1 likely to cause injury than the other way around (18 percent
versus 44 percent). Men, who experience violence from their
spouses are much less likely to live in fear of violence at the
213 hands of their spouses, and much less likely to experience
sexual assault. In fact, many cases of physical violence by a
woman against a spouse are in self-defense or the result of
15 many years of physical or emotional abuse.76
While there are, indeed, relatively few cases of violence and
abuse perpetrated against men in the Philippines, the same
128 cannot render R.A. 9262 invalid.
In a 1960 case involving the violation of a city ordinance
requiring drivers of animal-drawn vehicles to pick up, gather
62 and deposit in receptacles the manure emitted or discharged
by their vehicle-drawing animals in any public highways,
streets, plazas, parks or alleys, said ordinance was

challenged as violative of the guaranty of equal protection of

laws as its application is limited to owners and drivers of
vehicle-drawing animals and not to those animals, although
not utilized, but similarly pass through the same streets.
The ordinance was upheld as a valid classification for the
reason that, while there may be non-vehicle-drawing animals
that also traverse the city roads, "but their number must be
negligible and their appearance therein merely occasional,
compared to the rig-drawing ones, as not to constitute a
menace to the health of the community." 77 The mere fact that
the legislative classification may result in actual inequality is
not violative of the right to equal protection, for every
classification of persons or things for regulation by law
produces inequality in some degree, but the law is not
thereby rendered invalid.78
C. Gender bias and prejudices
From the initial report to the police through prosecution, trial,
and sentencing, crimes against women are often treated
differently and less seriously than other crimes. This was
argued by then United States Senator Joseph R. Biden, Jr.,
now Vice President, chief sponsor of the Violence Against
Women Act (VAWA), in defending the civil rights remedy as a
valid exercise of the U.S. Congress' authority under the
Commerce and Equal Protection Clauses. He stressed that
the widespread gender bias in the U.S. has institutionalized
historic prejudices against victims of rape or domestic
violence, subjecting them to "double victimization" first at
the hands of the offender and then of the legal system. 79
Our own Senator Loi Estrada lamented in her Sponsorship
Speech for Senate Bill No. 2723 that "(w)henever violence
occurs in the family, the police treat it as a private matter
and advise the parties to settle the conflict themselves. Once
the complainant brings the case to the prosecutor, the latter
is hesitant to file the complaint for fear that it might later be
withdrawn. This lack of response or reluctance to be involved
by the police and prosecution reinforces the escalating,
recurring and often serious nature of domestic violence." 80
Sadly, our own courts, as well, have exhibited prejudices and
biases against our women.
In a recent case resolved on March 9, 2011, we fined RTC
Judge Venancio J. Amila for Conduct Unbecoming of a Judge.
He used derogatory and irreverent language in reference to

the complainant in a petition for TPO and PPO under R.A.

9262, calling her as "only a live-in partner" and presenting
her as an "opportunist" and a "mistress" in an "illegitimate
relationship." Judge Amila even called her a "prostitute," and
accused her of being motivated by "insatiable greed" and of
absconding with the contested property. 81 Such remarks
betrayed Judge Amila's prejudices and lack of gender
sensitivity.
The enactment of R.A. 9262 aims to address the
discrimination brought about by biases and prejudices
against women. As emphasized by the CEDAW Committee on
the Elimination of Discrimination against Women, addressing
or correcting discrimination through specific measures
focused on women does not discriminate against
men.82 Petitioner's contention,83 therefore, that R.A. 9262 is
discriminatory and that it is an "anti-male," "husbandbashing," and "hate-men" law deserves scant consideration.
As a State Party to the CEDAW, the Philippines bound itself to
take all appropriate measures "to modify the social and
cultural patterns of conduct of men and women, with a view
to achieving the elimination of prejudices and customary and
all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women."84 Justice Puno
correctly pointed out that "(t)he paradigm shift changing the
character of domestic violence from a private affair to a
public offense will require the development of a distinct
mindset on the part of the police, the prosecution and the
judges."85
II. The classification is germane to the purpose of the law.
The distinction between men and women is germane to the
purpose of R.A. 9262, which is to address violence committed
against women and children, spelled out in its Declaration of
Policy, as follows:
SEC. 2. Declaration of Policy. It is hereby declared that the
State values the dignity of women and children and
guarantees full respect for human rights. The State also
recognizes the need to protect the family and its members
particularly women and children, from violence and threats to
their personal safety and security.
Towards this end, the State shall exert efforts to address
violence committed against women and children in keeping

with the fundamental freedoms guaranteed under the

Constitution and the provisions of the Universal Declaration
of Human Rights, the Convention on the Elimination of All
Forms of Discrimination Against Women, Convention on the
Rights of the Child and other international human rights
instruments of which the Philippines is a party.
In 1979, the U.N. General Assembly adopted the CEDAW,
which the Philippines ratified on August 5, 1981.
Subsequently, the Optional Protocol to the CEDAW was also
ratified by the Philippines on October 6, 2003. 86 This
Convention mandates that State parties shall accord to
women equality with men before the law87 and shall take all
appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family
relations on the basis of equality of men and women. 88 The
Philippines likewise ratified the Convention on the Rights of
the Child and its two protocols.89 It is, thus, bound by said
Conventions and their respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the
existing conditions when it was promulgated, but to future
conditions as well, for as long as the safety and security of
women and their children are threatened by violence and
abuse.
R.A. 9262 applies equally to all women and children who
suffer violence and abuse. Section 3 thereof defines VAWC
as:
x x x any act or a series of acts committed by any person
against a woman who is his wife, former wife, or against a
woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or against
her child whether legitimate or illegitimate, within or without
the family abode, which result in or is likely to result in
physical, sexual, psychological harm or suffering, or
economic abuse including threats of such acts, battery,
assault, coercion, harassment or arbitrary deprivation of
liberty. It includes, but is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or
physical harm;

B. "Sexual violence" refers to an act which is sexual in

nature, committed against a woman or her child. It includes,
but is not limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a
woman or her child as a sex object, making demeaning and
sexually suggestive remarks, physically attacking the sexual
parts of the victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the woman or her
child to do indecent acts and/or make films thereof, forcing
the wife and mistress/lover to live in the conjugal home or
sleep together in the same room with the abuser;
b) acts causing or attempting to cause the victim to engage
in any sexual activity by force, threat of force, physical or
other harm or threat of physical or other harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions
causing or likely to cause mental or emotional suffering of
the victim such as but not limited to intimidation,
harassment, stalking, damage to property, public ridicule or
humiliation, repeated verbal abuse and marital infidelity. It
includes causing or allowing the victim to witness the
physical, sexual or psychological abuse of a member of the
family to which the victim belongs, or to witness pornography
in any form or to witness abusive injury to pets or to unlawful
or unwanted deprivation of the right to custody and/or
visitation of common children.
D. "Economic abuse" refers to acts that make or attempt to
make a woman financially dependent which includes, but is
not limited to the following:
1. withdrawal of financial support or preventing the victim
from engaging in any legitimate profession, occupation,
business or activity, except in cases wherein the other
spouse/partner objects on valid, serious and moral grounds
as defined in Article 73 of the Family Code;
2. deprivation or threat of deprivation of financial resources
and the right to the use and enjoyment of the conjugal,
community or property owned in common;
3. destroying household property;
4. controlling the victims' own money or properties or solely
controlling the conjugal money or properties.
It should be stressed that the acts enumerated in the
aforequoted provision are attributable to research that has

exposed the dimensions and dynamics of battery. The acts

described here are also found in the U.N. Declaration on the
Elimination of Violence Against Women.90 Hence, the
argument advanced by petitioner that the definition of what
constitutes abuse removes the difference between violent
action and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and
ambiguous that will confuse petitioner in his defense. The
acts enumerated above are easily understood and provide
adequate contrast between the innocent and the prohibited
acts. They are worded with sufficient definiteness that
persons of ordinary intelligence can understand what
conduct is prohibited, and need not guess at its meaning nor
differ in its application.91 Yet, petitioner insists92 that phrases
like "depriving or threatening to deprive the woman or her
child of a legal right," "solely controlling the conjugal or
common money or properties," "marital infidelity," and
"causing mental or emotional anguish" are so vague that
they make every quarrel a case of spousal abuse. However,
we have stressed that the "vagueness" doctrine merely
requires a reasonable degree of certainty for the statute to
be upheld not absolute precision or mathematical
exactitude, as petitioner seems to suggest. Flexibility, rather
than meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly delineated. An
act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its
provisions.93
There is likewise no merit to the contention that R.A. 9262
singles out the husband or father as the culprit. As defined
above, VAWC may likewise be committed "against a woman
with whom the person has or had a sexual or dating
relationship." Clearly, the use of the gender-neutral word
"person" who has or had a sexual or dating relationship with
the woman encompasses even lesbian relationships.
Moreover, while the law provides that the offender be related
or connected to the victim by marriage, former marriage, or a
sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the Revised
Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses
Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the victim,
were held to be proper respondents in the case filed by the

latter upon the allegation that they and their son (Go-Tan's
husband) had community of design and purpose in
tormenting her by giving her insufficient financial support;
harassing and pressuring her to be ejected from the family
home; and in repeatedly abusing her verbally, emotionally,
mentally and physically.
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in
the issuance of POs, of all protections afforded by the due
process clause of the Constitution. Says he: "On the basis of
unsubstantiated allegations, and practically no opportunity to
respond, the husband is stripped of family, property, guns,
money, children, job, future employment and reputation, all
in a matter of seconds, without an inkling of what
happened."95
A protection order is an order issued to prevent further acts
of violence against women and their children, their family or
household members, and to grant other necessary reliefs. Its
purpose is to safeguard the offended parties from further
harm, minimize any disruption in their daily life and facilitate
the opportunity and ability to regain control of their life. 96
"The scope of reliefs in protection orders is broadened to
ensure that the victim or offended party is afforded all the
remedies necessary to curtail access by a perpetrator to the
victim. This serves to safeguard the victim from greater risk
of violence; to accord the victim and any designated family
or household member safety in the family residence, and to
prevent the perpetrator from committing acts that jeopardize
the employment and support of the victim. It also enables
the court to award temporary custody of minor children to
protect the children from violence, to prevent their abduction
by the perpetrator and to ensure their financial support." 97
The rules require that petitions for protection order be in
writing, signed and verified by the petitioner 98 thereby
undertaking full responsibility, criminal or civil, for every
allegation therein. Since "time is of the essence in cases of
VAWC if further violence is to be prevented," 99 the court is
authorized to issue ex parte a TPO after raffle but before
notice and hearing when the life, limb or property of the
victim is in jeopardy and there is reasonable ground to
believe that the order is necessary to protect the victim from

the immediate and imminent danger of VAWC or to prevent

such violence, which is about to recur. 100
There need not be any fear that the judge may have no
rational basis to issue an ex parte order. The victim is
required not only to verify the allegations in the petition, but
also to attach her witnesses' affidavits to the petition. 101
The grant of a TPO ex parte cannot, therefore, be challenged
as violative of the right to due process. Just like a writ of
preliminary attachment which is issued without notice and
hearing because the time in which the hearing will take could
be enough to enable the defendant to abscond or dispose of
his property,102 in the same way, the victim of VAWC may
already have suffered harrowing experiences in the hands of
her tormentor, and possibly even death, if notice and hearing
were required before such acts could be prevented. It is a
constitutional commonplace that the ordinary requirements
of procedural due process must yield to the necessities of
protecting vital public interests,103 among which is protection
of women and children from violence and threats to their
personal safety and security.
It should be pointed out that when the TPO is issued ex parte,
the court shall likewise order that notice be immediately
given to the respondent directing him to file an opposition
within five (5) days from service. Moreover, the court shall
order that notice, copies of the petition and TPO be served
immediately on the respondent by the court sheriffs. The
TPOs are initially effective for thirty (30) days from service on
the respondent.104
Where no TPO is issued ex parte, the court will nonetheless
order the immediate issuance and service of the notice upon
the respondent requiring him to file an opposition to the
petition within five (5) days from service. The date of the
preliminary conference and hearing on the merits shall
likewise be indicated on the notice.105
The opposition to the petition which the respondent himself
shall verify, must be accompanied by the affidavits of
witnesses and shall show cause why a temporary or
permanent protection order should not be issued. 106
It is clear from the foregoing rules that the respondent of a
petition for protection order should be apprised of the
charges imputed to him and afforded an opportunity to
present his side. Thus, the fear of petitioner of being

"stripped of family, property, guns, money, children, job,

future employment and reputation, all in a matter of seconds,
without an inkling of what happened" is a mere product of an
overactive imagination. The essence of due process is to be
found in the reasonable opportunity to be heard and submit
any evidence one may have in support of one's defense. "To
be heard" does not only mean verbal arguments in court; one
may be heard also through pleadings. Where opportunity to
be heard, either through oral arguments or pleadings, is
accorded, there is no denial of procedural due process. 107
It should be recalled that petitioner filed on April 26, 2006 an
Opposition to the Urgent Ex-Parte Motion for Renewal of the
TPO that was granted only two days earlier on April 24, 2006.
Likewise, on May 23, 2006, petitioner filed a motion for the
modification of the TPO to allow him visitation rights to his
children. Still, the trial court in its Order dated September 26,
2006, gave him five days (5) within which to show cause why
the TPO should not be renewed or extended. Yet, he chose
not to file the required comment arguing that it would just be
an "exercise in futility," conveniently forgetting that the
renewal of the questioned TPO was only for a limited period
(30 days) each time, and that he could prevent the continued
renewal of said order if he can show sufficient cause therefor.
Having failed to do so, petitioner may not now be heard to
complain that he was denied due process of law.
Petitioner next laments that the removal and exclusion of the
respondent in the VAWC case from the residence of the
victim, regardless of ownership of the residence, is virtually a
"blank check" issued to the wife to claim any property as her
conjugal home.108
The wording of the pertinent rule, however, does not by any
stretch of the imagination suggest that this is so. It states:
SEC. 11. Reliefs available to the offended party. -- The
protection order shall include any, some or all of the following
reliefs:
xxxx
(c) Removing and excluding the respondent from the
residence of the offended party, regardless of ownership of
the residence, either temporarily for the purpose of
protecting the offended party, or permanently where no
property rights are violated. If the respondent must remove
personal effects from the residence, the court shall direct a

law enforcement agent to accompany the respondent to the

residence, remain there until the respondent has gathered
his things and escort him from the residence;
xxxx
Indubitably, petitioner may be removed and excluded from
private respondent's residence, regardless of ownership, only
temporarily for the purpose of protecting the latter. Such
removal and exclusion may be permanent only where no
property rights are violated. How then can the private
respondent just claim any property and appropriate it for
herself, as petitioner seems to suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill
arguments, instead of encouraging mediation and
counseling, the law has done violence to the avowed policy
of the State to "protect and strengthen the family as a basic
autonomous social institution."109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall
not refer the case or any issue thereof to a mediator. The
reason behind this provision is well-explained by the
Commentary on Section 311 of the Model Code on Domestic
and Family Violence as follows:110
This section prohibits a court from ordering or referring
parties to mediation in a proceeding for an order for
protection. Mediation is a process by which parties in
equivalent bargaining positions voluntarily reach consensual
agreement about the issue at hand. Violence, however, is not
a subject for compromise. A process which involves parties
mediating the issue of violence implies that the victim is
somehow at fault. In addition, mediation of issues in a
proceeding for an order of protection is problematic because
the petitioner is frequently unable to participate equally with
the person against whom the protection order has been
sought. (Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the
exercise of judicial power which, under the Constitution, is
placed upon the "Supreme Court and such other lower courts
as may be established by law" and, thus, protests the

delegation of power to barangay officials to issue protection

orders.111 The pertinent provision reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue
and How. Barangay Protection Orders (BPOs) refer to the
protection order issued by the Punong Barangay ordering the
perpetrator to desist from committing acts under Section 5
(a) and (b) of this Act.1wphi1 A Punong Barangay who
receives applications for a BPO shall issue the protection
order to the applicant on the date of filing after ex parte
determination of the basis of the application. If the Punong
Barangay is unavailable to act on the application for a BPO,
the application shall be acted upon by any available
Barangay Kagawad. If the BPO is issued by a Barangay
Kagawad, the order must be accompanied by an attestation
by the Barangay Kagawad that the Punong Barangay was
unavailable at the time of the issuance of the BPO. BPOs shall
be effective for fifteen (15) days. Immediately after the
issuance of an ex parte BPO, the Punong Barangay or
Barangay Kagawad shall personally serve a copy of the same
on the respondent, or direct any barangay official to effect its
personal service.
The parties may be accompanied by a non-lawyer advocate
in any proceeding before the Punong Barangay.
Judicial power includes 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 branch or
instrumentality of the Government.112 On the other hand,
executive power "is generally defined as the power to
enforce and administer the laws. It is the power of carrying
the laws into practical operation and enforcing their due
observance."113
As clearly delimited by the aforequoted provision, the BPO
issued by the Punong Barangay or, in his unavailability, by
any available Barangay Kagawad, merely orders the
perpetrator to desist from (a) causing physical harm to the
woman or her child; and (2) threatening to cause the woman
or her child physical harm. Such function of the Punong
Barangay is, thus, purely executive in nature, in pursuance of
his duty under the Local Government Code to "enforce all

laws and ordinances," and to "maintain public order in the

barangay."114
We have held that "(t)he mere fact that an officer is required
by law to inquire into the existence of certain facts and to
apply the law thereto in order to determine what his official
conduct shall be and the fact that these acts may affect
private rights do not constitute an exercise of judicial
powers."115
In the same manner as the public prosecutor ascertains
through a preliminary inquiry or proceeding "whether there is
reasonable ground to believe that an offense has been
committed and the accused is probably guilty thereof," the
Punong Barangay must determine reasonable ground to
believe that an imminent danger of violence against the
woman and her children exists or is about to recur that would
necessitate the issuance of a BPO. The preliminary
investigation conducted by the prosecutor is, concededly, an
executive, not a judicial, function. The same holds true with
the issuance of a BPO.
We need not even belabor the issue raised by petitioner that
since barangay officials and other law enforcement agencies
are required to extend assistance to victims of violence and
abuse, it would be very unlikely that they would remain
objective and impartial, and that the chances of acquittal are
nil. As already stated, assistance by barangay officials and
other law enforcement agencies is consistent with their duty
to enforce the law and to maintain peace and order.
Conclusion
Before a statute or its provisions duly challenged are voided,
an unequivocal breach of, or a clear conflict with the
Constitution, not merely a doubtful or argumentative one,
must be demonstrated in such a manner as to leave no doubt
in the mind of the Court. In other words, the grounds for
nullity must be beyond reasonable doubt.116 In the instant
case, however, no concrete evidence and convincing
arguments were presented by petitioner to warrant a
declaration of the unconstitutionality of R.A. 9262, which is
an act of Congress and signed into law by the highest officer
of the co-equal executive department. As we said in Estrada
v. Sandiganbayan, 117 courts must assume that the legislature
is ever conscious of the borders and edges of its plenary
powers, and passed laws with full knowledge of the facts and

for the purpose of promoting what is right and advancing the

welfare of the majority.
We reiterate here Justice Puno's observation that "the history
of the women's movement against domestic violence shows
that one of its most difficult struggles was the fight against
the violence of law itself. If we keep that in mind, law will not
again be a hindrance to the struggle of women for equality
but will be its fulfillment."118Accordingly, the constitutionality
of R.A. 9262 is, as it should be, sustained.
WHEREFORE, the instant petition for review on certiorari is
hereby DENIED for lack of merit.
SO ORDERED

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 101273 July 3, 1992
CONGRESSMAN ENRIQUE T. GARCIA (Second District of
Bataan), petitioner,
vs.
THE EXECUTIVE SECRETARY, THE COMMISSIONER OF
CUSTOMS, THE NATIONAL ECONOMIC AND
DEVELOPMENT AUTHORITY, THE TARIFF COMMISSION,
THE SECRETARY OF FINANCE, and THE ENERGY
REGULATORY BOARD,respondents.
FELICIANO, J.:

On 27 November 1990, the President issued Executive Order

No. 438 which imposed, in addition to any other duties, taxes
and charges imposed by law on all articles imported into the
Philippines, an additional duty of five percent (5%) ad
valorem. This additional duty was imposed across the board
on all imported articles, including crude oil and other oil
products imported into the Philippines. This additional duty
was subsequently increased from five percent (5%) ad
valorem to nine percent (9%) ad valorem by the
promulgation of Executive Order No. 443, dated 3 January
1991.
On 24 July 1991, the Department of Finance requested the
Tariff Commission to initiate the process required by the Tariff
and Customs Code for the imposition of a specific levy on
crude oil and other petroleum products, covered by HS
Heading Nos. 27.09, 27.10 and 27.11 of Section 104 of the
Tariff and Customs Code as amended. Accordingly, the Tariff
Commission, following the procedure set forth in Section 401
of the Tariff and Customs Code, scheduled a public hearing to
give interested parties an opportunity to be heard and to
present evidence in support of their respective positions.
Meantime, Executive Order No. 475 was issued by the
President, on 15 August 1991 reducing the rate of additional
duty on all imported articles from nine percent (9%) to five
percent (5%) ad valorem, except in the cases of crude oil and
other oil products which continued to be subject to the
additional duty of nine percent (9%) ad valorem.
Upon completion of the public hearings, the Tariff
Commission submitted to the President a "Report on Special
Duty on Crude Oil and Oil Products" dated 16 August 1991,
for consideration and appropriate action. Seven (7) days
later, the President issued Executive Order No. 478, dated 23
August 1991, which levied (in addition to the aforementioned
additional duty of nine percent (9%) ad valorem and all other
existing ad valorem duties) a special duty of P0.95 per liter or
P151.05 per barrel of imported crude oil and P1.00 per liter of
imported oil products.
In the present Petition for Certiorari, Prohibition
and Mandamus, petitioner assails the validity of Executive
Orders Nos. 475 and 478. He argues that Executive Orders
Nos. 475 and 478 are violative of Section 24, Article VI of the
1987 Constitution which provides as follows:

Sec. 24: All appropriation, revenue or tariff bills, bills

authorizing increase of the public debt, bills of local
application, and private bills shall originate exclusively in the
House of Representatives, but the Senate may propose or
concur with amendments.
He contends that since the Constitution vests the authority to
enact revenue bills in Congress, the President may not
assume such power by issuing Executive Orders Nos. 475
and 478 which are in the nature of revenue-generating
measures.
Petitioner further argues that Executive Orders No. 475 and
478 contravene Section 401 of the Tariff and Customs Code,
which Section authorizes the President, according to
petitioner, to increase, reduce or remove tariff duties or to
impose additional duties only when necessary to protect local
industries or products but not for the purpose of raising
additional revenue for the government.
Thus, petitioner questions first the constitutionality and
second the legality of Executive Orders Nos. 475 and 478,
and asks us to restrain the implementation of those
Executive Orders. We will examine these questions in that
order.
Before doing so, however, the Court notes that the recent
promulgation of Executive Order No. 507 did not render the
instant Petition moot and academic. Executive Order No. 517
which is dated 30 April 1992 provides as follows:
Sec. 1. Lifting of the Additional Duty. The additional duty in
the nature of ad valorem imposed on all imported articles
prescribed by the provisions of Executive Order No. 443, as
amended, is hereby lifted; Provided, however, that the
selected articles covered by HS Heading Nos. 27.09 and
27.10 of Section 104 of the Tariff and Customs Code, as
amended, subject of Annex "A" hereof, shall continue to be
subject to the additional duty of nine (9%) percent ad
valorem.
Under the above quoted provision, crude oil and other oil
products continue to be subject to the additional duty of nine
percent (9%) ad valorem under Executive Order No. 475 and
to the special duty of P0.95 per liter of imported crude oil and
P1.00 per liter of imported oil products under Executive Order
No. 478.

Turning first to the question of constitutionality, under

Section 24, Article VI of the Constitution, the enactment of
appropriation, revenue and tariff bills, like all other bills is, of
course, within the province of the Legislative rather than the
Executive Department. It does not follow, however, that
therefore Executive Orders Nos. 475 and 478, assuming they
may be characterized as revenue measures, are prohibited to
the President, that they must be enacted instead by the
Congress of the Philippines. Section 28(2) of Article VI of the
Constitution provides as follows:
(2) The Congress may, by law, authorize the President to
fix within specified limits, and subject to such limitations and
restrictions as it may impose, tariff rates, import and export
quotas, tonage and wharfage dues, and other duties or
imposts within the framework of the national development
program of the Government. (Emphasis supplied)
There is thus explicit constitutional permission 1 to Congress
to authorize the President "subject to such limitations and
restrictions it [Congress] may impose" to fix "within specific
limits" "tariff rates . . . and other duties or imposts . . ."
The relevant congressional statute is the Tariff and Customs
Code of the Philippines, and Sections 104 and 401, the
pertinent provisions thereof. These are the provisions which
the President explicitly invoked in promulgating Executive
Orders Nos. 475 and 478. Section 104 of the Tariff and
Customs Code provides in relevant part:
Sec. 104. All tariff sections, chapters, headings and
subheadings and the rates of import duty under Section 104
of Presidential Decree No. 34 and all subsequent
amendments issued under Executive Orders and Presidential
Decrees are hereby adopted and form part of this Code.
There shall be levied, collected, and paid upon all imported
articles the rates of duty indicated in the Section under this
section except as otherwise specifically provided for in this
Code: Provided, that, the maximum rate shall not exceed one
hundred per cent ad valorem.
The rates of duty herein provided or subsequently
fixed pursuant to Section Four Hundred One of this Code shall
be subject to periodic investigation by the Tariff Commission
and may be revised by the President upon recommendation
of the National Economic and Development Authority.
xxx xxx xxx

(Emphasis supplied)
Section 401 of the same Code needs to be quoted in full:
Sec. 401. Flexible Clause.
a. In the interest of national economy, general welfare and/or
national security, and subject to the limitations herein
prescribed, the President, upon recommendation of the
National Economic and Development Authority (hereinafter
referred to as NEDA), is hereby empowered: (1) to increase,
reduce or remove existing protective rates of import
duty (including any necessary change in classification). The
existing rates may be increased or decreased but in no case
shall the reduced rate of import duty be lower than the basic
rate of ten (10) per cent ad valorem, nor shall the increased
rate of import duty be higher than a maximum of one
hundred (100) per cent ad valorem; (2) to establish import
quota or to ban imports of any commodity, as may be
necessary; and (3) to impose an additional duty on all
imports not exceeding ten (10) per cent ad valorem,
whenever necessary; Provided, That upon periodic
investigations by the Tariff Commission and recommendation
of the NEDA, the President may cause a gradual reduction of
protection levels granted in Section One hundred and four of
this Code, including those subsequently granted pursuant to
this section.
b. Before any recommendation is submitted to the President
by the NEDA pursuant to the provisions of this
section, except in the imposition of an additional duty not
exceeding ten (10) per cent ad valorem, the Commission
shall conduct an investigation in the course of which they
shall hold public hearings wherein interested parties shall be
afforded reasonable opportunity to be present, produce
evidence and to be heard. The Commission shall also hear
the views and recommendations of any government office,
agency or instrumentality concerned. The Commission shall
submit their findings and recommendations to the NEDA
within thirty (30) days after the termination of the public
hearings.
c. The power of the President to increase or decrease rates of
import duty within the limits fixed in subsection "a" shall
include the authority to modify the form of duty. In modifying
the form of duty, the corresponding ad valorem or specific
equivalents of the duty with respect to imports from the

principal competing foreign country for the most recent

representative period shall be used as bases.
d. The Commissioner of Customs shall regularly furnish the
Commission a copy of all customs import entries as filed in
the Bureau of Customs. The Commission or its duly
authorized representatives shall have access to, and the right
to copy all liquidated customs import entries and other
documents appended thereto as finally filed in the
Commission on Audit.
e. The NEDA shall promulgate rules and regulations
necessary to carry out the provisions of this section.
f. Any Order issued by the President pursuant to the
provisions of this section shall take effect thirty (30) days
after promulgation, except in the imposition of additional
duty not exceeding ten (10) per cent ad valorem which shall
take effect at the discretion of the President. (Emphasis
supplied)
Petitioner, however, seeks to avoid the thrust of the
delegated authorizations found in Sections 104 and 401 of
the Tariff and Customs Code, by contending that the
President is authorized to act under the Tariff and Customs
Code only "to protect local industries and products for the
sake of the national economy, general welfare and/or
national security." 2 He goes on to claim that:
E.O. Nos. 478 and 475 having nothing to do whatsoever with
the protection of local industries and products for the sake of
national economy, general welfare and/or national security.
On the contrary, they work in reverse, especially as to crude
oil, an essential product which we do not have to protect,
since we produce only minimal quantities and have to import
the rest of what we need.
These Executive Orders are avowedly solely to enable the
government to raise government finances, contrary to
Sections 24 and 28 (2) of Article VI of the Constitution, as
well as to Section 401 of the Tariff and Customs
Code. 3(Emphasis in the original)
The Court is not persuaded. In the first place, there is nothing
in the language of either Section 104 or of 401 of the Tariff
and Customs Code that suggest such a sharp and absolute
limitation of authority. The entire contention of petitioner is
anchored on just two (2) words, one found in Section 401 (a)
(1): "existing protective rates of import duty," and the second

in the proviso found at the end of Section 401

(a): "protection levels granted in Section 104 of this Code . . .
. " We believe that the words "protective" and ''protection"
are simply not enough to support the very broad and
encompassing limitation which petitioner seeks to rest on
those two (2) words.
In the second place, petitioner's singular theory collides with
a very practical fact of which this Court may take judicial
notice that the Bureau of Customs which administers the
Tariff and Customs Code, is one of the two (2) principal
traditional generators or producers of governmental revenue,
the other being the Bureau of Internal Revenue. (There is a
third agency, non-traditional in character, that generates
lower but still comparable levels of revenue for the
government The Philippine Amusement and Games
Corporation [PAGCOR].)
In the third place, customs duties which are assessed at the
prescribed tariff rates are very much like taxes which are
frequently imposed for both revenue-raising and for
regulatory purposes. 4 Thus, it has been held that "customs
duties" is "the name given to taxes on the importation and
exportation of commodities, the tariff or tax assessed upon
merchandise imported from, or exported to, a foreign
country." 5 The levying of customs duties on imported goods
may have in some measure the effect of protecting local
industries where such local industries actually exist and
are producing comparable goods. Simultaneously, however,
the very same customs duties inevitably have the effect of
producing governmental revenues. Customs duties like
internal revenue taxes are rarely, if ever, designed to achieve
one policy objective only. Most commonly, customs duties,
which constitute taxes in the sense of exactions the proceeds
of which become public funds 6 have either or both the
generation of revenue and the regulation of economic or
social activity as their moving purposes and frequently, it is
very difficult to say which, in a particular instance, is the
dominant or principal objective. In the instant case, since the
Philippines in fact produces ten (10) to fifteen percent (15%)
of the crude oil consumed here, the imposition of increased
tariff rates and a special duty on imported crude oil and
imported oil products may be seen to have some "protective"
impact upon indigenous oil production. For the effective,

price of imported crude oil and oil products is increased. At

the same time, it cannot be gainsaid that substantial
revenues for the government are raised by the imposition of
such increased tariff rates or special duty.
In the fourth place, petitioner's concept which he urges us to
build into our constitutional and customs law, is a stiflingly
narrow one. Section 401 of the Tariff and Customs Code
establishes general standards with which the exercise of the
authority delegated by that provision to the President must
be consistent: that authority must be exercised in "the
interest of national economy, general welfare and/or national
security." Petitioner, however, insists that the "protection of
local industries" is theonly permissible objective that can be
secured by the exercise of that delegated authority, and that
therefore "protection of local industries" is the sum total or
the alpha and the omega of "the national economy, general
welfare and/or national security." We find it extremely difficult
to take seriously such a confined and closed view of the
legislative standards and policies summed up in Section 401.
We believe, for instance, that the protection of consumers,
who after all constitute the very great bulk of our population,
is at the very least as important a dimension of "the national
economy, general welfare and national security" as the
protection of local industries. And so customs duties may be
reduced or even removed precisely for the purpose of
protecting consumers from the high prices and shoddy
quality and inefficient service that tariff-protected and
subsidized local manufacturers may otherwise impose upon
the community.
It seems also important to note that tariff rates are
commonly established and the corresponding customs duties
levied and collected upon articles and goods which are not
found at all and not produced in the Philippines. The Tariff
and Customs Code is replete with such articles and
commodities: among the more interesting examples
are ivory (Chapter 5, 5.10); castoreum or musk taken from
the beaver (Chapter 5, 5.14); Olives (Chapter 7,
Notes); truffles or European fungi growing under the soil on
tree roots (Chapter 7, Notes); dates (Chapter 8,
8.01); figs (Chapter 8, 8.03); caviar (Chapter 16,
16.01); aircraft (Chapter 88, 88.0l); special diagnostic
instruments and apparatus for human medicine and surgery

(Chapter 90, Notes); X-ray generators; X-ray tubes;

X-ray screens, etc. (Chapter 90, 90.20); etc. In such cases,
customs duties may be seen to be imposed either for
revenue purposes purely or perhaps, in certain cases, to
discourage any importation of the items involved. In either
case, it is clear that customs duties are levied and imposed
entirely apart from whether or not there are any competing
local industries to protect.
Accordingly, we believe and so hold that Executive Orders
Nos. 475 and 478 which may be conceded to be substantially
moved by the desire to generate additional public revenues,
are not, for that reason alone, either constitutionally flawed,
or legally infirm under Section 401 of the Tariff and Customs
Code. Petitioner has not successfully overcome the
presumptions of constitutionality and legality to which those
Executive Orders are entitled. 7
The conclusion we have reached above renders it
unnecessary to deal with petitioner's additional contention
that, should Executive Orders Nos. 475 and 478 be declared
unconstitutional and illegal, there should be a roll back of
prices of petroleum products equivalent to the "resulting
excess money not be needed to adequately maintain the Oil
Price Stabilization Fund (OPSF)." 8
WHEREFORE, premises considered, the Petition for Certiorari,
Prohibition and Mandamus is hereby DISMISSED for lack of
merit. Costs against petitioner.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Padilla, Bidin, GrioAquino, Medialdea, Regalado, Davide, Jr., Romero, Nocon and
Bellosilo, JJ., concur.

EN BANC
[G.R. No. 100481. January 22, 1997]
PHILIPPINE INTERISLAND SHIPPING ASSOCIATION OF
THE PHILIPPINES, CONFERENCE OF INTERISLAND SHIPOWNERS AND OPERATORS, UNITED PETROLEUM
TANKER OPERATORS ASSOCIATION OF THE
PHILIPPINES, LIGHTERAGE ASSOCIATION OF THE
PHILIPPINES and PILOTAGE INTEGRATED SERVICES
CORPORATION, petitioners, vs. COURT OF APPEALS,
UNITED HARBOR PILOTS' ASSOCIATION OF THE
PHILIPPINES, INC. and MANILA PILOTS'
ASSOCIATION,respondents.
[G.R. Nos. 103716-17. January 22, 1997]
HON. PETE NICOMEDES PRADO, in his capacity as
Secretary of Transportation and Communications and
the PHILIPPINE PORTS AUTHORITY, petitioners,

vs. COURT OF APPEALS, UNITED HARBOR PILOTS'

ASSOCIATION OF THE PHILIPPINES, INC., respondents.
[G.R. No. 107720. January 22, 1997]
HON. JESUS B. GARCIA, JR., in his capacity as
Secretary of Transportation and Communications and
Chairman of the PHILIPPINE PORTS AUTHORITY,
COMMODORE ROGELIO A. DAYAN, in his capacity as
General Manager of the Philippine Ports Authority,
and SIMEON T. SILVA, JR., in his capacity as the South
Harbor Manager, Philippine Ports
Authority, petitioners, vs. HON. NAPOLEON R. FLOJO,
in his capacity as the Presiding Judge of Branch 2,
Regional Trial Court - Manila, UNITED HARBOR PILOTS'
ASSOCIATION OF THE PHILIPPINES and the MANILA
PILOTS' ASSOCIATION, respondents.
DECISION
MENDOZA, J.:
Private respondent United Harbor Pilots' Association of the
Philippines, Inc. (UHPAP) is the umbrella organization of
various groups rendering pilotage service in different ports of
the Philippines. The service consists of navigating a vessel
from a specific point, usually about two (2) miles off shore, to
an assigned area at the pier and vice versa. When a vessel
arrives, a harbor pilot takes over the ship from its captain to
maneuver it to a berth in the port, and when it departs, the
harbor pilot also maneuvers it up to a specific point off
shore. The setup is required by the fact that each port has
peculiar topography with which a harbor pilot is presumed to
be more familiar than a ship captain.
The Philippine Ports Authority (PPA) is the government
agency which regulates pilotage. Pursuant to Presidential
Decree No. 857, it has the power "to supervise, control,
regulate . . . such services as are necessary in the ports
vested in, or belonging to the Authority" [1] and to "control,
regulate and supervise pilotage and the conduct of pilots in
any Port District."[2] It also has the power "to impose, fix,
prescribe, increase or decrease such rates, charges or
fees. . . for the services rendered by the Authority or by any
private organization within a Port District.[3]
These cases arose out of the efforts of harbor pilots to secure
enforcement of Executive Order No. 1088, which fixes the
rates of pilotage service, and the equally determined efforts

of the PPA and its officials, the herein petitioners, to block

enforcement of the executive order, even as they
promulgated their own orders which in the beginning fixed
lower rates of pilotage and later left the matter to self
determination by parties to a pilotage contract.
I. THE FACTS
G.R. No. 103716
On February 3, 1986, shortly before the presidential
elections, President Ferdinand E. Marcos, responding to the
clamor of harbor pilots for an increase in pilotage rates,
issued Executive Order No. 1088, PROVIDING FOR UNIFORM
AND MODIFIED RATES FOR PILOTAGE SERVICES RENDERED
TO FOREIGN AND COASTWISE VESSELS IN ALL PRIVATE AND
PUBLIC PORTS. The executive order increased substantially
the rates of the existing pilotage fees previously fixed by the
PPA.
However, the PPA refused to enforce the executive order on
the ground that it had been drawn hastily and without prior
consultation; that its enforcement would create disorder in
the ports as the operators and owners of the maritime
vessels had expressed opposition to its implementation; and
that the increase in pilotage, as mandated by it, was
exorbitant and detrimental to port operations.[4]
The UHPAP then announced its intention to implement E.O.
No. 1088 effective November 16, 1986. This in turn drew a
warning from the PPA that disciplinary sanctions would be
applied to those who would charge rates under E.O. No.
1088. The PPA instead issued Memorandum Circular No. 4386, fixing pilotage fees at rates lower than those provided in
E.O. No. 1088.
Consequently, the UHPAP filed on January 7, 1987 a
complaint for injunction with the Regional Trial Court of
Manila, against the then Minister of Transportation and
Communications, Hernando Perez, and PPA General Manager,
Primitivo S. Solis, Jr. It sought a writ of preliminary mandatory
injunction for the immediate implementation of E.O. No.
1088, as well as a temporary restraining order to stop PPA
officials from imposing disciplinary sanctions against UHPAP
members charging rates in accordance with E.O. No. 1088.
The case, docketed as Civil Case No. 87-38913, was raffled to
Branch 28 of the Regional Trial Court of Manila which issued a
temporary restraining order, enjoining the PPA from

threatening the UHPAP, its officers and its members with

suspension and other disciplinary action for collecting
pilotage fees pursuant to E.O. No. 1088.
On March 16, 1987, the Chamber of Maritime Industries of
the Philippines, William Lines, Inc., Loadstar Shipping Co., Inc.
and Delsen Transport Lines, Inc., after obtaining leave, filed a
joint answer in intervention.
On February 26, 1988, while the case was pending, the PPA
issued Administrative Order No. 02-88, entitled
IMPLEMENTING GUIDELINES ON OPEN PILOTAGE SERVICE.
The PPA announced in its order that it was leaving to the
contracting parties, i.e., the shipping lines and the pilots, the
fixing of mutually acceptable rates for pilotage services, thus
abandoning the rates fixed by it (PPA) under Memorandum
Circular No. 43-86, as well as those provided in E.O. No.
1088. The administrative order provided:
Section 3. Terms/Conditions on Pilotage Service. The shipping
line or vessel's agent/representative and the harbor pilot/firm
chosen by the former shall agree between themselves,
among others, on what pilotage service shall be performed,
the use of tugs and their rates, taking into consideration the
circumstances stated in Section 12 of PPA AO No. 03-85, and
such other conditions designed to ensure the safe movement
of the vessel in pilotage areas/grounds.
The PPA then moved to dismiss the case, contending that the
issuance of its order had rendered the case moot and
academic and that consequently E.O. No. 1088 had ceased to
be effective. The UHPAP opposed the motion. Together with
the Manila Pilots' Association (MPA), it filed on May 25, 1988
a petition for certiorari and prohibition in the RTC-Manila,
questioning the validity of A.O. No. 02-88. This petition was
docketed as Civil Case No. 88-44726 (United Harbor Pilots'
Association and Manila Pilots' Association v. Hon. Rainerio
Reyes, as Acting Secretary of the Department of
Transportation and Communications and Chairman of the
Philippine Ports Authority (PPA) and Maximo Dumlao, Jr., as
General Manager of the Philippine Ports Authority (PPA), et
al.) and raffled to Branch 2 of RTC-Manila. The factual
antecedents of this case are discussed in G.R. No. 100481
below.
Meanwhile, in Civil Case 87-38913, the court, without
resolving the motion to dismiss filed by the PPA, rendered a

decision[5] holding that A.O. No. 02-88 did not render the case
moot and academic and that the PPA was under obligation to
comply with E.O. No. 1088 because the order had the force of
law which the PPA could not repeal.
The then Transportation Minister Hernando Perez and the PPA
filed a petition for review. The petition was filed in this Court
which later referred the case to the Court of Appeals where it
was docketed as CA G.R. SP. No. 18072. On the other hand
the intervenors appealed to the Court of Appeals where this
case was docketed as CA G.R. No. 21590. The two cases were
then consolidated.
In a decision rendered on October 4, 1991, the Twelfth
Division[6] of the Court of Appeals affirmed the decision of the
trial court, by dismissing CA G.R. No. 21590 and denying CA
G.R. SP. No. 18072. Hence, this petition by the Secretary of
Transportation and Communications and the PPA. The
intervenor shipping lines did not appeal.
G.R. No. 100481
Meanwhile, in a petition for certiorari filed before RTC-Manila,
Branch 2 (Civil Case No. 88-44726), the UHPAP and the MPA
sought the annulment of A.O. No. 02-88, which in pertinent
parts provided:
Section 1. Statement of Policy. It is hereby declared that the
provision of pilotage in ports/harbors/areas defined as
compulsory in Section 8 of PPA Administrative Order No. 0385, entitled, "Rules and Regulations Governing Pilotage
Services, the Conduct of Pilots and Pilotage Fees in Philippine
Ports" shall be open to all licensed harbor pilots/pilotage
firms/associations appointed/accredited by this authority to
perform pilotage service.
Section 2. Persons Authorized to Render Pilotage. The
following individuals, persons or groups shall be
appointed/accredited by this Authority to provide pilotage
service:
a. Harbor Pilots of the present Pilotage Associations of the
different pilotage districts in the Philippines. Their
probationary training as required under Section 31 of PPA AO
No. 03-85 shall be undertaken by any member of said
Association.
b. Members/employees of any partnership/corporation or
association, including Filipino shipmasters/ captains of vessel
(domestic/foreign) of Philippine Registry and individuals who

meet the minimum qualifications and comply with the

requirements prescribed in Sec. 29 of PPA AO No. 03-85,
aforestated, and who are appointed by said firm or
association and accredited as harbor pilots by this authority.
New Harbor Pilots who wish to be appointed/accredited by
PPA under the open pilotage system either as an individual
pilot or as a member of any Harbor Pilot
partnership/association shall be required to undergo a
practical examination, in addition to the written examination
given by the Philippine Coast Guard, prior to their
appointment/ accreditation by this Authority.
The UHPAP and MPA, as petitioners below, contended (1) that
A.O. No. 02-88 was issued without the benefit of a public
hearing; (2) that E.O. No. 1088 had not been repealed by any
other Executive Order or Presidential Decree and, therefore,
should be given effect; and (3) that A.O. No. 02-88
contravened P.D. No. 857.
On August 21, 1989, the Philippine Interisland Shipping
Association, Conference of Interisland Shipowners and
Operators, United Petroleum Tanker Operators of the
Philippines, Lighterage Association of the Philippines, and
Pilotage Integrated Services Corp., were allowed to intervene.
On September 8, 1989, a writ of preliminary injunction was
issued by the court, enjoining the PPA from implementing
A.O. No. 02-88 and, on October 26, 1989, judgment was
rendered in favor of the petitioners therein. The dispositive
portion of the court's decision[7] reads:
WHEREFORE, for all of the foregoing, the petition is hereby
granted.
1. Respondents are hereby declared to have acted in excess
of jurisdiction and with grave abuse of discretion amounting
to lack of jurisdiction in approving Resolution No. 860 and in
enacting Philippine Ports Authority Administrative Order No.
02-88, the subject of which is "Implementing Guidelines on
Open Pilotage Service";
2. Philippine Ports Authority Administrative Order No. 02-88 is
declared null and void;
3. The preliminary injunction issued on September 8, 1989 is
made permanent; and
4. Without costs.
SO ORDERED.

Respondents and the intervenors below filed a joint petition

for certiorari in the Court of Appeals (CA G.R. SP No. 19570),
assailing the decision of the trial court. But their petition was
dismissed for lack of jurisdiction on the ground that the issue
raised was purely legal.
The parties separately filed petitions for review before this
Court. The first one, by the PPA and its officers, was docketed
as G.R. No. 100109 (Hon. Pete Nicomedes Prado, Philippine
Ports Authority and Commodore Rogelio Dayan v. United
Harbor Pilots' Association of the Philippines and Manila Pilots'
Association), while the second one, by the intervenors, was
docketed as G.R. No. 100481 (Philippine Interisland Shipping
Association of the Philippines, Conference of Interisland Ship
Owners and Operators, United Petroleum Tanker Operators
Association of the Philippines, Inc. v. The Court of Appeals,
United Harbor Pilots' Association of the Philippines and Manila
Pilots' Association.)
The petition filed by the government in G.R. No. 100109 was
dismissed for failure of petitioners to show that the Court of
Appeals committed a reversible error. [8] On the other hand,
the petition of the intervenors in G.R. No. 100481 was given
due course.
G.R. No. 107720
Following the denial of its petition in G.R. No. 100109, the
PPA issued on July 31, 1992, Administrative Order No. 05-92,
placing harbor pilots under the control of the PPA with
respect to the scheduling and assignment of service of
vessels. The PPA cited as justification "pilotage delays . . .
under the set-up where private respondents (UHPAP & MPA)
assign the pilots. Intentionally or otherwise, several vessels
do not receive the pilotage service promptly, causing them
operational disruptions and additional expenses/costs." [9]
Private respondents UHPAP and MPA viewed the matter
differently. On October 28, 1992, they asked the RTC-Manila,
Branch 2 which heard and decided Civil Case No. 88-44726 to
cite PPA officials in contempt of court. On the same day, the
trial court issued an order restraining the herein petitioners
from implementing Administrative Order No. 05-92. However,
the PPA proceeded to implement its order, prompting the
UHPAP and MPA to move again to cite petitioners in
contempt, even as they questioned the validity of A.O. No.
05-92. Accordingly the trial court issued another order on

November 4, 1992, reiterating its previous order of October

28, 1992 to petitioners to refrain from implementing A.O. No.
05-92 pending resolution of the petitions.
Making a special appearance, petitioners questioned the
jurisdiction of the court and moved for the dismissal of the
petitions for contempt. Allegedly to prevent the disruption of
pilotage services, petitioners created a special team of
reserve pilots to take over the pilotage service in the event
members of UHPAP/MPA refused to render pilotage services.
For the third time respondents moved to cite petitioners in
contempt of court. Again petitioners questioned the court's
jurisdiction and manifested that they were adopting their
previous motion to dismiss petitions for contempt filed
against them.
On November 17, 1992, the trial court denied the petitioners'
motion and set the contempt petitions for hearing on
November 19, 1992. Hence, this petition, which was
docketed as G.R. No. 107720 (Hon. Jesus B. Garcia, Jr. in his
capacity as Secretary of Transportation and Communications
and Chairman of the Philippine Ports Authority, Commodore
Rogelio A. Dayan, in his capacity as General Manager of the
Philippine Ports Authority and Simeon T. Silva, Jr., in his
capacity as the South Harbor Manager, Philippine Ports
Authority v. Hon. Napoleon Flojo, in his capacity as the
Presiding Judge of Branch 2, RTC, Manila, UHPAP and MPA).
Pending resolution of this case, the Court ordered the parties
to maintain the status quo as of October 31, 1992.
II. THE ISSUES AND THEIR DISPOSITION
The issues raised are:
I. WHETHER OR NOT RESPONDENT COURT OF APPEALS
ERRED IN AFFIRMING THE CHALLENGED DECISION OF RTCMANILA, BRANCH 41, WHICH RULED THAT:
(A) CIVIL CASE NO. 87-38913 HAS NOT BECOME MOOT AND
ACADEMIC WITH THE ISSUANCE OF ADMINISTRATIVE ORDER
NO. 02-88; AND
(B) HEREIN PETITIONERS ARE BOUND TO COMPLY WITH E.O.
NO. 1088;
II. WHETHER OR NOT THE COURT OF APPEALS COMMITTED
REVERSIBLE ERROR IN DISMISSING CA G.R. SP. NO. 19570
FOR LACK OF JURISDICTION?
III. WHETHER OR NOT RESPONDENT JUDGE NAPOLEON FLOJO
COMMITTED GRAVE ABUSE OF DISCRETION IN ASSUMING

JURISDICTION OVER THE PETITIONS FOR CONTEMPT FILED BY

PRIVATE RESPONDENTS AS A RESULT OF THE ISSUANCE OF
A.O. NO. 05-92?
These issues will be discussed in seriatim.
A. Whether Executive Order No. 1088 is Valid and
Petitioners are Bound to Obey it
(G.R. Nos. 103716-17)
Executive Order No. 1088 reads:
EXECUTIVE ORDER No. 1088
PROVIDING FOR UNIFORM AND MODIFIED RATES FOR
PILOTAGE SERVICES RENDERED TO FOREIGN AND
COASTWISE VESSELS IN ALL PRIVATE OR PUBLIC PHILIPPINE
PORTS.
WHEREAS, the United Harbor Pilots' Association of the
Philippines has clamored for the rationalization of pilotage
service charges, through the imposition of uniform and
adjusted rates for foreign and coastwise vessels in all
Philippine ports, whether public or private;
WHEREAS, the plea of the Association has been echoed by a
great number of Members of Parliament and other persons
and groups;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of
the Philippines, by virtue of the powers vested in me by the
Constitution and by law, do hereby direct and order:
Section 1. The following shall be the rate of pilotage fees or
charges based on tonnage for services rendered to both
foreign and coastwise vessels;
For Foreign Vessels Rate in US $ or
its Peso
Equivalent
Less than 500GT $ 30.00
500GT to 2,500GT 43.33
2,500GT to 5,000GT 71.33
5,000GT to 10,000GT 133.67
10,000GT to 15,000GT 181.67
15,000GT to 20,000GT 247.00
20,000GT to 30,000GT 300.00
30,000GT to 40,000GT 416.67
40,000GT to 60,000GT 483.33
60,000GT to 80,000GT 550.00
80,000GT to 100,000GT 616.67
100,000GT to 120,000GT 666.67

120,000GT to 130,000GT 716.67

130,000GT to 140,000GT 766.67
Over 140,000 gross tonnage $0.05 or its peso equivalent
every excess tonnage. Rate for docking and undocking
anchorage, conduction and shifting other related special
services is equal to 100%. Pilotage services shall be
compulsory in government and private wharves or piers,
For Coastwise Vessels: Regular
100 and under 500 gross tons P 41.70
500 and under 600 gross tons 55.60
600 and under 1,000 gross tons 69.60
1,000 and under 3,000 gross tons 139.20
3,000 and under 5,000 gross tons 300.00
5,000 and over gross tons
SEC. 2. With respect to foreign vessels, payment of pilotage
services shall be made in dollars or in pesos at the prevailing
exchange rate.
SEC. 3. All orders, letters of instruction, rules, regulations and
other issuances inconsistent with this Executive Order are
hereby repealed or amended accordingly.
SEC. 4. This Executive Order shall take effect immediately.
Done in the City of Manila, this 3rd day of February, in the
year of our Lord, nineteen hundred and eighty-six.
(Sgd.) FERDINAND E. MARCOS
President of the Philippines
By the President:
(Sgd.) JUAN C. TUVERA
Presidential Executive Assistant
Petitioners contend that E.O. No. 1088 was merely an
administrative issuance of then President Ferdinand E.
Marcos and, as such, it could be superseded by an order of
the PPA. They argue that to consider E.O. No. 1088 a statute
would be to deprive the PPA of its power under its charter to
fix pilotage rates.
The contention has no merit. The fixing of rates is essentially
a legislative power.[10] Indeed, the great battle over the
validity of the exercise of this power by administrative
agencies was fought in the 1920s on the issue of undue
delegation precisely because the power delegated was
legislative. The growing complexity of modern society, the
multiplication of the subjects of governmental regulations
and the increased difficulty of administering the laws made

the creation of administrative agencies and the delegation to

them of legislative power necessary. [11]
There is no basis for petitioners' argument that rate fixing is
merely an exercise of administrative power; that if President
Marcos had power to revise the rates previously fixed by the
PPA through the issuance of E.O. No. 1088, the PPA could in
turn revise those fixed by the President, as the PPA actually
did in A.O. No. 43-86, which fixed lower rates of pilotage fees,
and even entirely left the fees to be paid for pilotage to the
agreement of the parties to a contract. The orders previously
issued by the PPA were in the nature of subordinate
legislation, promulgated by it in the exercise of delegated
power. As such these could only be amended or revised by
law, as the President did by E.O. No. 1088.
It is not an answer to say that E.O. No. 1088 should not be
considered a statute because that would imply the
withdrawal of power from the PPA. What determines whether
an act is a law or an administrative issuance is not its form
but its nature. Here, as we have already said, the power to fix
the rates of charges for services, including pilotage service,
has always been regarded as legislative in character.
Nor is there any doubt of the power of the then President to
fix rates. On February 3, 1986, when he issued E.O. No. 1088,
President Marcos was authorized under Amendment No. 6 of
the 1973 Constitution to exercise legislative power, just as he
was under the original 1973 Constitution, when he issued P.D.
NO. 857 which created the PPA, endowing it with the power
to regulate pilotage service in Philippine ports. Although the
power to fix rates for pilotage had been delegated to the PPA,
it became necessary to rationalize the rates of charges fixed
by it through the imposition of uniform rates. That is what the
President did in promulgating E.O. No. 1088. As the President
could delegate the ratemaking power to the PPA, so could he
exercise it in specific instances without thereby withdrawing
the power vested by P.D. No. 857, Section 20(a) in the PPA
"to impose, fix, prescribe, increase or decrease such rates,
charges or fees... for the services rendered by the Authority
or by any private organization within a Port District."
It is worthy to note that E.O. No. 1088 provides for adjusted
pilotage service rates without withdrawing the power of the
PPA to impose, prescribe, increase or decrease rates, charges
or fees. The reason is because E.O. NO. 1088 is not meant

simply to fix new pilotage rates. Its legislative purpose is the

"rationalization of pilotage service charges, through the
imposition of uniform and adjusted rates for foreign and
coastwise vessels in all Philippine ports."
The case presented is similar to the fixing of wages under the
Wage Rationalization Act (R.A. No. 6727) whereby minimum
wages are determined by Congress and provided by law,
subject to revision by Wage Boards should later conditions
warrant their revision. It cannot be denied that Congress may
intervene anytime despite the existence of administrative
agencies entrusted with wage-fixing powers, by virtue of the
former's plenary power of legislation. When Congress does
so, the result is not the withdrawal of the powers delegated
to the Wage Boards but cooperative lawmaking in an area
where initiative and expertise are required. The Court of
Appeals is correct in holding that
The power of the PPA to fix pilotage rates and its authority to
regulate pilotage still remain notwithstanding the fact that a
schedule for pilotage fees has already been prescribed by the
questioned executive order. PPA is at liberty to fix new rates
of pilotage subject only to the limitation that such new rates
should not go below the rates fixed under E.O. 1088. The
rationale behind the limitation is no different from what has
been previously stated. Being a mere administrative agency,
PPA cannot validly issue orders or regulations that would
have the effect of rendering nugatory the provisions of the
legislative issuance such as those of the executive order in
question.(emphasis supplied)
Petitioners refused to implement E.O. No. 1088 on the ground
that it was issued without notice to the PPA and that it was
nothing but a "political gimmick" resorted to by then
President Marcos. This perception obviously stemmed from
the fact that E.O. No. 1088 was issued shortly before the
presidential elections in 1986.
But lack of notice to the PPA is not proof that the necessary
factual basis for the order was wanting. To the contrary, the
presumption is that the President had before him pertinent
data on which he based the rates prescribed in his order. Nor
is the fact that the order might have been issued to curry
favor with the voters a reason for the PPA to refuse to enforce
the order in question. It is not unusual for lawmakers to have

in mind partisan political consideration in sponsoring

legislation. Yet that is not a ground for invalidating a statute.
Moreover, an inquiry into legislative motivation is not proper
since the only relevant question is whether in issuing it the
President violated constitutional and statutory restrictions on
his power. The PPA did not have any objection to the order
based on constitutional ground. In fact the nearest to a
challenge on constitutional grounds was that mounted not by
the PPA but by the intervenors below which claimed that the
rates fixed in E.O. NO. 1088 were exorbitant and
unreasonable. However, both the trial court and the Court of
Appeals overruled the objections and the intervenors
apparently accepted the ruling because they did not appeal
further to this Court.
There is, therefore, no legal basis for PPA's intransigence,
after failing to get the new administration of President Aquino
to revoke the order by issuing it own order in the form of A.O.
NO. 02-88. It is noteworthy that if President Marcos had
legislative power under Amendment No. 6 of the 1973
Constitution[12] so did President Aquino under the Provisional
(Freedom) Constitution[13] who could, had she thought E.O.
No. 1088 to be a mere "political gimmick," have just as easily
revoked her predecessor's order. It is tempting to ask if the
administrative agency would have shown the same act of
defiance of the President's order had there been no change
of administration. What this Court said in La Perla Cigar and
Cigarette Factory v. Capapas," [14] mutatis mutandis may be
applied to the cases at bar:
Was it within the powers of the then Collector Ang-angco to
refuse to collect the duties that must be paid? That is the
crucial point of inquiry. We hold that it was not.
Precisely, he had to give the above legal provisions, quite
explicit in character, force and effect. His obligation was to
collect the revenue for the government in accordance with
existing legal provisions, executive agreements andexecutive
orders certainly not excluded. He would not be living up to
his official designation if he were permitted to act otherwise.
He was not named Collector of Customs for nothing. . . .
Certainly, if the President himself were called upon to
execute the laws faithfully, a Collector of Customs, himself a
subordinate executive official, cannot be considered as
exempt in any wise from such an obligation of fealty.

Similarly, if the President cannot suspend the operation of

any law, it would be presumptuous in the extreme for one in
the position of then Collector Ang-angco to consider himself
as possessed of such a prerogative. . . .
We conclude that E.O. No. 1088 is a valid statute and that the
PPA is duty bound to comply with its provisions. The PPA may
increase the rates but it may not decrease them below those
mandated by E.O. No. 1088. Finally, the PPA cannot refuse to
implement E.O. No. 1088 or alter it as it did in promulgating
Memorandum Circular No. 43-86. Much less could the PPA
abrogate the rates fixed and leave the fixing of rates for
pilotage service to the contracting parties as it did through A.
O. No. 02-88, Section 3. Theretofore the policy was one of
governmental regulation of the pilotage business. By leaving
the matter to the determination of the parties, the PPA
jettisoned this policy and changed it to laissez-faire,
something which only the legislature, or whoever is vested
with lawmaking authority, could do.
B. Whether the Court of Appeals had Jurisdiction over
the
Appeal of Intervenors from the Decision of the
Trial Court Invalidating Administrative Order
No. 02-88 of the PPA
(G.R. No. 100481)
The Court of Appeals dismissed the joint appeal of the
government and the intervenors from the trial court's
decision in Civil Case No. 88-44726 on the ground that the
issues raised were purely legal questions. [15] The appellate
court stated:
After a painstaking review of the records We resolved to
dismiss the petition for lack of jurisdiction.
From the facts, it is clear that the main issue proffered by the
appellant is whether or not the respondent Philippine Ports
Authority could validly issue rules and regulations adopting
the "open pilotage policy" pursuant to its charter (P.D. 857).
....
It must be noted that while the court a quo had clearly
recognized the intricate legal issue involved, it nevertheless
decided it on the merits which apparently resolved only the
procedural aspect that justified it in declaring the questioned
order as null and void. While We recognize the basic
requirements of due process, the same cannot take

precedence in the case at bar in lieu of the fact that the

resolution of the present case is purely a legal question.
Moreover, it appears that appellants in the court below had
filed a manifestation and motion waiving their presentation of
evidence. Instead, they opted to submit a comprehensive
memorandum of the case on the ground that the pivotal
issue raised in the petition below is purely legal in character.
(p. 231, Records)
At this juncture, We are at a loss why appellants had elevated
the present action before Us where at the outset they already
noted that the issue is purely legal.
If in the case of Murillo v. Consul (UDK-9748, Resolution en
banc, March 1, 1990) the Supreme Court laid down the rule
that "if an appeal by notice of appeal is taken from the
Regional Trial Court to the Court of Appeals, and in the latter
Court, the appellant raised naught but issues of law, the
appeal should be dismissed for lack of jurisdiction (page 5,
Resolution in Murillo)," then with more reason where as in the
case at bar public-appellants thru the Office of the Solicitor
General in their memorandum manifested that the
controversy has reference to the pure legal question of the
validity of the questioned administrative order. Consequently,
We have no other recourse but to dismiss the petition on the
strength of these pronouncements.
As already stated, from this decision, both the government
and the intervenors separately brought petitions for review to
this Court. In G.R. No. 100109, the government's petition was
dismissed for lack of showing that the appellate court
committed reversible error. The dismissal of the
government's petition goes far to sustain the dismissal of the
intervenors' petition in G.R. No. 100481 for the review of the
same decision of the Court of Appeals. After all, the
intervenors' petition is based on substantially the same
grounds as those stated in the government's petition. It is
now settled that the dismissal of a petition for review
on certiorari is an adjudication on the merits of a controversy.
[16]
Such dismissal can only mean that the Supreme Court
agrees with the findings and conclusions of the Court of
Appeals or that the decision sought to be reviewed is correct.
[17]

It is significant to note that the Secretary of Transportation

and Communications and the PPA, petitioners in G.R. No.

100109, have conceded the finality of the dismissal of their

appeal.[18] Thus, the administrative policy, the validity of
which herein petitioners seek to justify by their appeal, has
already been abandoned by the very administrative agency
which adopted it, with the result that the question of validity
of A.O. No. 02-88 is now moot and academic.
C. Whether the Trial Court has Jurisdiction to Hear and
Decide the Contempt Charges
against Petitioners
(G.R. No. 107720)
As already noted, following the dismissal of the government's
appeal in G.R. No. 100109, the PPA abandoned A.O. No. 02-88
which provided for "Open Pilotage System." But it
subsequently promulgated Administrative Order No. 05-92,
under which the PPA assumed the power of scheduling and
assigning pilots to service vessels, allegedly regardless of
whether the pilots assigned are or are not members of the
UHPAP and the MPA which theretofore had been the exclusive
agencies rendering pilotage service in Philippine ports. The
UHPAP and the MPA saw the adoption of this system as a
return to the "Open Pilotage System" and, therefore, a
violation of the trial court's decision invalidating the "Open
Pilotage System." They considered this to be a contempt of
the trial court.
Petitioners moved to dismiss the motions for contempt
against them. They contend that even if the motions were
filed as incidents of Civil Case No. 88-44726, the RTC-Manila,
Branch 2 did not have jurisdiction to hear them because the
main case was no longer before the court and the fact was
that the contempt citation was not an incident of the case,
not even of its execution, but a new matter raising a new
cause of action which must be litigated in a separate action,
even as petitioners denied they had committed any
contumacious act by the issuance of A.O. No. 05-92.
Private respondents maintained that their petitions were
mere incidents of Civil Case No. 88-44726 and that the trial
court has jurisdiction because in fact this Court had not yet
remanded the case to the court a quo for execution of its
decision. Private respondents complain that petitioners are
trying to circumvent the final and executory decision of the
court in Civil Case No. 88-44726, through the issuance of A.O.
No. 05-92.

As already noted, however, the decision of the trial court in

Civil Case No. 88-44726 enjoined petitioners from
implementing the so called "Open Pilotage System"
embodied in A O. No. 02-88. If, as alleged, A.O. No. 05-92 is
in substance a reenactment of A.O. No. 02-88, then there is
basis for private respondents' invocation of the trial court's
jurisdiction to punish for contempt.
Still it is argued that the trial court lost jurisdiction over Civil
Case No. 887426, upon the perfection of their appeal from its
decision. That is indeed true. "The appeal transfers the
proceedings to the appellate court, and this last court
becomes thereby charged with the authority to deal with
contempt's committed after perfection of the appeal." [19] The
trial court would have jurisdiction only in the event of an
attempt to block execution of its decision and that would be
after the remand of the case to the trial court. [20] Until then
the trial court would have no jurisdiction to deal with alleged
contemptuous acts.
The fly in the ointment, however, is that by accepting the
dismissal of their petition for review in G.R. No. 100109,
petitioners rendered execution of the decision of the trial
court superfluous. Any attempt by them, therefore, to
disobey the court's final injunction as embodied in its
decision would be properly subject to punishment for
contempt. Petitioners' contention that private respondents'
complaint must be the subject of a separate action would
nullify contempt proceedings as means of securing
obedience to the lawful processes of a court. Petitioners'
theory would reward ingenuity and cunning in devising
orders which substantially are the same as the order
previously prohibited by the court.
We hold that the trial court has jurisdiction to hear the
motions for contempt filed by private respondent, subject to
any valid defense which petitioners may interpose.
III. JUDGMENT
WHEREFORE, the several petitions in these cases are
DISMISSED.
SO ORDERED.
Narvasa, C.J., Padilla, Davide, Jr., Romero, Bellosillo, Melo,
Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr.,
Panganiban, and Torres, Jr., JJ., concur.
Regalado, J., no part related to a counsel in G.R. No. 100481

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-2044
August 26, 1949
J. ANTONIO ARANETA, petitioner,
vs.
RAFAEL DINGLASAN, Judge of First Instance of Manila,
and JOSE P. BENGZON, Fiscal of City of
Manila,respondents.
x---------------------------------------------------------x
G.R. No. L-2756
August 26, 1949
J. ANTONIO ARANETA and GREGORIO
VILLAMOR, petitioners,
vs.
EUGENIO ANGELES, Fiscal of City of Manila, respondent.
x---------------------------------------------------------x
G.R. No. L-3054
August 26, 1949
EULOGIO RODRIGUEZ, Sr., por si y como Presidente del
Partido Nacionalista, recurrente,
vs.
EL TESORERO DE FILIPINAS, recurrido.
x---------------------------------------------------------x

G.R. No. L-3055

August 26, 1949
LEON MA. GURRERO, petitioner,
vs.
THE COMMISSIONER OF CUSTOMS and THE
ADMINISTRATOR, SUGAR QUOTA OFFICE, DEPARTMENT
OF COMMERCE AND INDUSTRY, respondents.
x---------------------------------------------------------x
G.R. No. L-3056
August 26, 1949
ANTONIO BARREDO, in his own behalf and on behalf of
all taxpayers similarly situated, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE AUDITOR
GENERAL and THE INSULAR TREASURER OF THE
PHILIPPINES, respondents.
L-2044
Paredes, Diaz and Poblador, Jesus G. Barrera, Vicente Hilado,
and Araneta and Araneta for petitioner.
Office of the Solicitor General Felix Bautista Angelo, Assistant
Solicitor General Ruperto Kapunan, Jr., Solicitor Martiniano P.
Vico and Assistant City Fiscal Julio Villamor for respondents.
Claro M. Recto and Padilla, Carlos and Fernando as amici
curiae.
L-2756
Araneta and Araneta and Jesus G. Barrera for petitioners.
Assistant City Fiscal Luis B. Reyes for respondent.
Claro M. Recto as amici curiae.
L-3054
Claro M. Recto, Ramon Diokno, Jose O. Vera, Alejo Mabanag,
Jose B. Laurel, Jr. and Antonio Barredo for petitioner.
Office of the Solicitor General Felix Bautista Angelo for
respondent.
Vicente de Vera, Chairman, Commission on Elections.
Alfonso Ponce Enrile, Alva J. Hill and Honorio Poblador, Jr. and
Emiliano R. Navarro as amici curiae.
Jesus G. Barrera, Enrique M. Fernando, Ramon Sunico, and
Francisco A. Rodrigo also as amici curiae.
L-3055
Claro M. Recto and Leon Ma. Guerrero for petitioner.
Office of the Solicitor General Felix Bautista Angelo for
respondents.
V. G. Bunuan, Administrator, Sugar Quota Office.

Jesus G. Barrera, Felixberto M. Serrano, Enrique; Honorio

Poblador, Jr. and Emiliano R. Navarro as amici curiae.
L-3056
Claro M. Recto and Antonio Barredo for petitioner.
Office of the Solicitor General Felix Bautista Angelo for
respondents.
Vicente de Vera, Chairman, Commission on Elections.
Alfonso Ponce Enrile, Alva J. Hill, Jesus G. Barrera, Enrique M.
Fernando, Ramon Sunico and Francisco A. Rodrigo; Honorio
Poblador, Jr. and Emiliano R. Navarro as amici curiae.
TUASON, J.:
Three of these cases were consolidated for argument and the
other two were argued separately on other dates. Inasmuch
as all of them present the same fundamental question which,
in our view, is decisive, they will be disposed of jointly. For
the same reason we will pass up the objection to the
personality or sufficiency of interest of the petitioners in case
G. R. No. L-3054 and case G. R. No. L-3056 and the question
whether prohibition lies in cases Nos. L-2044 and L-2756. No
practical benefit can be gained from a discussion of the
procedural matters since the decision in the cases wherein
the petitioners' cause of action or the propriety of the
procedure followed is not in dispute, will be controlling
authority on the others. Above all, the transcendental
importance to the public of these cases demands that they
be settled promptly and definitely, brushing aside, if we
must, technicalities of procedure. (Avelino vs. Cuenco, G. R.
No. L-2821.) The petitions challenge the validity of executive
orders of the President avowedly issued in virtue of
Commonwealth Act No. 671. Involved in cases Nos. L-2044
and L-2756 is Executive Order No. 62, which regulates rentals
for houses and lots for residential buildings. The petitioner, J.
Antonio Araneta, is under prosecution in the Court of First
Instance of Manila for violation of the provisions of this
Executive Order, and prays for the issuance of the writ of
prohibition to the judge and the city fiscal. Involved in case L3055 is Executive Order No. 192, which aims to control
exports from the Philippines. In this case, Leon Ma. Guerrero
seeks a writ of mandamus to compel the Administrator of the
Sugar Quota Office and the Commissioner of Customs to
permit the exportation of shoes by the petitioner. Both official
refuse to issue the required export license on the ground that

the exportation of shoes from the Philippines is forbidden by

this Executive Order. Case No. L-3054 relates to Executive
Order No. 225, which appropriates funds for the operation of
the Government of the Republic of the Philippines during the
period from July 1, 1949 to June 30, 1950, and for other
purposes. The petitioner Eulogio Rodriguez, Sr., as a taxpayer, an elector, and president of the Nacionalista Party,
applies for a writ of prohibition to restrain the Treasurer of the
Philippines from disbursing this Executive Order. Affected in
case No. L-3056 is Executive Order No. 226, which
appropriates P6,000,000 to defray the expenses in
connection with, and incidental to, the hold lug of the
national elections to be held in November, 1949. The
petitioner, Antonio Barredo, as a citizen, tax-payer and voter,
asks this Court to prevent "the respondents from disbursing,
spending or otherwise disposing of that amount or any part
of it."
Notwithstanding allegations in the petitions assailing the
constitutionally of Act No. 671, the petitioners do not press
the point in their oral argument and memorandum. They rest
their case chiefly on the proposition that the Emergency
Powers Act (Commonwealth Act No. 671) has ceased to have
any force and effect. This is the basic question we have
referred to, and it is to this question that we will presently
address ourselves and devote greater attention. For the
purpose of this decision, only, the constitutionality of Act No.
671 will be taken for granted, and any dictum or statement
herein which may appear contrary to that hypothesis should
be understood as having been made merely in furtherance of
the main thesis.
Act No. 671 in full is as follows:
AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A
RESULT OF WAR INVOLVING THE PHILIPPINES AND
AUTHORIZING THE PRESIDENT TO PROMULGATE RULES AND
REGULATIONS TO MEET SUCH EMERGENCY.
Be it enacted by the National Assembly of the Philippines:
SECTION 1. The existence of war between the United States
and other countries of Europe and Asia, which involves the
Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting
emergency.

"SEC. 2. Pursuant to the provisions of Article VI, section 26, of

the Constitution, the President is hereby authorized, during
the existence of the emergency, to promulgate such rules
and regulations as he may deem necessary to carry out the
national policy declared in section 1 hereof. Accordingly, he
is, among other things, empowered (a) to transfer the seat of
the Government or any of its subdivisions, branches,
departments, offices, agencies or instrumentalities; (b) to
reorganize the Government of the Commonwealth including
the determination of the order of precedence of the heads of
the Executive Department; (c) to create new subdivisions,
branches, departments, agencies or instrumentalities of
government and to abolish any of those already existing; (d)
to continue in force laws and appropriations which would
lapse or otherwise become inoperative, and to modify or
suspend the operation or application of those of an
administrative character; (e) to impose new taxes or to
increase, reduce, suspend or abolish those in existence; (f) to
raise funds through the issuance of bonds or otherwise, and
to authorize the expenditure of the proceeds thereof; (g) to
authorize the national, provincial, city or municipal
governments to incur in overdrafts for purposes that he may
approve; (h) to declare the suspension of the collection of
credits or the payment of debts; and (i) to exercise such
other powers as he may deem to enable the Government to
fulfill its responsibities and to maintain and enforce the
authority.
SEC. 3. The President of the Philippines shall as soon as
practicable upon the convening of the Congress of the
Philippines report thereto all the rules and regulations
promulgated by him under the powers herein granted.
SEC. 4. This Act shall take effect upon its approval and the
rules and regulations promulgated hereunder shall be in force
and effect until the Congress of the Philippines shall
otherwise provide.
Section 26 of Article VI of the Constitution provides:
In time of war or other national emergency, the Congress
may by law authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to
promulgate rules and regulations to carry out a declared
national policy.

Commonwealth Act No. 671 does not in term fix the duration
of its effectiveness. The intention of the Act has to be sought
for in its nature, the object to be accomplish, the purpose to
be subserved, and its relation to the Constitution. The
consequences of the various constructions offered will also
be resorted to as additional aid to interpretation. We test a
rule by its results.
Article VI of the Constitution provides that any law passed by
virtue thereof should be "for a limited period." "Limited" has
been defined to mean "restricted; bounded; prescribed;
confined within positive bounds; restrictive in duration,
extent or scope." (Encyclopedia Law Dictionary, 3rd ed., 669;
Black's Law Dictionary, 3rd ed., 1120.) The words "limited
period" as used in the Constitution are beyond question
intended to mean restrictive in duration. Emergency, in order
to justify the delegation of emergency powers, "must be
temporary or it can not be said to be an emergency." (First
Trust Joint Stock Land Bank of Chicago vs. Adolph P. Arp, et
al., 120 A. L. R., 937, 938.).
It is to be presumed that Commonwealth Act No. 671 was
approved with this limitation in view. The opposite theory
would make the law repugnant to the Constitution, and is
contrary to the principle that the legislature is deemed to
have full knowledge of the constitutional scope of its powers.
The assertion that new legislation is needed to repeal the act
would not be in harmony with the Constitution either. If a new
and different law were necessary to terminate the delegation,
the period for the delegation, it has been correctly pointed
out, would be unlimited, indefinite, negative and uncertain;
"that which was intended to meet a temporary emergency
may become permanent law," (Peck vs. Fink, 2 Fed. [2d],
912); for Congress might not enact the repeal, and even if it
would, the repeal might not meet the approval of the
President, and the Congress might not be able to override the
veto. Furthermore, this would create the anomaly that, while
Congress might delegate its powers by simple majority, it
might not be able to recall them except by a two-third vote.
In other words, it would be easier for Congress to delegate its
powers than to take them back. This is not right and is not,
and ought not to be, the law. Corwin, President: Office and
Powers, 1948 ed., p. 160, says:

It is generally agreed that the maxim that the legislature may

not delegate its powers signifies at the very least that the
legislature may not abdicate its powers: Yet how, in view of
the scope that legislative delegations take nowadays, is the
line between delegation and abdication to be maintained?
Only, I urge, by rendering the delegated powers recoverable
without the consent of the delegate; . . . .
Section 4 goes far to settle the legislative intention of this
phase of Act No. 671. Section 4 stipulates that "the rules and
regulations promulgated thereunder shall be in full force and
effect until the Congress of the Philippines shall otherwise
provide." The silence of the law regarding the repeal of the
authority itself, in the face of the express provision for the
repeal of the rules and regulations issued in pursuance of it,
a clear manifestation of the belief held by the National
Assembly that there was no necessity to provide for the
former. It would be strange if having no idea about the time
the Emergency Powers Act was to be effective the National
Assemble failed to make a provision for this termination in
the same way that it did for the termination of the effects
and incidents of the delegation. There would be no point in
repealing or annulling the rules and regulations promulgated
under a law if the law itself was to remain in force, since, in
that case, the President could not only make new rules and
regulations but he could restore the ones already annulled by
the legislature.
More anomalous than the exercise of legislative function by
the Executive when Congress is in the unobstructed exercise
of its authority is the fact that there would be two legislative
bodies operating over the same field, legislating concurrently
and simultaneously, mutually nullifying each other's actions.
Even if the emergency powers of the President, as suggested,
be suspended while Congress was in session and be revived
after each adjournment, the anomaly would not be limited.
Congress by a two-third vote could repeal executive orders
promulgated by the President during congressional recess,
and the President in turn could treat in the same manner,
between sessions of Congress, laws enacted by the latter.
This is not a fantastic apprehension; in two instances it
materialized. In entire good faith, and inspired only by the
best interests of the country as they saw them, a former
President promulgated an executive order regulating house

rentals after he had vetoed a bill on the subject enacted by

Congress, and the present Chief Executive issued an
executive order on export control after Congress had refused
to approve the measure.
Quiet apart from these anomalies, there is good basis in the
language of Act No. 671 for the inference that the National
Assembly restricted the life of the emergency powers of the
President to the time the Legislature was prevented from
holding sessions due to enemy action or other causes
brought on by the war. Section 3 provides:
The President of the Philippines shall as soon as practicable
upon the convening of the Congress of the Philippines report
thereto all the rules and regulations promulgated by him
under the powers herein granted.
The clear tenor of this provision is that there was to be only
one meeting of Congress at which the President was to give
an account of his trusteeship. The section did not say each
meeting, which it could very well have said if that had been
the intention. If the National Assembly did not think that the
report in section 3 was to be the first and last Congress Act
No. 671 would lapsed, what reason could there be for its
failure to provide in appropriate and clear terms for the filing
of subsequent reports? Such reports, if the President was
expected to continue making laws in the forms of rules,
regulations and executive orders, were as important, of as
unimportant, as the initial one.
As a contemporary construction, President Quezon's
statement regarding the duration of Act No. 671 is
enlightening and should carry much weight, considering his
part in the passage and in the carrying out of the law. Mr.
Quezon, who called the National Assembly to a special
session, who recommended the enactment of the Emergency
Powers Act, if indeed he was not its author, and who was the
very President to be entrusted with its execution, stated in
his autobiography, "The Good Fight," that Act No. 671 was
only "for a certain period" and "would become invalid unless
reenacted." These phrases connote automatical extinction of
the law upon the conclusion of a certain period. Together
they denote that a new legislation was necessary to keep
alive (not to repeal) the law after the expiration of that
period. They signify that the same law, not a different one,
had to be repassed if the grant should be prolonged.

What then was the contemplated period? President Quezon

in the same paragraph of his autobiography furnished part of
the answer. He said he issued the call for a special session of
the National Assembly "when it became evident that we were
completely helpless against air attack, and that it was most
unlikely the Philippine Legislature would hold its next regular
session which was to open on January 1, 1942." (Emphasis
ours.) It can easily be discerned in this statement that the
conferring of enormous powers upon the President was
decided upon with specific view to the inability of the
National Assembly to meet. Indeed no other factor than this
inability could have motivated the delegation of powers so
vast as to amount to an abdication by the National Assembly
of its authority. The enactment and continuation of a law so
destructive of the foundations of democratic institutions
could not have been conceived under any circumstance short
of a complete disruption and dislocation of the normal
processes of government. Anyway, if we are to uphold the
constitutionality of the act on the basis of its duration, we
must start with the premise that it fixed a definite, limited
period. As we have indicated, the period that best comports
with constitutional requirements and limitations, with the
general context of the law and with what we believe to be
the main if not the sole raison d'etre for its enactment, was a
period coextensive with the inability of Congress to function,
a period ending with the conventing of that body.
It is our considered opinion, and we so hold, that
Commonwealth Act No. 671 became inoperative when
Congress met in regular session on May 25, 1946, and that
Executive Orders Nos. 62, 192, 225 and 226 were issued
without authority of law. In setting the session of Congress
instead of the first special session preceded it as the point of
expiration of the Act, we think giving effect to the purpose
and intention of the National Assembly. In a special session,
the Congress may "consider general legislation or only such
as he (President) may designate." (Section 9, Article VI of the
Constitution.) In a regular session, the power Congress to
legislate is not circumscribed except by the limitations
imposed by the organic law.
Having arrived at this conclusion, we are relieved of the
necessity of deciding the question as to which department of
government is authorized to inquire whether the contingency

on which the law is predicated still exists. The right of one or

another department to declare the emergency terminated is
not in issue. As a matter of fact, we have endeavored to find
the will of the National Assemblycall that will, an exercise
of the police power or the war power and, once
ascertained, to apply it. Of course, the function of
interpreting statutes in proper cases, as in this, will not be
denied the courts as their constitutional prerogative and duty.
In so far as it is insinuated that the Chief Executive has the
exclusive authority to say that war not ended, and may act
on the strength of his opinion and findings in contravention of
the law as the courts have construed it, no legal principle can
be found to support the proposition. There is no pretense that
the President has independent or inherent power to issue
such executive orders as those under review. we take it that
the respondents, in sustaining the validity of these executive
orders rely on Act No. 600, Act No. 620, or Act No. 671 of the
former Commonwealth and on no other source. To put it
differently, the President's authority in this connection is
purely statutory, in no sense political or directly derived from
the Constitution.
Act No. 671, as we have stressed, ended ex proprio vigore
with the opening of the regular session of Congress on May
25, 1946. Acts Nos. 600 and 620 contain stronger if not
conclusive indication that they were self-liquidating. By
express provision the rules and regulations to be eventually
made in pursuance of Acts Nos. 600 and 620, respectively
approved on August 19, 1940 and June 6, 1941, were to be
good only up to the corresponding dates of adjournment of
the following sessions of the Legislature, "unless sooner
amended or repealed by the National Assembly." The logical
deduction to be drawn from this provision is that in the mind
of the lawmakers the idea was fixed that the Acts themselves
would lapse not latter than the rules and regulations. The
design to provide for the automatic repeal of those rules and
regulations necessarily was predicated on the consciousness
of a prior or at best simultaneous repeal of their source. Were
not this the case, there would arise the curious spectacle,
already painted, and easily foreseen, of the Legislature
amending or repealing rules and regulations of the President
while the latter was empowered to keep or return them into
force and to issue new ones independently of the National

Assembly. For the rest, the reasoning heretofore adduced

against the asserted indefinite continuance of the operation
of Act No. 671 equally applies to Acts Nos. 600 and 620.
The other corollary of the opinion we have reached is that the
question whether war, in law or in fact, continues, is
irrelevant. If we were to that actual hostilities between the
original belligerents are still raging, the elusion would not be
altered. After the convening of Congress new legislation had
to be approved if the continuation of the emergency powers,
or some of them, was desired. In the light of the conditions
surrounding the approval of the Emergency Power Act, we
are of the opinion that the "state of total emergency as a
result of war" envisaged in the preamble referred to the
impending invasion and occupation of the Philippines by the
enemy and the consequent total disorganization of the
Government, principally the impossibility for the National
Assembly to act. The state of affairs was one which called for
immediate action and with which the National Assembly
would would not be able to cope. The war itself and its
attendant chaos and calamities could not have necessitated
the delegation had the National Assembly been in a position
to operate.
After all the criticism that have been made against the
efficiency of the system of the separation of powers, the fact
remains that the Constitution has set up this form of
government, with all its defects and shortcomings, in
preference to the commingling of powers in one man or
group of men. The Filipino people by adopting parliamentary
government have given notice that they share the faith of
other democracy-loving people in this system, with all its
faults, as the ideal. The point is, under this framework of
government, legislation is preserved for Congress all the
time, not expecting periods of crisis no matter how serious.
Never in the history of the United States, the basic features
of whose Constitution have been copied in ours, have the
specific functions of the legislative branch of enacting laws
been surrendered to another department unless we regard
as legislating the carrying out of a legislative policy according
to prescribed standards; no, not even when that Republic was
fighting a total war, or when it was engaged in a life-anddeath struggle to preserve the Union. The truth is that under
our concept of constitutional government, in times of

extreme perils more than in normal circumstances "the

various branches, executive, legislative, and judicial," given
the ability to act, are called upon "to the duties and
discharge the responsibilities committed to them
respectively."
These observations, though beyond the issue as formulated
in this decision, may, we trust, also serve to answer the
vehement plea that for the good of the Nation, the President
should retain his extraordinary powers as long asturmoil and
other ills directly or indirectly traceable to the late war harass
the Philippines.
Upon the foregoing considerations, the petitions will be
granted. In order to avoid any possible disruption and
interruption in the normal operation of the Government, we
have deemed it best to depart in these cases from the
ordinary rule to the period for the effectivity of decisions, and
to decree, as it is hereby decreed, that this decision take
effect fifteen days from the date of the entry of final
judgment provided in section 8 of Rule 53 of the Rules of
Court in relation to section 2 of Rule 35. No costs will be
charged.
Ozaeta, J., concurs.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-6266
February 2, 1953
EULOGIO RODRIGUEZ, SR., ETC., ET AL., petitioners,
vs.
VICENTE GELLA, ETC., ET AL., respondents.
Eulogio Rodriguez, Sr., Lorenzo M. Taada, Claro M. Recto,
Jose P. Laurel, Jesus Barrera and Leon Ma. Guerrero for
petitioner.
Office of the Solicitor General Juan R. Liwag and Solicitor
Martiniano P. Vivo for respondents.
PARAS, C.J.:
As a fitting foreword, it may be recalled that on a previous
occasion, on August 26, 1949 to be exact, this court had
already passed upon the status of Commonwealth Act No.

671, approved on December 16, 1941, "declaring a state of

total emergency as a result of war involving the Philippines
and authorizing the President to promulgate rules and
regulations to meet such emergency." Five members held
that the Act ceased to be operative in its totality, on May 25,
1946 (when the Congress convened in special session)
according to Chief Justice Moran. Justice Bengzon, Padilla,
Montemayor, Reyes and Torres in effect concluded that the
powers delegated to the President had been withdrawn as to
matters already legislated upon by the Congress or on which
the latter had demonstrated its readiness or ability to act.
Executive Orders No. 62 (dated June 21, 1947) regulating
house and lot rentals, No. 192 (dated December 24, 1948)
regulating exports, Nos. 225 and 226 (dated June 15,1949)
the first appropriation funds for the operation of the
Government from July 1, 1949 to June 30, 1950, and the
second appropriating funds for election expenses in
November 1949, were therefore declared null and void for
having been issued after Act No. 671 had lapsed and/or after
the Congress had enacted legislation on the same subjects. 1
More or less the same considerations that influenced our
pronouncement of August 26, 1949 are and should be
controlling in the case now before us, wherein the petitioners
seek to invalidate Executive Orders Nos. 545 and 546 issued
on November 10, 1952, the first appropriating the sum of
P37,850,500 for urgent and essential public works, and the
second setting aside the sum of P11,367,600 for relief in the
provinces and cities visited by typhoons, floods, droughts,
earthquakes, volcanic action and other calamities.
Section 26 of Article VI of the Constitution provides that "in
times of war or other national emergency, the Congress may
by law authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to
promulgate rules and regulations to carry out a declared
national policy." Accordingly the National Assembly passed
Commonwealth Act No. 671, declaring (in section 1) the
national policy that "the existence of war between the United
States and other countries of Europe and Asia, which involves
the Philippines makes it necessary to invest the President
with extraordinary powers in order to meet the resulting
emergency," and (in section 2) authorizing the President,
"during the existence of the emergency, to promulgate such

rules and regulations as he may deem necessary to carry out

the national policy declared in section 1."
As the Act was expressly in pursuance of the constitutional
provision, it has to be assumed that the National Assembly
intended it to be only for a limited period. If it be contended
that the Act has not yet been duly repealed, and such step is
necessary to a cessation of the emergency powers delegated
to the President, the result would be obvious
unconstitutionality, since it may never be repealed by the
Congress, or if the latter ever attempts to do so, the
President may wield his veto. This eventuality has in fact
taken place when the President disapproved House Bill No.
727, repealing all Emergency Powers Acts. The situation will
make the Congress and the President or either as the
principal authority to determine the indefinite duration of the
delegation of legislative powers, in palpable repugnance to
the constitutional provision that any grant thereunder must
be for a limited period, necessarily to be fixed in the law itself
and not dependent upon the arbitrary or elastic will of either
the Congress or the President.
Although House Bill No. 727, had been vetoed by the
President and did not thereby become a regular statute, it
may at least be considered as a concurrent resolution of the
Congress formally declaring the termination of the
emergency powers. To contend that the Bill needed
presidential acquiescence to produce effect, would lead to
the anomalous, if not absurd, situation that, "while Congress
might delegate its power by a simple majority, it might not
be able to recall them except by two-third vote. In other
words, it would be easier for Congress to delegate its powers
than to take them back. This is not right and is not, and
ought not to be the law."2
Act No. 671 may be likened to an ordinary contract of
agency, whereby the consent of the agent is necessary only
in the sense that he cannot be compelled to accept the trust,
in the same way that the principal cannot be forced to keep
the relation in eternity or at the will of the agent. Neither can
it be suggested that the agency created under the Act is
coupled with interest.
The logical view consistent with constitutionality is to hold
that the powers lasted only during the emergency resulting
from the last world war which factually involved the

Philippines when Act No. 671 was passed on December 16,

1941. That emergency, which naturally terminated upon the
ending of the last world war, was contemplated by the
members of the National Assembly on the foresight that the
actual state of war could prevent it from holding its next
regular session. This is confirmed by the following statement
of President Quezon: "When it became evident that we were
completely helpless against air attack and that it was most
unlikely the Philippine Legislature would hold its next regular
session which was to open on January 1, 1942, the National
Assembly passed into history approving a resolution which
reaffirmed the abiding faith of the Filipino people in, and their
loyalty to, the United States. The Assembly also enacted a
law granting the President of the Philippines all the powers
that under the Philippine Constitution may be delegated to
him in time of war."3 When President Quezon said "in time of
war", he an doubtedly meant such factual war as that then
raging.
As early as July 26, 1948, the Congress categorically declared
that "since liberation conditions have gradually returned to
normal, but not so with regard to those who have suffered
the ravages of war and who have not received any relief for
the loss and destruction resulting therefrom," and that "the
emergency created by the last war as regards these war
sufferers being still existent, it is the declared policy of the
state that as to them the debt moratorium should be
continued in force in a modified form." 4 It is important to
remember that Republic Act No. 342 in which this declaration
was made bore the approval of the President. Indeed, the
latter in his speech delivered on July 4, 1949, plainly
proclaimed that "what emergencies it (the Republic) faces
today are incidental passing rains artificially created by
seasonal partisanship, very common among democracies but
will disappear with the rains that follow the thunderclaps not
later than November 8 of this year," an admission, that
such emergencies not only are not total but are not the result
of the last war as envisaged in Act No. 671.
If more is necessary to demonstrate the unmistakable stand
of the legislative department on the alleged existence of
emergency, reference may be had to House Bill No. 727,
hereinbefore referred to, repealing all Emergency Powers
Acts.

Moreover, section 26 of Article VI of the constitution, in virtue

of which Act No. 671 was passed, authorizes the delegation
of powers by the Congress (1) in times of war or (2) other
national emergency. The emergency expressly spoken of in
the title and in section 1 of the Act is one "in time of war," as
distinguished from "other national emergency" that may
arise as an after-effect of war or from natural causes such as
widespread earthquakes, typhoons, floods, and the like.
Certainly the typhoons that hit some provinces and cities in
1952 not only did not result from the last world war but were
and could not have been contemplated by the legislators. At
any rate, the Congress is available for necessary special
sessions, and it cannot let the people down without somehow
being answerable thereover.
As a matter of fact, the President, in returning to the
Congress without his signature House Bill No. 727, did not
invoke any emergency resulting from the last world war, but
only called attention to an impending emergency that may
be brought about by present complicated and troubled world
conditions, and to the fact that our own soldiers are fighting
and dying in Korea in defense of democracy and freedom and
for the preservation of our Republic. The emergency thus
feared cannot, however, be attributed to the war mentioned
in Act No. 671 and fought between Germany and Japan on
one side and the Allied Powers on the other; and indications
are that in the next world war, if any, the communist
countries will be aligned against the democracies. No
departure can be made from the national policy declared in
section 1 of Act No. 671. New powers may be granted as
often as emergencies contemplated in the Constitution arise.
There is no point in the argument that the Philippines is still
technically at war with Japan pending the ratification of the
peace treaty. In the first place, Act No. 671 referred to a
factual war. In the second place, the last world war was
between the United States and Japan, the Philippines being
involved only because it was then under American
sovereignty. In the third place, the United States had already
signed the peace treaty with Japan, and the Philippines has
become an independent country since July 4, 1946.
It is pointed out that the passage of House Bill No. 727 is
inconsistent with the claim that the emergency powers are
non-existent. But, from the debates in the House, it is patent

that the Bill had to be approved merely to remove all doubts,

especially because this Court had heretofore failed, for lack
of necessary majority, to declare Act No. 671 entirely
inoperative.
Reliance is placed on the petition of about seventy
Congressmen and Senators and on House Resolution No. 99,
urging the President to release and appropriate funds for
essential and urgent public works and for relief in the
typhoon-stricken areas. It is enough to state, in reply, that
the said petition and resolution cannot prevail over the force
and effect of House Bill No. 727 formally passed by two
chambers of the Congress. If faith can be accorded to the
resolution of one house, there is more reason for accepting
the solemn declarations of two houses.
Even under the theory of some members of this court that
insofar as the Congress had shown its readiness or ability to
act on a given matter, the emergency powers delegated to
the President had been pro tanto withdrawn, Executive
Orders Nos. 545 and 546 must be declared as having no legal
anchorage. We can take judicial notice of the fact that the
Congress has since liberation repeatedly been approving acts
appropriating funds for the operation of the Government,
public works, and many others purposes, with the result that
as to such legislative task the Congress must be deemed to
have long decided to assume the corresponding power itself
and to withdraw the same from the President. If the President
had ceased to have powers with regards to general
appropriations, none can remain in respect of special
appropriations; otherwise he may accomplish indirectly what
he cannot do directly. Besides, it is significant that Act No.
671 expressly limited the power of the President to that
continuing "in force" appropriations which would lapse or
otherwise become inoperative, so that, even assuming that
the Act is still effective, it is doubtful whether the President
can by executive orders make new appropriations. The
specific power "to continue in force laws and appropriations
which would lapse or otherwise become inoperative" is a
limitation on the general power "to exercise such other
powers as he may deem necessary to enable the
Government to fulfill its responsibilities and to maintain and
enforce its authority." Indeed, to hold that although the
Congress has, for about seven years since liberation, been

normally functioning and legislating on every conceivable

field, the President still has any residuary powers under the
Act, would necessarily lead to confusion and overlapping, if
not conflict.
Shelter may not be sought in the proposition that the
President should be allowed to exercise emergency powers
for the sake of speed and expediency in the interest and for
the welfare of the people, because we have the Constitution,
designed to establish a government under a regime of
justice, liberty and democracy. In line with such primordial
objective, our Government is democratic in form and based
on the system of separation of powers. Unless and until
changed or amended, we shall have to abide by the letter
and spirit of the Constitution and be prepared to accept the
consequences resulting from or inherent in disagreements
between, inaction or even refusal of the legislative and
executive departments. Much as it is imperative in some
cases to have prompt official action, deadlocks in and
slowness of democratic processes must be preferred to
concentration of powers in any one man or group of men for
obvious reasons. The framers of the Constitution, however,
had the vision of and were careful in allowing delegation of
legislative powers to the President for a limited period "in
times of war or other national emergency." They had thus
entrusted to the good judgment of the Congress the duty of
coping with any national emergency by a more efficient
procedure; but it alone must decide because emergency in
itself cannot and should not create power. In our democracy
the hope and survival of the nation lie in the wisdom and
unselfish patriotism of all officials and in their faithful
adherence to the Constitution.
Wherefore, Executive Orders Nos. 545 and 546 are hereby
declared null and void, and the respondents are ordered to
desist from appropriating, releasing, allotting, and expending
the public funds set aside therein. So ordered, without costs.
Feria, Pablo and Tuason, JJ., concur.
Bengzon, J., concur in the result.

EN BANC
PROF. RANDOLF S. DAVID, LORENZO TAADA III,
RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL
RUIZ BUTUYAN, ROGER R. RAYEL, GARY S.
MALLARI,
ROMEL REGALADO BAGARES,
CHRISTOPHER F.C. BOLASTIG,
Petitioners,
- versus GLORIA MACAPAGAL-ARROYO,
AS
PRESIDENT AND COMMANDER-IN-CHIEF,
EXECUTIVE SECRETARY EDUARDO ERMITA, HON.
AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF

G.R. No. 171396

Present:

PANGANIBAN, C
PUNO,
QUISUMBING,
YNARES-SANTIA
SANDOVAL-GUT
CARPIO,
AUSTRIA-MARTI
CORONA,
CARPIO MORAL
CALLEJO, SR.,
AZCUNA,

OF STAFF, ARMED FORCES OF THE PHILIPPINES,

DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF,
PHILIPPINE NATIONAL POLICE,
Respondents.
x-------------------------------------------------x
NIEZ CACHO-OLIVARES AND TRIBUNE
PUBLISHING CO., INC.,
Petitioners,
- versus HONORABLE SECRETARY EDUARDO ERMITA AND
HONORABLE DIRECTOR GENERAL ARTURO C.
LOMIBAO,
Respondents.
x-------------------------------------------------x
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A.
SANTIAGO, TEODORO A. CASINO, AGAPITO A.
AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO,
MUJIV S. HATAMAN, JUAN EDGARDO ANGARA,
TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J.
VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS,
RENATO B. MAGTUBO, JUSTIN MARC SB.
CHIPECO, ROILO GOLEZ, DARLENE ANTONINOCUSTODIO, LORETTA ANN P. ROSALES, JOSEL G.
VIRADOR, RAFAEL V. MARIANO, GILBERT C.
REMULLA, FLORENCIO G. NOEL, ANA THERESIA
HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS,
MARVIC M.V.F. LEONEN, NERI JAVIER
COLMENARES, MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY
AMADO GAT INCIONG,
Petitioners,
- versus EDUARDO R. ERMITA, EXECUTIVE SECRETARY,
AVELINO J. CRUZ, JR., SECRETARY, DND
RONALDO V. PUNO, SECRETARY, DILG,

TINGA,
GENEROSO SENGA, AFP CHIEF OF STAFF,
CHICO-NAZARIO,ARTURO LOMIBAO, CHIEF PNP,
GARCIA, and
Respondents.
VELASCO, JJ.
x-------------------------------------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS
Promulgated: CHAIRPERSON ELMER C. LABOG AND
SECRETARY GENERAL JOEL MAGLUNSOD,
May 3, 2006
NATIONAL FEDERATION OF LABOR UNIONS
KILUSANG MAYO UNO (NAFLU-KMU),
REPRESENTED BY ITS NATIONAL PRESIDENT,
G.R. No. 171409JOSELITO V. USTAREZ, ANTONIO C. PASCUAL,
SALVADOR T. CARRANZA, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND ROQUE M. TAN,
Petitioners,

G.R. No. 171483

- versus -

G.R. No. 171485 HER EXCELLENCY, PRESIDENT GLORIA

MACAPAGAL-ARROYO, THE HONORABLE
EXECUTIVE SECRETARY, EDUARDO ERMITA, THE
CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, GENEROSO SENGA, AND THE PNP
DIRECTOR GENERAL, ARTURO LOMIBAO,
Respondents.
x-------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC. (ALG),
Petitioner,
- versus EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT.
GEN. GENEROSO SENGA, AND DIRECTOR
GENERAL ARTURO LOMIBAO,
Respondents.
x-------------------------------------------------x
JOSE ANSELMO I. CADIZ, FELICIANO M.

BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M.

AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C.
ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C.
BERNABE, BERNARD L. DAGCUTA, ROGELIO V.
GARCIA AND INTEGRATED BAR OF THE
PHILIPPINES (IBP),
Petitioners,

G.R. No. 171424

G.R. No. 171400 x--------------------------------------------------------------------------------------------x

- versus HON. EXECUTIVE SECRETARY EDUARDO ERMITA,

GENERAL GENEROSO SENGA, IN HIS CAPACITY
AS AFP CHIEF OF STAFF, AND DIRECTOR
GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS
PNP CHIEF,
Respondents.
x-------------------------------------------------x
LOREN B. LEGARDA,
Petitioner,
- versus GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY
AS PRESIDENT AND COMMANDER-IN-CHIEF;
ARTURO LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE PHILIPPINE
NATIONAL POLICE (PNP); GENEROSO SENGA, IN
HIS CAPACITY AS CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES (AFP); AND
EDUARDO ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY,
Respondents.

DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather
than rigid formula are necessary. [1] Superior strength the
use of force cannot make wrongs into rights. In this
regard, the courts should be vigilant in safeguarding the
constitutional rights of the citizens, specifically their liberty.
G.R. No. 171489
Chief Justice Artemio V. Panganibans philosophy of liberty is
thus most relevant. He said: In cases involving liberty,
the scales of justice should weigh heavily against
government and in favor of the poor, the oppressed,
the marginalized, the dispossessed and the
weak. Laws and actions that restrict fundamental rights
come to the courts with a heavy presumption against their
constitutional validity.[2]
These seven (7) consolidated petitions for certiorari and
prohibition allege that in issuing Presidential Proclamation
No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5),
President Gloria Macapagal-Arroyo committed grave abuse of
discretion. Petitioners contend that respondent officials of
the Government, in their professed efforts to defend and
preserve democratic institutions, are actually trampling upon
the very freedom guaranteed and protected by the
Constitution. Hence, such issuances are void for being
unconstitutional.

Once again, the Court is faced with an age-old but

persistently modern problem. How does the Constitution of a
free people combine the degree of liberty, without which,
law becomes tyranny, with the degree of law, without which,
liberty becomes license?[3]
On February 24, 2006, as the nation celebrated the
20th Anniversary of the Edsa People Power I, President Arroyo
issued PP 1017 declaring a state of national emergency,
thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of
the Republic of the Philippines and Commander-in-Chief of
the Armed Forces of the Philippines, by virtue of the powers
vested upon me by Section 18, Article 7 of the Philippine
Constitution which states that: The President. . . whenever
it becomes necessary, . . . may call out (the) armed forces to
prevent or suppress. . .rebellion. . ., and in my capacity as
their Commander-in-Chief, do hereby command the
Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress
all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to
all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction;
and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National
Emergency.

WHEREAS, these conspirators have repeatedly tried to bring

down the President;
WHEREAS, the claims of these elements have been
recklessly magnified by certain segments of the
national media;
WHEREAS, this series of actions is hurting the Philippine
State by obstructing governance including hindering the
growth of the economy and sabotaging the peoples
confidence in government and their faith in the future
of this country;
WHEREAS, these actions are adversely affecting the
economy;
WHEREAS, these activities give totalitarian forces of
both the extreme Left and extreme Right the opening
to intensify their avowed aims to bring down the
democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes
the defense and preservation of the democratic institutions
and the State the primary duty of Government;
WHEREAS, the activities above-described, their
consequences, ramifications and collateral effects constitute
a clear and present danger to the safety and the integrity
of the Philippine State and of the Filipino people;

She cited the following facts as bases:

WHEREAS, over these past months, elements in
the political opposition have conspired with
authoritarians of the extreme Left represented by the
NDF-CPP-NPA and the extreme Right, represented by
military adventurists the historical enemies of the
democratic Philippine State who are now in a tactical
alliance and engaged in a concerted and systematic
conspiracy, over a broad front, to bring down the duly
constituted Government elected in May 2004;

On the same day, the President issued G. O. No. 5

implementing PP 1017, thus:
WHEREAS, over these past months, elements in the
political opposition have conspired with authoritarians of the
extreme Left, represented by the NDF-CPP-NPA and the
extreme Right, represented by military adventurists - the
historical enemies of the democratic Philippine State and
who are now in a tactical alliance and engaged in a
concerted and systematic conspiracy, over a broad front, to

bring down the duly-constituted Government elected in May

2004;
WHEREAS, these conspirators have repeatedly tried
to bring down our republican government;
WHEREAS, the claims of these elements have been
recklessly magnified by certain segments of the national
media;
WHEREAS, these series of actions is hurting the Philippine
State by obstructing governance, including hindering the
growth of the economy and sabotaging the peoples
confidence in the government and their faith in the future of
this country;
WHEREAS, these actions are adversely affecting the
economy;
WHEREAS, these activities give totalitarian forces; of both
the extreme Left and extreme Right the opening to intensify
their avowed aims to bring down the democratic Philippine
State;
WHEREAS, Article 2, Section 4 of our Constitution makes the
defense and preservation of the democratic institutions and
the State the primary duty of Government;
WHEREAS, the activities above-described, their
consequences, ramifications and collateral effects constitute
a clear and present danger to the safety and the integrity of
the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has
been issued declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by
virtue of the powers vested in me under the Constitution as
President of the Republic of the Philippines, and Commanderin-Chief of the Republic of the Philippines, and pursuant to
Proclamation No. 1017 dated February 24, 2006, do hereby
call upon the Armed Forces of the Philippines (AFP) and the

Philippine National Police (PNP), to prevent and suppress acts

of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the
Chief of the PNP, as well as the officers and men of the AFP
and PNP, to immediately carry out the necessary and
appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of
a state of national emergency and after all these petitions
had been filed, the President lifted PP 1017. She issued
Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section
17, Article XII of the Constitution, Proclamation No. 1017
dated February 24, 2006, was issued declaring a state of
national emergency;
WHEREAS, by virtue of General Order No.5 and No.6
dated February 24, 2006, which were issued on the basis of
Proclamation No. 1017, the Armed Forces of the Philippines
(AFP) and the Philippine National Police (PNP), were directed
to maintain law and order throughout the Philippines, prevent
and suppress all form of lawless violence as well as any act of
rebellion and to undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively
prevented, suppressed and quelled the acts lawless violence
and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGALARROYO, President of the Republic of the Philippines, by
virtue of the powers vested in me by law, hereby declare
that the state of national emergency has ceased to
exist.
In their presentation of the factual bases of PP 1017 and G.O.
No. 5, respondents stated that the proximate cause behind
the executive issuances was the conspiracy among some
military officers, leftist insurgents of the New Peoples Army

(NPA), and some members of the political opposition in a plot

to unseat or assassinate President Arroyo.[4] They considered
the aim to oust or assassinate the President and take-over
the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the
Solicitor General specified the facts leading to the issuance of
PP 1017 and
G.O. No. 5. Significantly, there was
no refutation from petitioners counsels.
The Solicitor General argued that the intent of the
Constitution is to give full discretionary powers to the
President in determining the necessity of calling out the
armed forces. He emphasized that none of the petitioners
has shown that PP 1017 was without factual bases. While he
explained that it is not respondents task to state the facts
behind the questioned Proclamation, however, they are
presenting the same, narrated hereunder, for the elucidation
of the issues.
On January 17, 2006, Captain Nathaniel Rabonza
and
First Lieutenants Sonny Sarmiento, Lawrence
San Juan and Patricio Bumidang, members of the Magdalo
Group indicted in the Oakwood mutiny, escaped their
detention cell in Fort Bonifacio, Taguig City. In a public
statement, they vowed to remain defiant and to elude arrest
at all costs. They called upon the people to show and
proclaim our displeasure at the sham regime. Let us
demonstrate our disgust, not only by going to the streets in
protest, but also by wearing red bands on our left arms. [5]
On February 17, 2006, the authorities got hold of a document
entitled Oplan Hackle I which detailed plans for bombings
and attacks during the Philippine Military Academy Alumni
Homecoming in Baguio City. The plot was to assassinate
selected targets including some cabinet members and
President Arroyo herself.[6] Upon the advice of her security,
President Arroyo decided not to attend the Alumni
Homecoming. The next day, at the height of the celebration,
a bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a
communist safehouse in Batangas province. Found in his
possession were two (2) flash disks containing minutes of the
meetings between members of the Magdalo Group and the
National Peoples Army (NPA), a tape recorder, audio

cassette cartridges, diskettes, and copies of subversive

documents.[7] Prior to his arrest, Lt. San Juan announced
through DZRH that the Magdalos D-Day would be on
February 24, 2006, the 20th Anniversary of Edsa I.
On February 23, 2006, PNP Chief Arturo Lomibao intercepted
information that members of the PNP- Special Action Force
were planning to defect. Thus, he immediately ordered SAF
Commanding General Marcelino Franco, Jr. to disavow any
defection. The latter promptly obeyed and issued a public
statement: All SAF units are under the effective control of
responsible and trustworthy officers with proven integrity
and unquestionable loyalty.
On the same day, at the house of former Congressman
Peping Cojuangco, President Cory Aquinos brother,
businessmen and mid-level government officials plotted
moves to bring down the Arroyo administration. Nelly
Sindayen of TIME Magazine reported that Pastor Saycon,
longtime Arroyo critic, called a U.S. government official about
his groups plans if President Arroyo is ousted. Saycon also
phoned a man code-named Delta. Saycon identified him as
B/Gen. Danilo Lim, Commander of the Armys elite Scout
Ranger. Lim said it was all systems go for the planned
movement against Arroyo.[8]
B/Gen. Danilo Lim and Brigade Commander Col. Ariel
Querubin confided to Gen. Generoso Senga, Chief of Staff of
the Armed Forces of the Philippines (AFP), that a huge
number of soldiers would join the rallies to provide a critical
mass and armed component to the Anti-Arroyo protests to be
held on February 24, 2005. According to these two (2)
officers, there was no way they could possibly stop the
soldiers because they too, were breaking the chain of
command to join the forces foist to unseat the
President. However, Gen. Senga has remained faithful to his
Commander-in-Chief and to the chain of command. He
immediately took custody of B/Gen. Lim and directed Col.
Querubin to return to the Philippine Marines Headquarters in
Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and
revolutionary work within the military and the police
establishments in order to forge alliances with its members
and key officials. NPA spokesman Gregorio Ka Roger
Rosal declared: The Communist Party and revolutionary

movement and the entire people look forward to the

possibility in the coming year of accomplishing its immediate
task of bringing down the Arroyo regime; of rendering it to
weaken and unable to rule that it will not take much longer
to end it.[9]
On the other hand, Cesar Renerio, spokesman for the
National Democratic Front (NDF) at North Central Mindanao,
publicly announced: Anti-Arroyo groups within the military
and police are growing rapidly, hastened by the economic
difficulties suffered by the families of AFP officers and
enlisted personnel who undertake counter-insurgency
operations in the field. He claimed that with the forces of
the national democratic movement, the anti-Arroyo
conservative political parties, coalitions, plus the groups that
have been reinforcing since June 2005, it is probable that the
Presidents ouster is nearing its concluding stage in the first
half of 2006.
Respondents further claimed that the bombing of
telecommunication towers and cell sites in Bulacan and
Bataan was also considered as additional factual basis for the
issuance of PP 1017 and G.O. No. 5. So is the raid of an
army outpost in Benguet resulting in the death of three (3)
soldiers. And also the directive of the Communist Party of
the Philippines ordering its front organizations to join 5,000
Metro Manila radicals and 25,000 more from the provinces in
mass protests.[10]
By midnight of February 23, 2006, the President convened
her security advisers and several cabinet members to assess
the gravity of the fermenting peace and order situation. She
directed both the AFP and the PNP to account for all their
men and ensure that the chain of command remains solid
and undivided. To protect the young students from any
possible trouble that might break loose on the streets, the
President suspended classes in all levels in the entire
National Capital Region.
For their part, petitioners cited the events that
followed after the issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the
cancellation of all programs and activities related to the
20th anniversary celebration of Edsa People Power I; and
revoked the permits to hold rallies issued earlier by the local
governments. Justice Secretary Raul Gonzales stated that

political rallies, which to the Presidents mind were

organized for purposes of destabilization, are
cancelled. Presidential Chief of Staff Michael Defensor
announced that warrantless arrests and take-over of
facilities, including media, can already be implemented.[11]
Undeterred by the announcements that rallies and public
assemblies would not be allowed, groups of protesters
(members of Kilusang Mayo Uno [KMU] and National
Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]),
marched from various parts of Metro Manila with the
intention of converging at the EDSA shrine. Those who were
already near the EDSA site were violently dispersed by huge
clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear
gas to stop and break up the marching groups, and scatter
the massed participants. The same police action was used
against the protesters marching forward to Cubao, Quezon
City and to the corner of Santolan Street and EDSA. That
same evening, hundreds of riot policemen broke up an EDSA
celebration rally held along Ayala Avenue and Paseo de Roxas
Street in Makati City.[12]
According to petitioner Kilusang Mayo Uno, the police cited
PP 1017 as the ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police
arrested (without warrant) petitioner Randolf S. David, a
professor at the University of the Philippines and newspaper
columnist. Also arrested was his companion, Ronald Llamas,
president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006,
operatives of the Criminal Investigation and Detection Group
(CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5,
raided the Daily Tribune offices in Manila. The raiding team
confiscated news stories by reporters, documents, pictures,
and mock-ups of the Saturday issue. Policemen from Camp
Crame in Quezon City were stationed inside the editorial and
business offices of the newspaper; while policemen from the
Manila Police District were stationed outside the building.
[13]

A few minutes after the search and seizure at the Daily

Tribune offices, the police surrounded the premises of
another pro-opposition paper, Malaya, and its sister
publication, the tabloid Abante.

The raid, according to Presidential Chief of Staff Michael

Defensor, is meant to show a strong presence, to tell
media outlets not to connive or do anything that would help
the rebels in bringing down this government. The PNP
warned that it would take over any media organization that
would not follow standards set by the government during
the state of national emergency. Director General Lomibao
stated that if they do not follow the standards and the
standards are - if they would contribute to instability in the
government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 we will recommend a
takeover. National Telecommunications Commissioner
Ronald Solis urged television and radio networks
tocooperate with the government for the duration of the
state of national emergency. He asked for balanced
reporting from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He
warned that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules set out for
media coverage when the national security is threatened. [14]
Also, on February 25, 2006, the police arrested Congressman
Crispin Beltran, representing the Anakpawis Party and
Chairman of Kilusang Mayo Uno (KMU), while leaving his
farmhouse in Bulacan. The police showed a warrant for his
arrest dated 1985. Beltrans lawyer explained that the
warrant, which stemmed from a case of inciting to rebellion
filed during the Marcos regime, had long been
quashed. Beltran, however, is not a party in any of these
petitions.
When members of petitioner KMU went to Camp Crame to
visit Beltran, they were told they could not be admitted
because of PP 1017 and G.O. No. 5. Two members were
arrested and detained, while the rest were dispersed by the
police.
Bayan Muna Representative Satur Ocampo eluded arrest
when the police went after him during a public forum at the
Sulo Hotel in Quezon City. But his two drivers, identified as
Roel and Art, were taken into custody.
Retired Major General Ramon Montao, former head of the
Philippine Constabulary, was arrested while with his wife and
golfmates at the Orchard Golf and Country Club in Dasmari
as, Cavite.

Attempts were made to arrest Anakpawis Representative

Satur Ocampo, Representative Rafael Mariano, Bayan
Muna Representative Teodoro Casio and Gabriela
Representative Liza Maza. Bayan Muna Representative Josel
Virador was arrested at the PAL Ticket Office in Davao
City. Later, he was turned over to the custody of the House
of Representatives where the Batasan 5 decided to stay
indefinitely.
Let it be stressed at this point that the alleged violations of
the rights of Representatives Beltran, Satur Ocampo, et al.,
are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring
that the state of national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the
constitutionality of PP 1017 and G.O. No. 5 were filed with
this Court against the above-named respondents. Three (3)
of these petitions impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al.
assailed PP 1017 on the grounds that (1) it encroaches on
the emergency powers of Congress; (2) it is a subterfuge to
avoid the constitutional requirements for the imposition of
martial law; and (3) it violates the constitutional guarantees
of freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares
and Tribune Publishing Co., Inc. challenged the CIDGs act of
raiding the Daily Tribune offices as a clear case of
censorship or prior restraint. They also claimed that
the term emergency refers only to tsunami, typhoon,
hurricane and similar occurrences, hence, there is
absolutely no emergency that warrants the issuance of PP
1017.
In G.R. No. 171485, petitioners herein are Representative
Francis Joseph G. Escudero, and twenty one (21) other
members of the House of Representatives, including
Representatives Satur Ocampo, Rafael Mariano, Teodoro
Casio, Liza Maza, and Josel Virador. They asserted that PP
1017 and G.O. No. 5 constitute usurpation of legislative
powers; violation of freedom of expression and a
declaration of martial law. They alleged that President
Arroyo gravely abused her discretion in calling out the
armed forces without clear and verifiable factual basis of the

possibility of lawless violence and a showing that there is

necessity to do so.
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and
their members averred that PP 1017 and G.O. No. 5 are
unconstitutional because (1) they arrogate unto President
Arroyo the power to enact laws and decrees; (2) their
issuance was without factual basis; and (3) they violate
freedom of expression and the right of the people to
peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc.
(ALGI) alleged that PP 1017 and G.O. No. 5 are
unconstitutional because they violate (a) Section 4[15] of
Article II, (b)Sections 1,[16] 2,[17] and 4[18] of Article
III, (c) Section 23[19] of Article VI, and (d) Section 17[20] of
Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et
al., alleged that PP 1017 is an arbitrary and unlawful
exercise by the President of her Martial Law powers. And
assuming that PP 1017 is not really a declaration of Martial
Law, petitioners argued that it amounts to an exercise by
the President of emergency powers without congressional
approval. In addition, petitioners asserted that PP 1017
goes beyond the nature and function of a proclamation as
defined under the Revised Administrative Code.
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda
maintained that PP 1017 and G.O. No. 5 are
unconstitutional for being violative of the freedom of
expression, including its cognate rights such as freedom of
the press and the right to access to information on matters
of public concern, all guaranteed under Article III, Section 4
of the 1987 Constitution. In this regard, she stated that
these issuances prevented her from fully prosecuting her
election protest pending before the Presidential Electoral
Tribunal.
In respondents Consolidated Comment, the Solicitor
General countered that: first, the petitions should be
dismissed for being
moot; second, petitioners in G.R.
Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.),
171485 (Escudero et al.) and 171489 (Cadiz et al.) have no
legal standing; third, it is not necessary for petitioners to
implead President Arroyo as respondent; fourth, PP 1017
has constitutional and legal basis; and fifth, PP 1017 does not

violate the peoples right to free expression and redress of

grievances.
On March 7, 2006, the Court conducted oral arguments
and heard the parties on the above interlocking issues which
may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions
moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R.
Nos. 171400 (ALGI), 171483 (KMU et
al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal
standing.
B.
SUBSTANTIVE:
1) Whether the Supreme Court can review the factual
bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A.

PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle
One of the greatest contributions of the American
system to this country is the concept of judicial review
enunciated in Marbury v. Madison.[21] This concept rests on
the extraordinary simple foundation -The Constitution is the supreme law. It was ordained by
the people, the ultimate source of all political authority. It
confers limited powers on the national government. x x x If
the government consciously or unconsciously
oversteps these limitations there must be some
authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and
preserve inviolate the will of the people as expressed
in the Constitution. This power the courts exercise.
This is the beginning and the end of the theory of
judicial review.[22]
But the power of judicial review does not repose upon
the courts a self-starting capacity.[23] Courts may exercise

such power only when the following requisites are

present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be
raised at the earliest opportunity; and fourth, the decision of
the constitutional question must be necessary to the
determination of the case itself.[24]
Respondents maintain that the first and second requisites are
absent, hence, we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal
right, an opposite legal claims susceptible of judicial
resolution. It is definite and concrete, touching the legal
relations of parties having adverse legal interest; a real
and substantial controversy admitting of specific relief.
[25]
The Solicitor General refutes the existence of such actual
case or controversy, contending that the present petitions
were rendered moot and academic by President Arroyos
issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, [26] so
that a declaration thereon would be of no practical use or
value.[27] Generally, courts decline jurisdiction over such
case[28] or dismiss it on ground of mootness. [29]
The Court holds that President Arroyos issuance of PP 1021
did not render the present petitions moot and
academic. During the eight (8) days that PP 1017 was
operative, the police officers, according to petitioners,
committed illegal acts in implementing it. Are PP 1017 and
G.O. No. 5 constitutional or valid? Do they justify
these alleged illegal acts? These are the vital issues that
must be resolved in the present petitions. It must be
stressed that an unconstitutional act is not a law, it
confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation,
inoperative.[30]
The moot and academic principle is not a magical formula
that can automatically dissuade the courts in resolving a
case. Courts will decide cases, otherwise moot and
academic, if: first,there is a grave violation of the
Constitution;[31] second, the exceptional character of the
situation and the paramount public interest is involved;

[32]

third, when constitutional issue raised requires

formulation of controlling principles to guide the bench, the
bar, and the public;[33] and fourth, the case is capable of
repetition yet evading review.[34]
All the foregoing exceptions are present here and justify this
Courts assumption of jurisdiction over the instant
petitions. Petitioners alleged that the issuance of PP 1017
and G.O. No. 5 violates the Constitution. There is no question
that the issues being raised affect the publics interest,
involving as they do the peoples basic rights to freedom of
expression, of assembly and of the press. Moreover, the
Court has the duty to formulate guiding and controlling
constitutional precepts, doctrines or rules. It has the
symbolic function of educating the bench and the bar, and in
the present petitions, the military and the police, on the
extent of the protection given by constitutional guarantees.
[35]
And lastly, respondents contested actions are capable of
repetition. Certainly, the petitions are subject to
judicial review.
In their attempt to prove the alleged mootness of this case,
respondents cited Chief Justice Artemio V. Panganibans
Separate Opinion in Sanlakas v. Executive Secretary.
[36]
However, they failed to take into account the Chief
Justices very statement that an otherwise moot case
may still be decided provided the party raising it in a
proper case has been and/or continues to be prejudiced or
damaged as a direct result of its issuance. The present
case falls right within this exception to the mootness rule
pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various
personalities, the Court deems it imperative to have a more
than passing discussion on legal standing or locus standi.
Locus standi is defined as a right of appearance in a
court of justice on a given question.[37] In private suits,
standing is governed by the real-parties-in interest rule as
contained in Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that every action
must be prosecuted or defended in the name of the
real party in interest. Accordingly, the real-party-in
interest is the party who stands to be benefited or

injured by the judgment in the suit or the party

entitled to the avails of the suit.[38] Succinctly put, the
plaintiffs standing is based on his own right to the relief
sought.
The difficulty of determining locus standi arises
in public suits.
Here, the plaintiff who asserts a public
right in assailing an allegedly illegal official action, does so
as a representative of the general public. He may be a
person who is affected no differently from any other
person. He could be suing as a stranger, or in the
category of a citizen, or taxpayer. In either case, he
has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the
securing of relief as a citizen or taxpayer.
Case law in most jurisdictions now allows both
citizen and taxpayer standing in public actions. The
distinction was first laid down in Beauchamp v. Silk,[39] where
it was held that the plaintiff in a taxpayers suit is in a
different category from the plaintiff in a citizens suit. In
the former, the plaintiff is affected by the expenditure
of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New
York Supreme Court in People ex rel Case v. Collins:[40] In
matter of mere public right, howeverthe people are
the real partiesIt is at least the right, if not the duty,
of every citizen to interfere and see that a public
offence be properly pursued and punished, and that a
public grievance be remedied. With respect to
taxpayers suits, Terr v. Jordan[41] held that the right of a
citizen and a taxpayer to maintain an action in courts
to restrain the unlawful use of public funds to his
injury cannot be denied.
However, to prevent just about any person from
seeking judicial interference in any official policy or act with
which he disagreed with, and thus hinders the activities of
governmental agencies engaged in public service, the United
State Supreme Court laid down the more stringent direct
injury test in Ex Parte Levitt,[42] later reaffirmed in Tileston
v. Ullman.[43] The same Court ruled that for a private

individual to invoke the judicial power to determine the

validity of an executive or legislative action, he must show
that he has sustained a direct injury as a result of that
action, and it is not sufficient that he has a general
interest common to all members of the public.
This Court adopted the direct injury test in our
jurisdiction. In People v. Vera,[44] it held that the person who
impugns the validity of a statute must have a personal
and substantial interest in the case such that he has
sustained, or will sustain direct injury as a
result. The Vera doctrine was upheld in a litany of cases,
such as, Custodio v. President of the Senate,[45]Manila Race
Horse Trainers Association v. De la Fuente,[46] Pascual v.
Secretary of Public Works[47] and Anti-Chinese League of the
Philippines v. Felix.[48]
However, being a mere procedural technicality, the
requirement of locus standi may be waived by the Court in
the exercise of its discretion. This was done in the 1949
Emergency Powers Cases, Araneta v. Dinglasan,[49] where
the transcendental importance of the cases prompted
the Court to act liberally. Such liberality was neither a rarity
nor accidental. In Aquino v. Comelec,[50] this Court resolved
to pass upon the issues raised due to the far-reaching
implications of the petition notwithstanding its categorical
statement that petitioner therein had no personality to file
the suit. Indeed, there is a chain of cases where this liberal
policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute
actions involving the constitutionality or validity of laws,
regulations and rulings.[51]
Thus, the Court has adopted a rule that even where the
petitioners have failed to show direct injury, they have been
allowed to sue under the principle of transcendental
importance. Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court
ruled that the enforcement of the constitutional right
to information and the equitable diffusion of natural
resources are matters of transcendental importance
which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the
Court held that given the transcendental importance

of the issues involved, the Court may relax the

standing requirements and allow the suit to prosper
despite the lack of direct injury to the parties seeking
judicial review of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,[54] while the Court noted that
the petitioners may not file suit in their capacity as taxpayers
absent a showing that Balikatan 02-01 involves the
exercise of Congress taxing or spending powers,
it
reiterated its ruling in Bagong Alyansang
Makabayan v. Zamora,[55] that in cases of transcendental
importance, the cases must be settled promptly and
definitely and standing requirements may be relaxed.
By way of summary, the following rules may be culled from
the cases decided by this Court. Taxpayers, voters,
concerned citizens, and legislators may be accorded standing
to sue, provided that the following requirements are met:
(1)
the cases involve constitutional issues;
(2)
for taxpayers, there must be a claim of
illegal disbursement of public funds or that the tax measure
is unconstitutional;
(3)
for voters, there must be a showing of
obvious interest in the validity of the election law in question;
(4)
for concerned citizens, there must be a
showing that the issues raised are of transcendental
importance which must be settled early; and
(5)
for legislators, there must be a claim that
the official action complained of infringes upon their
prerogatives as legislators.
Significantly, recent decisions show a certain toughening in
the Courts attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the
status of Kilosbayan as a peoples organization does not
give it the requisite personality to question the validity of the
on-line lottery contract, more so where it does not raise any
issue of constitutionality. Moreover, it cannot sue as a
taxpayer absent any allegation that public funds are being
misused. Nor can it sue as a concerned citizen as it does not
allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the
Philippines, Inc. v. Comelec,[57] the Court reiterated the

direct injury test with respect to concerned citizens

cases involving constitutional issues. It held that there
must be a showing that the citizen personally suffered some
actual or threatened injury arising from the alleged illegal
official act.
In Lacson v. Perez,[58] the Court ruled that one of the
petitioners, Laban ng Demokratikong Pilipino (LDP), is not a
real party-in-interest as it had not demonstrated any injury to
itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,[59] the Court ruled that
only the petitioners who are members of Congress have
standing to sue, as they claim that the Presidents
declaration of a state of rebellion is a usurpation of the
emergency powers of Congress, thus impairing their
legislative powers. As to petitioners Sanlakas, Partido
Manggagawa, and Social Justice Society, the Court declared
them to be devoid of standing, equating them with the LDP
in Lacson.
Now, the application of the above principles to the present
petitions.
The locus standi of petitioners in G.R. No. 171396,
particularly David and Llamas, is beyond doubt. The same
holds true with petitioners in G.R. No. 171409, CachoOlivares and TribunePublishing Co. Inc. They alleged direct
injury resulting from illegal arrest and unlawful search
committed by police operatives pursuant to PP 1017. Rightly
so, the Solicitor General does not question their legal
standing.
In G.R. No. 171485, the opposition Congressmen
alleged there was usurpation of legislative powers. They
also raised the issue of whether or not the concurrence of
Congress is necessary whenever the alarming powers
incident to Martial Law are used. Moreover, it is in the
interest of justice that those affected by PP 1017 can be
represented by their Congressmen in bringing to the
attention of the Court the alleged violations of their basic
rights.
In G.R. No. 171400, (ALGI), this Court applied the
liberality rule in Philconsa v. Enriquez,[60] Kapatiran Ng Mga
Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,
[61]
Association of Small Landowners in the Philippines, Inc. v.
Secretary of Agrarian Reform,[62] Basco v. Philippine

Amusement and Gaming Corporation,[63] and Taada v.

Tuvera,[64] that when the issue concerns a public right, it is
sufficient that the petitioner is a citizen and has an interest in
the execution of the laws.
In G.R. No. 171483, KMUs assertion that PP 1017 and
G.O. No. 5 violated its right to peaceful assembly may be
deemed sufficient to give it legal standing. Organizations
may be granted standing to assert the rights of their
members.[65] We take judicial notice of the announcement
by the Office of the President banning all rallies and
canceling all permits for public assemblies following the
issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are
national officers of the Integrated Bar of the Philippines (IBP)
have no legal standing, having failed to allege any direct or
potential injury which the IBP as an institution or its members
may suffer as a consequence of the issuance of PP No. 1017
and G.O. No. 5. In Integrated Bar of the Philippines v.
Zamora,[66] the Court held that the mere invocation by the
IBP of its duty to preserve the rule of law and nothing more,
while undoubtedly true, is not sufficient to clothe it with
standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. However, in
view of the transcendental importance of the issue, this
Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a
taxpayer to file the instant petition as there are no
allegations of illegal disbursement of public funds. The fact
that she is a former Senator is of no consequence. She can
no longer sue as a legislator on the allegation that her
prerogatives as a lawmaker have been impaired by PP 1017
and G.O. No. 5. Her claim that she is a media personality
will not likewise aid her because there was no showing that
the enforcement of these issuances prevented her from
pursuing her occupation. Her submission that she has
pending electoral protest before the Presidential Electoral
Tribunal is likewise of no relevance. She has not sufficiently
shown that PP 1017 will affect the proceedings or result of
her case. But considering once more the transcendental
importance of the issue involved, this Court may relax the
standing rules.

It must always be borne in mind that the question of locus

standi is but corollary to the bigger question of proper
exercise of judicial power. This is the underlying legal tenet of
the liberality doctrine on legal standing. It cannot be
doubted that the validity of PP No. 1017 and G.O. No. 5 is a
judicial question which is of paramount importance to the
Filipino people. To paraphrase Justice Laurel, the whole of
Philippine society now waits with bated breath the ruling of
this Court on this very critical matter. The petitions thus call
for the application of the transcendental importance
doctrine, a relaxation of the standing requirements for the
petitioners in the PP 1017 cases.
This Court holds that all the petitioners herein have locus
standi.
Incidentally, it is not proper to implead President Arroyo as
respondent. Settled is the doctrine that the President, during
his tenure of office or actual incumbency, [67] may not be sued
in anycivil or criminal case, and there is no need to provide
for it in the Constitution or law. It will degrade the dignity of
the high office of the President, the Head of State, if he can
be dragged into court litigations while serving as
such. Furthermore, it is important that he be freed from any
form of harassment, hindrance or distraction to enable him to
fully attend to the performance of his official duties and
functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs
his usefulness in the discharge of the many great and
important duties imposed upon him by the Constitution
necessarily impairs the operation of the
Government. However, this does not mean that the
President is not accountable to anyone. Like any other
official, he remains accountable to the people [68] but he may
be removed from office only in the mode provided by law and
that is by impeachment.[69]
B. SUBSTANTIVE
I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual

basis. Hence, it was not necessary for President Arroyo
to issue such Proclamation.
The issue of whether the Court may review the factual bases
of the Presidents exercise of his Commander-in-Chief power
has reached its distilled point - from the indulgent days
of Barcelon v. Baker[70]
and Montenegro v.
Castaneda[71] to the volatile era of Lansang v.
Garcia,
[72]
[73]
[74]
Aquino, Jr. v. Enrile,
and Garcia-Padilla v. Enrile.
The
tug-of-war always cuts across the line defining political
questions, particularly those questions in regard to which
full discretionary authority has been delegated to the
legislative or executive branch of the
government.[75] Barcelon and Montenegro were in unison in
declaring that the authority to decide whether an
exigency has arisen belongs to the President and his
decision is final and conclusive on the
courts. Lansang took the opposite view. There, the
members of the Court were unanimous in the conviction that
the Court has the authority to inquire into the existence of
factual bases in order to determine their constitutional
sufficiency. From the principle of separation of powers,
it shifted the focus to the system of checks and
balances, under which the President is supreme, x x
x only if and when he acts within the sphere allotted
to him by the Basic Law, and
the authority to
determine whether or not he has so acted is
vested
in the Judicial Department, which in this
respect, is, in
turn,
constitutionally supreme.[76] In 1973, the unanimous
Court of Lansang was divided in Aquino v. Enrile.[77] There,
the Court was
almost evenly divided on the
issue of whether the validity of the
imposition
[78]
of Martial Law is a political or justiciable question.
Then
came Garcia-Padilla v. Enrile which greatly
diluted Lansang. It declared that there is a need to reexamine the latter case, ratiocinating that in times of war
or national emergency, the President must be given
absolute control for the very life of the nation and the
government is in great peril. The President, it
intoned, is answerable only to his conscience, the
People, and God.[79]

The Integrated Bar of the Philippines v. Zamora [80] -- a recent

case most pertinent to these cases at bar -- echoed a
principle similar to Lansang. While the Court considered the
Presidents calling-out power as a discretionary power
solely vested in his wisdom, it stressed that this does not
prevent an examination of whether such power was
exercised within permissible constitutional limits or
whether it was exercised in a manner constituting
grave abuse of discretion. This ruling is mainly a result
of the Courts reliance on Section 1, Article VIII of 1987
Constitution which fortifies the authority of the courts to
determine in an appropriate action the validity of the acts of
the political departments. Under the new definition of
judicial power, the courts are authorized 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 the
government. The latter part of the authority represents a
broadening of judicial power to enable the courts of justice to
review what was before a forbidden territory, to wit, the
discretion of the political departments of the government.
[81]
It speaks of judicial prerogative not only in terms
of power but also of duty.[82]
As to how the Court may inquire into the Presidents
exercise of power, Lansang adopted the test that judicial
inquiry can go no further than to satisfy the Court not that
the Presidents decision is correct, but that the President
did not act arbitrarily. Thus, the standard laid down is not
correctness, but arbitrariness.[83] In Integrated Bar of the
Philippines, this Court further ruled that it is incumbent
upon the petitioner to show that the Presidents
decision is totally bereft of factual basis and that if he
fails, by way of proof, to support his assertion, then this
Court cannot undertake an independent investigation
beyond the pleadings.
Petitioners failed to show that President Arroyos exercise of
the calling-out power, by issuing PP 1017, is totally bereft of
factual basis. A reading of the Solicitor Generals

Consolidated Comment and Memorandum shows a detailed

narration of the events leading to the issuance of PP 1017,
with supporting reports forming part of the
records. Mentioned are the escape of the Magdalo Group,
their audacious threat of the Magdalo D-Day, the defections
in the military, particularly in the Philippine Marines, and the
reproving statements from the communist leaders. There was
also the Minutes of the Intelligence Report and Security
Group of the Philippine Army showing the growing alliance
between the NPA and the military. Petitioners presented
nothing to refute such events. Thus, absent any contrary
allegations, the Court is convinced that the President was
justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President

Arroyo was not expected to simply fold her arms and do
nothing to prevent or suppress what she believed was
lawless violence, invasion or rebellion. However, the
exercise of such power or duty must not stifle liberty.

discretion for the public good, without the

proscription of the law and sometimes even against
it.[84] But Locke recognized that this moral restraint might
not suffice to avoid abuse of prerogative powers. Who shall
judge the need for resorting to the prerogative and
how may its abuse be avoided? Here, Locke readily
admitted defeat, suggesting that the people have no
other remedy in this, as in all other cases where they
have no judge on earth, but to appeal to Heaven.[85]
Jean-Jacques Rousseau also assumed the need for temporary
suspension of democratic processes of government in time of
emergency. According to him:
The inflexibility of the laws, which prevents them from
adopting themselves to circumstances, may, in certain cases,
render them disastrous and make them bring about, at a
time of crisis, the ruin of the State
It is wrong therefore to wish to make political institutions as
strong as to render it impossible to suspend their operation.
Even Sparta allowed its law to lapse...

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists
on the Power of the President
in Times of Emergency
This case brings to fore a contentious subject -- the power of
the President in times of emergency. A glimpse at the
various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government,
called upon the English doctrine of prerogative to cope with
the problem of emergency. In times of danger to the nation,
positive law enacted by the legislature might be inadequate
or even a fatal obstacle to the promptness of action
necessary to avert catastrophe. In these situations, the
Crown retained a prerogative power to act according to

If the peril is of such a kind that the paraphernalia of the laws

are an obstacle to their preservation, the method is to
nominate a supreme lawyer, who shall silence all the laws
and suspend for a moment the sovereign authority. In such a
case, there is no doubt about the general will, and it clear
that the peoples first intention is that the State shall not
perish.[86]
Rosseau did not fear the abuse of the emergency dictatorship
or supreme magistracy as he termed it. For him, it
would more likely be cheapened by indiscreet use. He
was unwilling to rely upon an appeal to
heaven. Instead, he relied upon a tenure of office of
prescribed duration to avoid perpetuation of the dictatorship.
[87]

John Stuart Mill concluded his ardent defense of

representative government: I am far from condemning,
in cases of extreme necessity, the assumption of
absolute power in the form of a temporary
dictatorship.[88]
Nicollo Machiavellis view of emergency powers, as one
element in the whole scheme of limited government,
furnished an ironic contrast to the Lockean theory of
prerogative. He recognized and attempted to bridge this
chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be
necessary to resort to extra constitutional measures; for
although they may for a time be beneficial, yet the precedent
is pernicious, for if the practice is once established for good
objects, they will in a little while be disregarded under that
pretext but for evil purposes. Thus, no republic will ever be
perfect if she has not by law provided for everything, having
a remedy for every emergency and fixed rules for applying it.
[89]

Machiavelli in contrast to Locke, Rosseau and Mill

sought to incorporate into the constitution a regularized
system of standby emergency powers to be invoked with
suitable checks and controls in time of national danger. He
attempted forthrightly to meet the problem of combining a
capacious reserve of power and speed and vigor in its
application in time of emergency, with effective
constitutional restraints.[90]
Contemporary political theorists, addressing themselves to
the problem of response to emergency by constitutional
democracies, have employed the doctrine of constitutional
dictatorship.[91]Frederick M. Watkins saw no reason why
absolutism should not be used as a means for the
defense of liberal institutions, provided it serves to
protect established institutions from the danger of
permanent injury in a period of temporary emergency
and is followed by a prompt return to the previous
forms of political life.[92] He recognized the two (2) key
elements of the problem of emergency governance, as well

as all constitutional governance: increasing administrative

powers of the executive, while at the same
time imposing limitation upon that
power.[93] Watkins placed his real faith in a scheme of
constitutional dictatorship. These are the conditions of
success of such a dictatorship: The period of
dictatorship must be relatively shortDictatorship
should always be strictly legitimate in characterFinal
authority to determine the need for dictatorship in
any given case must never rest with the dictator
himself[94] and the objective of such an emergency
dictatorship should be strict political conservatism.
Carl J. Friedrich cast his analysis in terms similar to those of
Watkins.[95] It is a problem of concentrating power in a
government where power has consciously been divided to
cope with situations of unprecedented magnitude and
gravity. There must be a broad grant of powers, subject to
equally strong limitations as to who shall exercise such
powers, when, for how long, and to what end. [96] Friedrich,
too, offered criteria for judging the adequacy of any of
scheme of emergency powers, to wit: The emergency
executive must be appointed by constitutional means
i.e., he must be legitimate; he should not enjoy
power to determine the existence of an emergency;
emergency powers should be exercised under a strict
time limitation; and last, the objective of emergency
action must be the defense of the constitutional
order.[97]
Clinton L. Rossiter, after surveying the history of the
employment of emergency powers in Great Britain, France,
Weimar, Germany and the United States, reverted to a
description of a scheme of constitutional dictatorship as
solution to the vexing problems presented by emergency.
[98]
Like Watkins and Friedrich, he stated a priori the
conditions of success of the constitutional dictatorship,
thus:
1) No general regime or particular institution of constitutional
dictatorship should be initiated unless it is necessary or even
indispensable to the preservation of the State and its
constitutional order

2) the decision to institute a constitutional dictatorship

should never be in the hands of the man or men who will
constitute the dictator
3) No government should initiate a constitutional
dictatorship without making specific provisions for its
termination
4) all uses of emergency powers and all readjustments in
the organization of the government should be effected in
pursuit of constitutional or legal requirements
5) no dictatorial institution should be adopted, no right
invaded, no regular procedure altered any more than is
absolutely necessary for the conquest of the particular crisis .
..
6) The measures adopted in the prosecution of the a
constitutional dictatorship should never be permanent in
character or effect
7) The dictatorship should be carried on by persons
representative of every part of the citizenry interested in the
defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every
action taken under a constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship,
like the decision to institute one should never be in the hands
of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the
termination of the crisis for which it was instituted
11) the termination of the crisis must be followed by a
complete return as possible to the political and governmental
conditions existing prior to the initiation of the constitutional
dictatorship[99]

Rossiter accorded to legislature a far greater role in the

oversight exercise of emergency powers than did
Watkins. He would secure to Congress final responsibility for
declaring the existence or termination of an emergency, and
he places great faith in the effectiveness of congressional
investigating committees.[100]
Scott and Cotter, in analyzing the above contemporary
theories in light of recent experience, were one in saying
that, the suggestion that democracies surrender the
control of government to an authoritarian ruler in
time of grave danger to the nation is not based upon
sound constitutional theory. To appraise emergency
power in terms of constitutional dictatorship serves merely to
distort the problem and hinder realistic analysis. It matters
not whether the term dictator is used in its normal sense
(as applied to authoritarian rulers) or is employed to embrace
all chief executives administering emergency powers.
However used, constitutional dictatorship cannot be
divorced from the implication of suspension of the processes
of constitutionalism. Thus, they favored instead the
concept of constitutionalism articulated by Charles H.
McIlwain:
A concept of constitutionalism which is less misleading in the
analysis of problems of emergency powers, and which is
consistent with the findings of this study, is that formulated
by Charles H. McIlwain. While it does not by any means
necessarily exclude some indeterminate limitations upon the
substantive powers of government, full emphasis is placed
upon procedural limitations, and political responsibility.
McIlwain clearly recognized the need to repose adequate
power in government. And in discussing the meaning of
constitutionalism, he insisted that the historical and
proper test of constitutionalism was the existence of
adequate processes for keeping government
responsible. He refused to equate constitutionalism with
the enfeebling of government by an exaggerated emphasis
upon separation of powers and substantive limitations on
governmental power. He found that the really effective
checks on despotism have consisted not in the weakening of
government but, but rather in the limiting of it; between
which there is a great and very significant difference. In

associating constitutionalism with limited as

distinguished from weak government,
McIlwain meant government limited to the orderly
procedure of law as opposed to the processes of force.
The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must
yet fight are the legal limits to arbitrary power and a
complete political responsibility of government to the
governed.[101]
In the final analysis, the various approaches to emergency of
the above political theorists - from Locks theory of
prerogative, to Watkins doctrine of constitutional
dictatorship and, eventually, to McIlwains principle of
constitutionalism --- ultimately aim to solve one real
problem in emergency governance, i.e., that of allotting
increasing areas of discretionary power to the Chief
Executive, while insuring that such powers will be
exercised with a sense of political responsibility and
under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh
from the fetters of a repressive regime, the 1986
Constitutional Commission, in drafting the 1987 Constitution,
endeavored to create a government in the concept of Justice
Jacksons balanced power structure. [102] Executive,
legislative, and judicial powers are dispersed to the
President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But
none has the monopoly of power in times of
emergency. Each branch is given a role to serve as
limitation or check upon the
other. This system does not weaken the
President, it just limits his power, using the language of
McIlwain. In other words, in times of emergency, our
Constitution reasonably demands that we repose a certain
amount of faith in the basic integrity and wisdom of the Chief
Executive but, at the same time, it obliges him to operate
within carefully prescribed procedural limitations.
a. Facial Challenge

Petitioners contend that PP 1017 is void on its face because

of its overbreadth. They claim that its enforcement
encroached on both unprotected and protected rights under
Section 4, Article III of the Constitution and sent a chilling
effect to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is
uncalled for.
First and foremost, the overbreadth doctrine is an analytical
tool developed for testing on their faces statutes in free
speech cases, also known under the American Law as First
Amendment cases.[103]
A plain reading of PP 1017 shows that it is not primarily
directed to speech or even speech-related conduct. It is
actually a call upon the AFP to prevent or suppress all forms
of lawlessviolence. In United States v. Salerno,[104] the US
Supreme Court held that we have not recognized an
overbreadth doctrine outside the limited context of
the First Amendment (freedom of speech).
Moreover, the overbreadth doctrine is not intended for
testing the validity of a law that reflects legitimate state
interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct. Undoubtedly, lawless
violence, insurrection and rebellion are considered
harmful and constitutionally unprotected conduct.
In Broadrick v. Oklahoma,[105] it was held:
It remains a matter of no little difficulty to determine
when a law may properly be held void on its face and when
such summary action is inappropriate. But the
plain import of our cases is, at the very least, that
facial overbreadth adjudication is an exception to our
traditional rules of practice and that its function, a
limited one at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to

sanction moves from pure speech toward

conduct and that conduct even if expressive falls
within the scope of otherwise valid criminal laws that
reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally
unprotected conduct.
Thus, claims of facial overbreadth are entertained in
cases involving statutes which, by their terms, seek to
regulate only spoken words and again, that
overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected
conduct.[106] Here, the incontrovertible fact remains that
PP 1017 pertains to a spectrum of conduct, not free speech,
which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as
manifestly strong medicine, to be used sparingly
and only as a last resort, and is generally
disfavored;[107] The reason for this is obvious. Embedded
in the traditional rules governing constitutional adjudication
is the principle that a person to whom a law may be applied
will not be heard to challenge a law on the ground that it may
conceivably be applied unconstitutionally to others, i.e., in
other situations not before the Court.[108] A writer and
scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth
technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is
unconstitutional as applied to him or her; if the
litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its
improper applications on a case to case
basis. Moreover, challengers to a law are not
permitted to raise the rights of third parties and can
only assert their own interests. In overbreadth
analysis, those rules give way; challenges are

permitted to raise the rights of third parties; and the

court invalidates the entire statute on its face, not merely
as applied for so that the overbroad law becomes
unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart
from the normal adjudicatory rules is the concern with the
chilling; deterrent effect of the overbroad statute on third
parties not courageous enough to bring suit. The Court
assumes that an overbroad laws very existence may
cause others not before the court to refrain from
constitutionally protected speech or expression. An
overbreadth ruling is designed to remove that deterrent
effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth
doctrine will require the Court to examine PP 1017 and
pinpoint its flaws and defects, not on the basis of its actual
operation to petitioners, but on the assumption or prediction
that its very existence may cause others not before the
Court to refrain from constitutionally protected speech or
expression. In Younger v. Harris,[109] it was held that:
[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of
the relative remoteness of the controversy, the impact
on the legislative process of the relief sought, and
above all the speculative and amorphous nature of the
required line-by-line analysis of detailed
statutes,...ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions,
whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is
the most difficult challenge to mount successfully, since the
challenger must establish that there can be no instance
when the assailed law may be valid. Here, petitioners
did not even attempt to show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the

ground of vagueness. This, too, is unwarranted.
Related to the overbreadth doctrine is the void for
vagueness doctrine which holds that a law is facially
invalid if men of common intelligence must
necessarily guess at its meaning and differ as to its
application.[110] It is subject to the same principles
governing overbreadth doctrine. For one, it is also an
analytical tool for testing on their faces statutes in free
speech cases. And like overbreadth, it is said that a litigant
may challenge a statute on its face only if it is vague in all
its possible applications. Again, petitioners did not
even attempt to show that PP 1017 is vague in all its
application. They also failed to establish that men of
common intelligence cannot understand the meaning and
application of PP 1017.

and to enforce obedience to all the laws and to all

decrees, orders and regulations promulgated by me
personally or upon my direction;

Third provision:

as provided in Section 17, Article XII of the Constitution do

hereby declare a State of National Emergency.

First Provision: Calling-out Power

b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three
important provisions, thus:
First provision:
by virtue of the power vested upon me by Section 18,
Artilce VII do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence
as well any act of insurrection or rebellion
Second provision:

The first provision pertains to the Presidents calling-out

power. In
Sanlakas v. Executive Secretary,[111] this Court, through Mr.
Justice Dante O. Tinga, held that Section 18, Article VII of the
Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-inChief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces
to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or
place the Philippines or any part thereof under martial law.
Within forty-eight hours from the proclamation of martial law
or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress

may, in the same manner, extend such proclamation or

suspension for a period to be determined by the Congress, if
the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall
within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without
need of a call.
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual
bases of the proclamation of martial law or the suspension of
the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its
filing.
A state of martial law does not suspend the operation
of the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and agencies
over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
The suspension of the privilege of the
writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with
invasion.
During the suspension of the privilege
of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be
released.
grants the President, as Commander-in-Chief, a sequence
of graduated powers. From the most to the least benign,
these are: the calling-out power, the power to suspend the
privilege of the writ of habeas corpus, and the power to
declare Martial Law. Citing Integrated Bar of the Philippines
v. Zamora,[112] the Court ruled that the only criterion for the
exercise of the calling-out power is that whenever it

becomes necessary, the President may call the armed

forces to prevent or suppress lawless violence,
invasion or rebellion. Are these conditions present in the
instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it
necessary to issue PP 1017. Owing to her Offices vast
intelligence network, she is in the best position to determine
the actual condition of the country.
Under the calling-out power, the President may
summon the armed forces to aid him in suppressing lawless
violence, invasion and rebellion. This involves ordinary
police action. But every act that goes beyond the
Presidents calling-out power is considered illegal or ultra
vires. For this reason, a President must be careful in the
exercise of his powers. He cannot invoke a greater power
when he wishes to act under a lesser power. There lies the
wisdom of our Constitution, the greater the power, the
greater are the limitations.
It is pertinent to state, however, that there is a
distinction between the Presidents authority to declare a
state of rebellion (in Sanlakas) and the authority to
proclaim a state of national emergency. While President
Arroyos authority to declare a state of rebellion
emanates from her powers as Chief Executive, the statutory
authority cited in Sanlakas was Section 4, Chapter 2, Book II
of the Revised Administrative Code of 1987, which provides:
SEC. 4. Proclamations. Acts of the President fixing a
date or declaring a status or condition of public moment or
interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of
an executive order.
President Arroyos declaration of a state of rebellion
was merely an act declaring a status or condition of public
moment or interest, a declaration allowed under Section 4
cited above. Such declaration, in the words of Sanlakas, is
harmless, without legal significance, and deemed not

written. In these cases, PP 1017 is more than that. In

declaring a state of national emergency, President Arroyo did
not only rely on Section 18, Article VII of the Constitution, a
provision calling on the AFP to prevent or suppress lawless
violence, invasion or rebellion. She also relied on Section 17,
Article XII, a provision on the States extraordinary power to
take over privately-owned public utility and business affected
with public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot
be deemed harmless, without legal significance, or not
written, as in the case of Sanlakas.

where civil courts are able to function, nor automatically

suspend the privilege of the writ.

Some of the petitioners vehemently maintain that PP

1017 is actually a declaration of Martial Law. It is no
so. What defines the character of PP 1017 are its
wordings. It is plain therein that what the President invoked
was her calling-out power.

Justice Mendoza further stated that specifically, (a)

arrests and seizures without judicial warrants; (b) ban on
public assemblies; (c) take-over of news media and agencies
and press censorship; and (d) issuance of Presidential
Decrees, are powers which can be exercised by the President
as Commander-in-Chief only where there is a valid
declaration of Martial Law or suspension of the writ of habeas
corpus.

The declaration of Martial Law is a warn[ing] to

citizens that the military power has been called upon by the
executive to assist in the maintenance of law and order, and
that, while the emergency lasts, they must, upon pain of
arrest and punishment, not commit any acts which will in any
way render more difficult the restoration of order and the
enforcement of law.[113]
In his Statement before the Senate Committee on Justice
on March 13, 2006, Mr. Justice Vicente V. Mendoza, [114] an
authority in constitutional law, said that of the three powers
of the President as Commander-in-Chief, the power to declare
Martial Law poses the most severe threat to civil liberties. It
is a strong medicine which should not be resorted to
lightly. It cannot be used to stifle or persecute critics of the
government. It is placed in the keeping of the President for
the purpose of enabling him to secure the people from harm
and to restore order so that they can enjoy their individual
freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts
or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians

Justice Mendoza also stated that PP 1017 is not a

declaration of Martial Law. It is no more than a call by the
President to the armed forces to prevent or suppress lawless
violence. As such, it cannot be used to justify acts that only
under a valid declaration of Martial Law can be done. Its use
for any other purpose is a perversion of its nature and scope,
and any act done contrary to its command is ultra vires.

Based on the above disquisition, it is clear that PP 1017 is not

a declaration of Martial Law. It is merely an exercise of
President Arroyos calling-out power for the armed
forces to assist her in preventing or suppressing lawless
violence.

Second Provision: Take Care Power

The second provision pertains to the power of the President
to ensure that the laws be faithfully executed. This is based
on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that
the laws be faithfully executed.

As the Executive in whom the executive power is vested,

the primary function of the President is to enforce the
laws as well as to formulate policies to be embodied in
existing laws. He sees to it that all laws are enforced by the
officials and employees of his department. Before assuming
office, he is required to take an oath or affirmation to the
effect that as President of the Philippines, he will, among
others, execute its laws.[116] In the exercise of such
function, the President, if needed, may employ the powers
attached to his office as the Commander-in-Chief of all the
armed forces of the country,[117] including the Philippine
National Police[118] under the Department of Interior and Local
Government.[119]
[115]

Petitioners, especially Representatives Francis Joseph G.

Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casio,
Liza Maza, and Josel Virador argue that PP 1017 is
unconstitutional as it arrogated upon President Arroyo the
power to enact laws and decrees in violation of Section 1,
Article VI of the Constitution, which vests the power to enact
laws in Congress. They assail the clause to enforce
obedience to all the laws and to all decrees, orders
and regulations promulgated by me personally or
upon my direction.
\
Petitioners contention is understandable. A reading of PP
1017 operative clause shows that it was lifted [120] from
Former President Marcos Proclamation No. 1081, which
partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines by virtue of the powers vested upon me by
Article VII, Section 10, Paragraph (2) of the Constitution, do
hereby place the entire Philippines as defined in Article 1,
Section 1 of the Constitution under martial law and, in my
capacity as their Commander-in-Chief, do hereby command

the Armed Forces of the Philippines, to maintain law

and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well as any
act of insurrection or rebellion and to enforce
obedience to all the laws and decrees, orders and
regulations promulgated by me personally or upon my
direction.

We all know that it was PP 1081 which granted President

Marcos legislative power. Its enabling clause states: to
enforce obedience to all the laws and decrees, orders
and regulations promulgated by me personally or
upon my direction. Upon the other hand, the enabling
clause of PP 1017 issued by President Arroyo is: to enforce
obedience to all the laws and to alldecrees, orders and
regulations promulgated by me personally or upon my
direction.
Is it within the domain of President Arroyo to promulgate
decrees?
PP 1017 states in
part: to enforce obedience to all the laws and decree
s x x x promulgated by me personally or upon my
direction.
The President is granted an Ordinance Power under Chapter
2, Book III of Executive Order No. 292 (Administrative Code of
1987). She may issue any of the following:
Sec. 2. Executive Orders. Acts of the President providing
for rules of a general or permanent character in
implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Acts of the President which
relate to particular aspect of governmental operations in
pursuance of his duties as administrative head shall be
promulgated in administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date
or declaring a status or condition of public moment or

interest, upon the existence of which the operation of a

specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of
an executive order.
Sec. 5. Memorandum Orders. Acts of the President on
matters of administrative detail or of subordinate or
temporary interest which only concern a particular officer or
office of the Government shall be embodied in memorandum
orders.
Sec. 6. Memorandum Circulars. Acts of the President on
matters relating to internal administration, which the
President desires to bring to the attention of all or some of
the departments, agencies, bureaus or offices of the
Government, for information or compliance, shall be
embodied in memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of
the President in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines shall be issued as general or
special orders.

Can President Arroyo enforce obedience to all decrees

and laws through the military?
As this Court stated earlier, President Arroyo has no
authority to enact decrees. It follows that these decrees are
void and, therefore, cannot be enforced. With respect to
laws, she cannot call the military to enforce or implement
certain laws, such as customs laws, laws governing family
and property relations, laws on obligations and contracts and
the like. She can only order the military, under PP 1017, to
enforce laws pertinent to its duty to suppress lawless
violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

President Arroyos ordinance power is limited to the

foregoing issuances. She cannot issue decrees similar to
those issued by Former President Marcos under PP
1081. Presidential Decrees are laws which are of the same
category and binding force as statutes because they were
issued by the President in the exercise of his legislative
power during the period of Martial Law under the 1973
Constitution.[121]
This Court rules that the assailed PP 1017 is
unconstitutional insofar as it grants President Arroyo
the authority to promulgate decrees. Legislative
power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that
[t]he legislative power shall be vested in the
Congress of the Philippines which shall consist of a
Senate and a House of Representatives. To be sure,
neither Martial Law nor a state of rebellion nor a state of
emergency can justify President Arroyos exercise of
legislative power by issuing decrees.

x x x and to enforce obedience to all the laws and to all

decrees, orders, and regulations promulgated by me
personally or upon my direction; and as provided in
Section 17, Article XII of the Constitution do hereby
declare a state of national emergency.
The import of this provision is that President Arroyo, during
the state of national emergency under PP 1017, can call the
military not only to enforce obedience to all the laws and to
all decrees x x x but also to act pursuant to the provision of
Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the
public interest so requires, the State may, during the
emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privatelyowned public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the

above provision when she issued PP 1017?
The answer is simple. During the existence of the state of
national emergency, PP 1017 purports to grant the President,
without any authority or delegation from Congress, to take
over or direct the operation of any privately-owned public
utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution,
as a product of the martial law thinking of the 1971
Constitutional Convention.[122] In effect at the time of its
approval was President Marcos Letter of Instruction No. 2
dated September 22, 1972 instructing the Secretary of
National Defense to take over the management, control
and operation of the Manila Electric Company, the
Philippine Long Distance Telephone Company, the National
Waterworks and Sewerage Authority, the Philippine National
Railways, the Philippine Air Lines, Air Manila (and) Filipinas
Orient Airways . . . for the successful prosecution by the
Government of its effort to contain, solve and end the
present national emergency.
Petitioners, particularly the members of the House of
Representatives, claim that President Arroyos inclusion of
Section 17, Article XII in PP 1017 is an encroachment on the
legislatures emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the Presidents
authority to declare a state of national emergency
and
to exercise emergency powers. To the first, as
elucidated by the Court, Section 18, Article VII grants the
President such power, hence, no legitimate constitutional
objection can be raised. But to the second, manifold
constitutional issues arise.
Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both

Houses in joint session assembled, voting separately, shall
have the sole power to declare the existence of a state
of war.
(2) In times of war or other national emergency, the
Congress may, by law, authorize the President, for a limited
period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared
national policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next
adjournment thereof.
It may be pointed out that the second paragraph of the
above provision refers not only to war but also to other
national emergency. If the intention of the Framers of
our Constitution was to withhold from the President the
authority to declare a state of national emergency
pursuant to Section 18, Article VII (calling-out power) and
grant it to Congress (like the declaration of the existence of a
state of war), then the Framers could have provided
so. Clearly, they did not intend that Congress should first
authorize the President before he can declare a state of
national emergency. The logical conclusion then is that
President Arroyo could validly declare the existence of a state
of national emergency even in the absence of a
Congressional enactment.
But the exercise of emergency powers, such as the taking
over of privately owned public utility or business affected
with public interest, is a
different matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari
materia are to be construed together. Otherwise stated,
different clauses, sections, and provisions of a constitution
which relate to the same subject matter will be construed
together and considered in the light of each other.
[123]
Considering that Section 17 of Article XII and Section 23
of Article VI, previously quoted, relate to national
emergencies, they must be read together to determine the
limitation of the exercise of emergency powers.

Generally, Congress is the repository of emergency

powers. This is evident in the tenor of Section 23 (2), Article
VI authorizing it to delegate such powers to the
President. Certainly, a body cannot delegate a power
not reposed upon it. However, knowing that during grave
emergencies, it may not be possible or practicable for
Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant
emergency powers to the President, subject to certain
conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions
as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out
a national policy declared by Congress.[124]

Section 17, Article XII must be understood as an aspect

of the emergency powers clause. The taking over of private
business affected with public interest is just another facet of
the emergency powers generally reposed upon
Congress. Thus, when Section 17 states that the the State
may, during the emergency and under reasonable
terms prescribed by it, temporarily take over or direct
the operation of any privately owned public utility or
business affected with public interest, it refers to
Congress, not the President. Now, whether or not the
President may exercise such power is dependent on whether
Congress may delegate it to him pursuant to a law
prescribing the reasonable terms thereof. Youngstown Sheet
& Tube Co. et al. v. Sawyer, [125] held:
It is clear that if the President had authority to issue the order
he did, it must be found in some provision of the
Constitution. And it is not claimed that express constitutional
language grants this power to the President. The contention

is that presidential power should be implied from the

aggregate of his powers under the Constitution. Particular
reliance is placed on provisions in Article II which say that
The executive Power shall be vested in a President . . . .;
that he shall take Care that the Laws be faithfully
executed; and that he shall be Commander-in-Chief of the
Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the
Presidents military power as Commander-in-Chief of the
Armed Forces. The Government attempts to do so by citing a
number of cases upholding broad powers in military
commanders engaged in day-to-day fighting in a theater of
war. Such cases need not concern us here. Even though
theater of war be an expanding concept, we cannot
with faithfulness to our constitutional system hold
that the Commander-in-Chief of the Armed Forces has
the ultimate power as such to take possession of
private property in order to keep labor disputes from
stopping production. This is a job for the nations
lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the
several constitutional provisions that grant executive
power to the President. In the framework of our
Constitution, the Presidents power to see that the
laws are faithfully executed refutes the idea that he is
to be a lawmaker. The Constitution limits his
functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing
of laws he thinks bad. And the Constitution is neither
silent nor equivocal about who shall make laws which
the President is to execute. The first section of the
first article says that All legislative Powers herein
granted shall be vested in a Congress of the United
States. . .[126]

Petitioner Cacho-Olivares, et al. contends that the term

emergency under Section 17, Article XII refers to

tsunami, typhoon, hurricane and similar

occurrences. This is a limited view of emergency.

Emergency, as a generic term, connotes the existence of

conditions suddenly intensifying the degree of existing
danger to life or well-being beyond that which is accepted as
normal. Implicit in this definitions are the elements of
intensity, variety, and perception.[127] Emergencies, as
perceived by legislature or executive in the United Sates
since 1933, have been occasioned by a wide range of
situations, classifiable under three (3) principal
heads: a) economic,[128] b) natural disaster,
[129]
and c) national security.[130]

x x x
x
x x
MR. TINGSON. May I ask the committee if national
emergency refers to military national emergency or
could this be economic emergency?
MR. VILLEGAS. Yes, it could refer to both military or
economic dislocations.
MR. TINGSON. Thank you very much.[133]
It may be argued that when there is national
emergency, Congress may not be able to convene and,
therefore, unable to delegate to the President the power to
take over privately-owned public utility or business affected
with public interest.
In Araneta v. Dinglasan,[134] this Court emphasized that
legislative power, through which extraordinary measures are
exercised, remains in Congress even in times of crisis.
x x x

Emergency, as contemplated in our Constitution, is of the

same breadth. It may include rebellion, economic crisis,
pestilence or epidemic, typhoon, flood, or other similar
catastrophe of nationwide proportions or effect. [131] This is
evident in the Records of the Constitutional Commission,
thus:
MR. GASCON. Yes. What is the Committees definition of
national emergency which appears in Section 13, page
5? It reads:
When the common good so requires, the State may
temporarily take over or direct the operation of any privately
owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external
aggression, for example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los
Reyes. What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by
the term national emergency.
MR. BENGZON. Unless they are of such proportions such that
they would paralyze government service.[132]

After all the criticisms that have been made against

the efficiency of the system of the separation of powers, the
fact remains that the Constitution has set up this form of
government, with all its defects and shortcomings, in
preference to the commingling of powers in one man or
group of men. The Filipino people by adopting parliamentary
government have given notice that they share the faith of
other democracy-loving peoples in this system, with all its
faults, as the ideal. The point is, under this framework of
government, legislation is preserved for Congress all the
time, not excepting periods of crisis no matter how
serious. Never in the history of the United States, the basic
features of whose Constitution have been copied in ours,
have specific functions of the legislative branch of enacting
laws been surrendered to another department unless we
regard as legislating the carrying out of a legislative policy
according to prescribed standards; no, not even when that
Republic was fighting a total war, or when it was engaged in
a life-and-death struggle to preserve the Union. The truth is
that under our concept of constitutional government, in times
of extreme perils more than in normal circumstances the

various branches, executive, legislative, and judicial, given

the ability to act, are called upon to perform the duties and
discharge the responsibilities committed to them
respectively.
Following our interpretation of Section 17, Article XII, invoked
by President Arroyo in issuing PP 1017, this Court rules that
such Proclamation does not authorize her during the
emergency to temporarily take over or direct the operation of
any privately owned public utility or business affected with
public interest without authority from Congress.
Let it be emphasized that while the President alone can
declare a state of national emergency, however, without
legislation, he has no
power to take over privately-owned
public utility or business affected
with public interest. The
President cannot decide whether
exceptional
circumstances exist warranting the take over
of privately-owned
public utility or business affected
with public interest. Nor can he determine when such
exceptional circumstances have ceased. Likewise, without
legislation, the President has no power to point out the
types of businesses affected with public interest that should
be taken over. In short, the President has no absolute
authority to exercise all the powers of the State under
Section 17, Article VII in the absence of an emergency
powers act passed by Congress.
c. AS APPLIED CHALLENGE
One of the misfortunes of an emergency, particularly, that
which pertains to security, is that military necessity and the
guaranteed rights of the individual are often not
compatible. Our history reveals that in the crucible of
conflict, many rights are curtailed and trampled upon. Here,
the right against unreasonable search and seizure; the
right against warrantless arrest; and the freedom of
speech, of expression, of the press, and of
assembly under the Bill of Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate direct injury.

In G.R. No. 171396, petitioners David and Llamas alleged
that, on February 24, 2006, they were arrested without
warrants on their way to EDSA to celebrate the
20th Anniversary of People Power I.
The arresting officers
cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares
and Tribune Publishing Co., Inc. claimed that on February 25,
2006, the CIDG operatives raided and ransacked without
warrant their office. Three policemen were assigned to
guard their office as a possible source of
destabilization. Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et
al. alleged that their members were turned away and
dispersed when they went to EDSA and later, to Ayala
Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the direct injuries allegedly suffered by
the said petitioners shows that they resulted from
the implementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O.
No 5 on the basis of these illegal acts? In general, does the
illegal implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare
statutes invalid although they may be abused and
misabused[135] and may afford an opportunity for abuse
in the manner of application.[136] The validity of a statute
or ordinance is to be determined from its general purpose
and its efficiency to accomplish the end desired, not from
its effects in a particular case.[137] PP 1017 is merely an
invocation of the Presidents calling-out power. Its general
purpose is to command the AFP to suppress all forms of
lawless violence, invasion or rebellion. It had accomplished
the end desired which prompted President Arroyo to issue PP
1021. But there is nothing in PP 1017 allowing the police,
expressly or impliedly, to conduct illegal arrest, search or
violate the citizens constitutional rights.

rebellion, the phrase acts of terrorism is still an

amorphous and vague concept. Congress has yet to enact a
law defining and punishing acts of terrorism.
Now, may this Court adjudge a law or ordinance
unconstitutional on the ground that its implementor
committed illegal acts? The answer is no. The criterion by
which the validity of the statute or ordinance is to be
measured is the essential basis for the exercise of
power, and not a mere incidental result arising from its
exertion.[138] This is logical. Just imagine the absurdity of
situations when laws maybe declared unconstitutional just
because the officers implementing them have acted
arbitrarily. If this were so, judging from the blunders
committed by policemen in the cases passed upon by the
Court, majority of the provisions of the Revised Penal Code
would have been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the
provisions of PP 1017. General orders are acts and
commands of the President in his capacity as Commander-inChief of the Armed Forces of the Philippines. They are
internal rules issued by the executive officer to his
subordinates precisely for
the proper and efficient administration of law. Such
rules and regulations create no relation except between the
official who issues them and the official who receives them.
[139]
They are based on and are the product of, a relationship
in which power is their source, and obedience, their object.
[140]
For these reasons, one requirement for these rules to be
valid is that they must be reasonable, not arbitrary or
capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately
carry out the necessary and appropriate actions and
measures to suppress and prevent acts of terrorism
and lawlessviolence.
Unlike the term lawless violence which is unarguably
extant in our statutes and the Constitution, and which is
invariably associated with invasion, insurrection or

In fact, this definitional predicament or the absence of

an agreed definition of terrorism confronts not only our
country, but the international
community as well. The following observations are quite
apropos:
In the actual unipolar context of international relations, the
fight against terrorism has become one of the basic
slogans when it comes to the justification of the use of force
against certain states and against groups operating
internationally. Lists of states sponsoring terrorism and of
terrorist organizations are set up and constantly being
updated according to criteria that are not always known to
the public, but are clearly determined by strategic interests.
The basic problem underlying all these military actions or
threats of the use of force as the most recent by the United
States against Iraq consists in the absence of an agreed
definition of terrorism.
Remarkable confusion persists in regard to the legal
categorization of acts of violence either by states, by armed
groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying One
countrys terrorist is another countrys freedom
fighter. The apparent contradiction or lack of consistency in
the use of the term terrorism may further be
demonstrated by the historical fact that leaders of national
liberation movements such as Nelson Mandela in South
Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in
Algeria, to mention only a few, were originally labeled as
terrorists by those who controlled the territory at the time,
but later became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts

the differentia specifica distinguishing those acts from
eventually legitimate acts of national resistance or selfdefense?
Since the times of the Cold War the United Nations
Organization has been trying in vain to reach a consensus on
the basic issue of definition. The organization has intensified
its efforts recently, but has been unable to bridge the gap
between those who associate terrorism with any violent
act by non-state groups against civilians, state functionaries
or infrastructure or military installations, and those who
believe in the concept of the legitimate use of force when
resistance against foreign occupation or against systematic
oppression of ethnic and/or religious groups within a state is
concerned.
The dilemma facing the international community can best be
illustrated by reference to the contradicting categorization of
organizations and movements such as Palestine Liberation
Organization (PLO) which is a terrorist group for Israel and
a liberation movement for Arabs and Muslims the Kashmiri
resistance groups who are terrorists in the perception of
India, liberation fighters in that of Pakistan the earlier
Contras in Nicaragua freedom fighters for the United
States, terrorists for the Socialist camp or, most drastically,
the Afghani Mujahedeen (later to become the Taliban
movement): during the Cold War period they were a group of
freedom fighters for the West, nurtured by the United States,
and a terrorist gang for the Soviet Union. One could go on
and on in enumerating examples of conflicting
categorizations that cannot be reconciled in any way
because of opposing political interests that are at the roots of
those perceptions.
How, then, can those contradicting definitions and conflicting
perceptions and evaluations of one and the same group and
its actions be explained? In our analysis, the basic reason for
these striking inconsistencies lies in the divergent interest of
states. Depending on whether a state is in the position of an
occupying power or in that of a rival, or adversary, of an
occupying power in a given territory, the definition of

terrorism will fluctuate accordingly. A state may

eventually see itself as protector of the rights of a certain
ethnic group outside its territory and will therefore speak of a
liberation struggle, not of terrorism when acts of
violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a
decision on the definition of terrorism exactly because of
these conflicting interests of sovereign states that determine
in each and every instance how a particular armed
movement (i.e. a non-state actor) is labeled in regard to the
terrorists-freedom fighter dichotomy. A policy of double
standards on this vital issue of international affairs has
been the unavoidable consequence.
This definitional predicament of an organization consisting
of sovereign states and not of peoples, in spite of the
emphasis in the Preamble to the United Nations Charter!
has become even more serious in the present global power
constellation: one superpower exercises the decisive role in
the Security Council, former great powers of the Cold War era
as well as medium powers are increasingly being
marginalized; and the problem has become even more acute
since the terrorist attacks of 11 September 2001 I the United
States.[141]
The absence of a law defining acts of terrorism may result
in abuse and oppression on the part of the police or
military. An illustration is when a group of persons are
merely engaged in a drinking spree. Yet the military or the
police may consider the act as an act of terrorism and
immediately arrest them pursuant to G.O. No. 5. Obviously,
this is abuse and oppression on their part. It must be
remembered that an act can only be considered a crime if
there is a law defining the same as such and imposing the
corresponding penalty thereon.
So far, the word terrorism appears only once in our
criminal laws, i.e., in P.D. No. 1835 dated January 16, 1981
enacted by President Marcos during the Martial Law
regime. This decree is entitled Codifying The Various Laws

on Anti-Subversion and Increasing The Penalties for

Membership in Subversive Organizations. The word
terrorism is mentioned in the following provision: That
one who conspires with any other person for the purpose of
overthrowing the Government of the Philippines x x x by
force, violence, terrorism, x x x shall be punished
byreclusion temporal x x x.

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws
the Communist Party of the Philippines) enacted by President
Corazon Aquino on May 5, 1985. These two (2) laws,
however, do not define acts of terrorism. Since there is
no law defining acts of terrorism, it is President Arroyo
alone, under G.O. No. 5, who has the discretion to determine
what acts constitute terrorism. Her judgment on this aspect
is absolute, without restrictions. Consequently, there can be
indiscriminate arrest without warrants, breaking into offices
and residences, taking over the media enterprises,
prohibition and dispersal of all assemblies and gatherings
unfriendly to the administration. All these can be effected in
the name of G.O. No. 5. These acts go far beyond the callingout power of the President. Certainly, they violate the due
process clause of the Constitution. Thus, this Court declares
that the acts of terrorism portion of G.O. No. 5 is
unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the

military or police to commit acts beyond what are necessary
and appropriate to suppress and prevent lawless
violence, the limitation of their authority in pursuing the
Order. Otherwise, such acts are considered illegal.

The Constitution provides that the right of the people to be

secured in their persons, houses, papers and effects against
unreasonable search and seizure of whatever nature and for
any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be
seized.[142] The plain import of the language of the
Constitution is that searches, seizures and arrests
are normally unreasonable unless authorized by a validly
issued search warrant or warrant of arrest. Thus, the
fundamental protection given by this provision is that
between person and police must stand the protective
authority of a magistrate clothed with power to issue or
refuse to issue search warrants or warrants of arrest. [143]
In the Brief Account[144] submitted by petitioner David,
certain facts are established: first, he was arrested without
warrant; second, the PNP operatives arrested him on
the basis of PP 1017;third, he was brought at Camp Karingal,
Quezon City where he was fingerprinted, photographed and
booked like a criminal suspect; fourth, he was treated
brusquely by policemen who held his head and tried to
push him inside an unmarked car; fifth, he was charged
with Violation of Batas Pambansa Bilang
No.
880[145] and Inciting to Sedition; sixth, he was detained
for seven (7) hours; and seventh, he was eventually released
for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal

Procedure provides:
We first examine G.R. No. 171396 (David et al.)

Sec. 5. Arrest without warrant; when lawful. - A peace

officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense.

Section 4 of Article III guarantees:

(b) When an offense has just been committed and he has

probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it; and

No law shall be passed abridging the freedom of speech, of

expression, or of the press, or the right of the people
peaceably to assemble and petition the government for
redress of grievances.

x.

Neither of the two (2) exceptions mentioned above justifies

petitioner Davids warrantless arrest. During the inquest
for the charges of inciting to sedition and violation of BP
880, all that the arresting officers could invoke was their
observation that some rallyists were wearing t-shirts with
the invective Oust Gloria
Now and their erroneous assumption that petitioner David
was the leader of the rally.[146] Consequently, the Inquest
Prosecutor ordered his immediate release on the ground of
insufficiency of evidence. He noted that petitioner David was
not wearing the subject t-shirt and even if he was wearing it,
such fact is insufficient to charge him with inciting to
sedition. Further, he also stated that there is insufficient
evidence for the charge ofviolation of BP 880 as it was not
even known whether petitioner David was the leader of the
rally.[147]

But what made it doubly worse for petitioners David et al. is

that not only was their right against warrantless arrest
violated, but also their right to peaceably assemble.

Assembly means a right on the part of the citizens to

meet peaceably for consultation in respect to public
affairs. It is a necessary consequence of our republican
institution and complements the right of speech. As in the
case of freedom of expression, this right is not to be limited,
much less denied, except on a showing of a clear and
present danger of a substantive evil that Congress has a
right to prevent. In other words, like other rights embraced
in the freedom of expression, the right to assemble is not
subject to previous restraint or censorship. It may not be
conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of
course, if the assembly is intended to be held in a public
place, a permit for the use of such place, and not for the
assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were

arrested while they were exercising their right to peaceful
assembly. They were not committing any crime, neither was
there a showing of a clear and present danger that warranted
the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to
sedition and violation of BP 880 were mere
afterthought. Even the Solicitor General, during the oral
argument, failed to justify the arresting officers

conduct. In De Jonge v. Oregon,[148] it was held that

peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a
crime. The holding of meetings for peaceable political action
cannot be proscribed. Those who assist in the conduct of
such meetings cannot be branded as criminals on that score.
The question, if the rights of free speech and peaceful
assembly are not to be preserved, is not as to the auspices
under which the meeting was held but as to its purpose; not
as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of speech
which the Constitution protects. If the persons assembling
have committed crimes elsewhere, if they have formed or are
engaged in a conspiracy against the public peace and order,
they may be prosecuted for their conspiracy or other
violations of valid laws. But it is a different matter when
the State, instead of prosecuting them for such
offenses, seizes upon mere participation in a
peaceable assembly and a lawful public discussion as
the basis for a criminal charge.

On the basis of the above principles, the Court likewise

considers the dispersal and arrest of the members of KMU et
al. (G.R. No. 171483) unwarranted. Apparently, their
dispersal was done merely on the basis of Malacaangs
directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale
cancellation of all permits to rally is a blatant disregard of the
principle that freedom of assembly is not to be limited,
much less denied, except on a showing of a clear and
present danger of a substantive evil that the State
has a right to prevent.[149] Tolerance is the rule and
limitation is the exception. Only upon a showing that an
assembly presents a clear and present danger that the State
may deny the citizens right to exercise it. Indeed,
respondents failed to show or convince the Court that the
rallyists committed acts amounting to lawless violence,
invasion or rebellion. With the blanket revocation of permits,

the distinction between protected and unprotected

assemblies was eliminated.
Moreover, under BP 880, the authority to regulate
assemblies and rallies is lodged with the local government
units. They have the power to issue permits and to revoke
such permits after due notice and hearing on the
determination of the presence of clear and present danger.
Here, petitioners were not even notified and heard on the
revocation of their permits.[150] The first time they learned of
it was at the time of the dispersal. Such absence of notice is
a fatal defect. When a persons right is restricted by
government action, it behooves a democratic government to
see to it that the restriction is fair, reasonable, and according
to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another

facet of freedom of speech i.e., the freedom of the
press. Petitioners narration of facts, which the Solicitor
General failed to refute, established the
following: first, the Daily Tribunes offices were searched
without warrant; second, the police operatives seized several
materials for publication; third, the search was conducted at
about 1:00 o clock in the morning of February 25,
2006; fourth, the search was conducted in the absence of
any official of the Daily Tribune except the security guard of
the building; and fifth, policemen stationed themselves at the
vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government
officials. Presidential Chief of Staff Michael Defensor was
quoted as saying that such raid was meant to show a
strong presence, to tell media outlets not to
connive or do anything that would help the rebels in
bringing down this government. Director General
Lomibao further stated that if they do not follow the
standards and the standards are if they would
contribute to instability in the government, or if they
do not subscribe to what is in General Order No. 5 and

Proc. No. 1017 we will recommend

a takeover. National Telecommunications
Commissioner Ronald Solis urged television and radio
networks to cooperate with the government for the
duration of the state of national emergency. He warned
that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules set
out for media coverage during times when the
national security is threatened.[151]
The search is illegal. Rule 126 of The Revised Rules on
Criminal Procedure lays down the steps in the conduct of
search and seizure. Section 4 requires that a search
warrant be issued upon probable cause in connection with
one specific offence to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. Section
8 mandates that the search of a house, room, or any other
premise be made in the presence of the lawful
occupant thereof or any member of his family or in the
absence of the latter, in the presence of two (2) witnesses of
sufficient age and discretion residing in the same
locality. And Section 9 states that the warrant must direct
that it be served in the daytime, unless the property is on
the person or in the place ordered to be searched, in which
case a direction may be inserted that it be served at any time
of the day or night. All these rules were violated by the CIDG
operatives.
Not only that, the search violated petitioners freedom of the
press. The best gauge of a free and democratic society rests
in the degree of freedom enjoyed by its media. In the Burgos
v. Chief of Staff[152] this Court held that -As heretofore stated, the premises searched were the
business and printing offices of the "Metropolitan Mail" and
the "We Forum newspapers. As a consequence of the
search and seizure, these premises were padlocked and
sealed, with the further result that the printing and
publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or

censorship abhorrent to the freedom of the press
guaranteed under the fundamental law, and
constitutes a virtual denial of petitioners' freedom to
express themselves in print. This state of being is
patently anathematic to a democratic framework
where a free, alert and even militant press is essential
for the political enlightenment and growth of the
citizenry.

While admittedly, the Daily Tribune was not padlocked and

sealed like the Metropolitan Mail and We Forum
newspapers in the above case, yet it cannot be denied that
the CIDG operatives exceeded their enforcement duties. The
search and seizure of materials for publication, the stationing
of policemen in the vicinity of the The Daily Tribune offices,
and the arrogant warning of government officials to media,
are plain censorship. It is that officious functionary of the
repressive government who tells the citizen that he may
speak only if allowed to do so, and no more and no less than
what he is permitted to say on pain of punishment should he
be so rash as to disobey.[153] Undoubtedly, the The Daily
Tribune was subjected to these arbitrary intrusions because
of its anti-government sentiments. This Court cannot
tolerate the blatant disregard of a constitutional right even if
it involves the most defiant of our citizens. Freedom to
comment on public affairs is essential to the vitality of a
representative democracy. It is the duty of the courts to be
watchful for the constitutional rights of the citizen, and
against any stealthy encroachments thereon. The motto
should always be obsta principiis.[154]

Incidentally, during the oral arguments, the Solicitor General

admitted that the search of the Tribunes offices and the
seizure of its materials for publication and other papers are
illegal; and that the same are inadmissible for any
purpose, thus:

could go and inspect and gather clippings from Daily Tribune

or any other newspaper.

JUSTICE CALLEJO:
You made quite a mouthful of admission when you
said that the policemen, when inspected the Tribune for the
purpose of gathering evidence and you admitted that the
policemen were able to get the clippings. Is that not in
admission of the admissibility of these clippings that were
taken from the Tribune?

SR. ASSO. JUSTICE PUNO:

Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.

SOLICITOR GENERAL BENIPAYO:

SR. ASSO. JUSTICE PUNO:
Under the law they would seem to be, if they were
illegally seized, I think and I know, Your Honor, and these are
inadmissible for any purpose.[155]
xxx

xxx

So, it has no basis, no legal basis whatsoever?

xxx

SR. ASSO. JUSTICE PUNO:

SOLGEN BENIPAYO:

These have been published in the past issues of the

Daily Tribune; all you have to do is to get those past
issues. So why do you have to go there at 1 oclock in the
morning and without any search warrant? Did they become
suddenly part of the evidence of rebellion or inciting to
sedition or what?

Maybe so, Your Honor. Maybe so, that is why I said, I

dont know if it is premature to say this, we do not
condone this. If the people who have been injured by
this would want to sue them, they can sue and there
are remedies for this.[156]

SOLGEN BENIPAYO:

Likewise, the warrantless arrests and seizures executed by

the police were, according to the Solicitor General, illegal and
cannot be condoned, thus:

Well, it was the police that did that, Your Honor. Not
upon my instructions.

CHIEF JUSTICE PANGANIBAN:

SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal,
it is not based on any law, and it is not based on
Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor,
because there is nothing in 1017 which says that the police

There seems to be some confusions if not contradiction in

your theory.
SOLICITOR GENERAL BENIPAYO:
I dont know whether this will clarify. The acts, the
supposed illegal or unlawful acts committed on the occasion
of 1017, as I said, it cannot be condoned. You cannot
blame the President for, as you said, a misapplication of the

law. These are acts of the police officers, that is their

responsibility.[157]

The Dissenting Opinion states that PP 1017 and G.O. No. 5

are constitutional in every aspect and should result in no
constitutional or statutory breaches if applied according to
their letter.
The Court has passed upon the constitutionality of these
issuances. Its ratiocination has been exhaustively
presented. At this point, suffice it to reiterate that PP 1017 is
limited to the calling out by the President of the military to
prevent or suppress lawless violence, invasion or
rebellion. When in implementing its provisions, pursuant to
G.O. No. 5, the military and the police committed acts which
violate the citizens rights under the Constitution, this Court
has to declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganibans
concurring opinion, attached hereto, is considered an integral
part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021
a supervening event would have normally rendered this
case moot and academic. However, while PP 1017 was still
operative, illegal acts were committed allegedly in pursuance
thereof. Besides, there is no guarantee that PP 1017, or one
similar to it, may not again be issued. Already, there have
been media reports on April 30, 2006 that allegedly PP 1017
would be reimposed if the May 1 rallies become unruly
and violent. Consequently, the transcendental issues
raised by the parties should not be evaded; they must
now be resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional
insofar as it constitutes a call by the President for the AFP to
prevent or suppress lawless violence. The proclamation is

sustained by Section 18, Article VII of the Constitution and

the relevant jurisprudence discussed earlier. However, PP
1017s extraneous provisions giving the President express or
implied power (1) to issue decrees; (2) to direct the AFP to
enforce obedience to all laws even those not related to
lawless violence as well as decrees promulgated by the
President; and (3) to impose standards on media or any form
of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under
Section 17, Article XII of the Constitution, the President, in
the absence of a legislation, cannot take over privatelyowned public utility and private business affected with public
interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an

Order issued by the President acting as Commander-inChief addressed to subalterns in the AFP to carry out the
provisions of PP 1017. Significantly, it also provides a valid
standard that the military and the police should take only
the necessary and appropriate actions and measures
to suppress and prevent acts of lawless
violence. But the words acts of terrorism found in
G.O. No. 5 have not been legally defined and made
punishable by Congress and should thus be deemed deleted
from the said G.O. While terrorism has been denounced
generally in media, no law has been enacted to guide the
military, and eventually the courts, to determine the limits of
the AFPs authority in carrying out this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated

earlier, it is also pristine clear that (1) the warrantless arrest
of petitioners Randolf S. David and Ronald Llamas; (2) the
dispersal of the rallies and warrantless arrest of the KMU and
NAFLU-KMU members; (3) the imposition of standards on
media or any prior restraint on the press; and (4) the
warrantless search of the Tribune offices and the whimsical
seizures of some articles for publication and other materials,
are not authorized by the Constitution, the law and

jurisprudence. Not even by the valid provisions of PP 1017

and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot
impose any civil, criminal or administrative sanctions on the
individual police officers concerned. They have not been
individually identified and given their day in court. The civil
complaints or causes of action and/or relevant criminal
Informations have not been presented before this
Court. Elementary due process bars this Court from making
any specific pronouncement of civil, criminal or
administrative liabilities.

It is well to remember that military power is a means

to an end and substantive civil rights are ends in
themselves. How to give the military the power it
needs to protect the Republic without unnecessarily
trampling individual rights is one of the eternal
balancing tasks of a democratic state. During
emergency, governmental action may vary in breadth and
intensity from normal times, yet they should not be arbitrary
as to unduly restrain our peoples liberty.
Perhaps, the vital lesson that we must learn from the
theorists who studied the various competing political
philosophies is that, it is possible to grant government the
authority to cope with crises without surrendering the two
vital principles of constitutionalism: the maintenance of
legal limits to arbitrary power, and political
responsibility of the government to the governed.[158]
WHEREFORE, the Petitions are partly granted. The Court
rules that PP 1017 is CONSTITUTIONAL insofar as it
constitutes a call by President Gloria Macapagal-Arroyo on
the AFP to prevent or suppress lawless
violence. However, the provisions of PP 1017 commanding
the AFP to enforce laws not related to lawless violence, as
well as decrees promulgated by the President, are

declared UNCONSTITUTIONAL. In addition, the provision

in PP 1017 declaring national emergency under Section
17, Article VII of the Constitution is CONSTITUTIONAL, but
such declaration does not authorize the President to take
over privately-owned public utility or business affected with
public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard
by which the AFP and the PNP should implement PP 1017, i.e.
whatever is necessary and appropriate actions and
measures to suppress and prevent acts of lawless
violence. Considering that acts of terrorism have not
yet been defined and made punishable by the Legislature,
such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald

Llamas; the dispersal and warrantless arrest of the KMU and
NAFLU-KMU members during their rallies, in the absence of
proof that these petitioners were committing acts
constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any
form of prior restraint on the press, as well as the warrantless
search of the Tribune offices and whimsical seizure of its
articles for publication and other materials, are
declared UNCONSTITUTIONAL.
No costs.
SO ORDERED

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-45685
November 16, 1937
THE PEOPLE OF THE PHILIPPINE ISLANDS and
HONGKONG & SHANGHAI BANKING
CORPORATION,petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of
Manila, and MARIANO CU UNJIENG, respondents.
Office of the Solicitor General Tuason and City Fiscal Diaz for
the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and
Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte,
and Gibbs and McDonough for respondent Cu Unjieng.
No appearance for respondent Judge.
LAUREL, J.:
This is an original action instituted in this court on August 19,
1937, for the issuance of the writ of certiorari and of
prohibition to the Court of First Instance of Manila so that this
court may review the actuations of the aforesaid Court of
First Instance in criminal case No. 42649 entitled "The People
of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more
particularly the application of the defendant Mariano Cu
Unjieng therein for probation under the provisions of Act No.
4221, and thereafter prohibit the said Court of First Instance
from taking any further action or entertaining further the
aforementioned application for probation, to the end that the
defendant Mariano Cu Unjieng may be forthwith committed
to prison in accordance with the final judgment of conviction
rendered by this court in said case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the
Hongkong and Shanghai Banking Corporation, are
respectively the plaintiff and the offended party, and the
respondent herein Mariano Cu Unjieng is one of the
defendants, in the criminal case entitled "The People of the
Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal
case No. 42649 of the Court of First Instance of Manila and

G.R. No. 41200 of this court. Respondent herein, Hon. Jose O.

Vera, is the Judge ad interim of the seventh branch of the
Court of First Instance of Manila, who heard the application of
the defendant Mariano Cu Unjieng for probation in the
aforesaid criminal case.
The information in the aforesaid criminal case was filed with
the Court of First Instance of Manila on October 15, 1931,
petitioner herein Hongkong and Shanghai Banking
Corporation intervening in the case as private prosecutor.
After a protracted trial unparalleled in the annals of Philippine
jurisprudence both in the length of time spent by the court as
well as in the volume in the testimony and the bulk of the
exhibits presented, the Court of First Instance of Manila, on
January 8, 1934, rendered a judgment of conviction
sentencing the defendant Mariano Cu Unjieng to
indeterminate penalty ranging from four years and two
months of prision correccional to eight years of prision
mayor, to pay the costs and with reservation of civil action to
the offended party, the Hongkong and Shanghai Banking
Corporation. Upon appeal, the court, on March 26, 1935,
modified the sentence to an indeterminate penalty of from
five years and six months of prision correccional to seven
years, six months and twenty-seven days of prision mayor,
but affirmed the judgment in all other respects. Mariano Cu
Unjieng filed a motion for reconsideration and four successive
motions for new trial which were denied on December 17,
1935, and final judgment was accordingly entered on
December 18, 1935. The defendant thereupon sought to
have the case elevated on certiorari to the Supreme Court of
the United States but the latter denied the petition
forcertiorari in
November, 1936. This court, on
November 24, 1936, denied the petition subsequently filed
by the defendant for leave to file a second alternative motion
for reconsideration or new trial and thereafter remanded the
case to the court of origin for execution of the judgment.
The instant proceedings have to do with the application for
probation filed by the herein respondent Mariano Cu Unjieng
on
November 27, 1936, before the trial court, under
the provisions of Act No. 4221 of the defunct Philippine
Legislature. Herein respondent Mariano Cu Unjieng states in
his petition, inter alia, that he is innocent of the crime of
which he was convicted, that he has no criminal record and

that he would observe good conduct in the future. The Court

of First Instance of Manila, Judge Pedro Tuason presiding,
referred the application for probation of the Insular Probation
Office which recommended denial of the same June 18, 1937.
Thereafter, the Court of First Instance of Manila, seventh
branch, Judge Jose O. Vera presiding, set the petition for
hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an
opposition to the granting of probation to the herein
respondent Mariano Cu Unjieng. The private prosecution also
filed an opposition on April 5, 1937, alleging, among other
things, that Act No. 4221, assuming that it has not been
repealed by section 2 of Article XV of the Constitution, is
nevertheless violative of section 1, subsection (1), Article III
of the Constitution guaranteeing equal protection of the laws
for the reason that its applicability is not uniform throughout
the Islands and because section 11 of the said Act endows
the provincial boards with the power to make said law
effective or otherwise in their respective or otherwise in their
respective provinces. The private prosecution also filed a
supplementary opposition on April 19, 1937, elaborating on
the alleged unconstitutionality on Act No. 4221, as an undue
delegation of legislative power to the provincial boards of
several provinces (sec. 1, Art. VI, Constitution). The City
Fiscal concurred in the opposition of the private prosecution
except with respect to the questions raised concerning the
constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera
promulgated a resolution with a finding that "las pruebas no
han establecido de unamanera concluyente la culpabilidad
del peticionario y que todos los hechos probados no son
inconsistentes o incongrentes con su inocencia" and
concludes that the herein respondent Mariano Cu Unjieng "es
inocente por duda racional" of the crime of which he stands
convicted by this court in G.R. No. 41200, but denying the
latter's petition for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las
circunstancias y la historia social que se han expuesto en el
cuerpo de esta resolucion, que hacen al peticionario acreedor
de la misma, una parte de la opinion publica, atizada por los
recelos y las suspicacias, podria levantarse indignada contra
un sistema de probacion que permite atisbar en los

procedimientos ordinarios de una causa criminal perturbando

la quietud y la eficacia de las decisiones ya recaidas al traer
a la superficie conclusiones enteramente differentes, en
menoscabo del interes publico que demanda el respeto de
las leyes y del veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano
Cu Unjieng filed an exception to the resolution denying
probation and a notice of intention to file a motion for
reconsideration. An alternative motion for reconsideration or
new trial was filed by counsel on July 13, 1937. This was
supplemented by an additional motion for reconsideration
submitted on July 14, 1937. The aforesaid motions were set
for hearing on July 31, 1937, but said hearing was postponed
at the petition of counsel for the respondent Mariano Cu
Unjieng because a motion for leave to intervene in the case
as amici curiae signed by thirty-three (thirty-four) attorneys
had just been filed with the trial court. Attorney Eulalio
Chaves whose signature appears in the aforesaid motion
subsequently filed a petition for leave to withdraw his
appearance as amicus curiae on the ground that the motion
for leave to intervene as amici curiae was circulated at a
banquet given by counsel for Mariano Cu Unjieng on the
evening of July 30, 1937, and that he signed the same
"without mature deliberation and purely as a matter of
courtesy to the person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a
motion with the trial court for the issuance of an order of
execution of the judgment of this court in said case and
forthwith to commit the herein respondent Mariano Cu
Unjieng to jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its
opposition to the motion for leave to intervene as amici
curiaeaforementioned, asking that a date be set for a hearing
of the same and that, at all events, said motion should be
denied with respect to certain attorneys signing the same
who were members of the legal staff of the several counsel
for Mariano Cu Unjieng. On August 10, 1937, herein
respondent Judge Jose O. Vera issued an order requiring all
parties including the movants for intervention as amici
curiae to appear before the court on August 14, 1937. On the
last-mentioned date, the Fiscal of the City of Manila moved
for the hearing of his motion for execution of judgment in

preference to the motion for leave to intervene as amici

curiae but, upon objection of counsel for Mariano Cu Unjieng,
he moved for the postponement of the hearing of both
motions. The respondent judge thereupon set the hearing of
the motion for execution on August 21, 1937, but proceeded
to consider the motion for leave to intervene as amici
curiae as in order. Evidence as to the circumstances under
which said motion for leave to intervene as amici curiae was
signed and submitted to court was to have been heard on
August 19, 1937. But at this juncture, herein petitioners
came to this court on extraordinary legal process to put an
end to what they alleged was an interminable proceeding in
the Court of First Instance of Manila which fostered "the
campaign of the defendant Mariano Cu Unjieng for delay in
the execution of the sentence imposed by this Honorable
Court on him, exposing the courts to criticism and ridicule
because of the apparent inability of the judicial machinery to
make effective a final judgment of this court imposed on the
defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was accordingly
suspended upon the issuance of a temporary restraining
order by this court on August 21, 1937.
To support their petition for the issuance of the extraordinary
writs of certiorari and prohibition, herein petitioners allege
that the respondent judge has acted without jurisdiction or in
excess of his jurisdiction:
I. Because said respondent judge lacks the power to place
respondent Mariano Cu Unjieng under probation for the
following reason:
(1) Under section 11 of Act No. 4221, the said of the
Philippine Legislature is made to apply only to the provinces
of the Philippines; it nowhere states that it is to be made
applicable to chartered cities like the City of Manila.
(2) While section 37 of the Administrative Code contains a
proviso to the effect that in the absence of a special
provision, the term "province" may be construed to include
the City of Manila for the purpose of giving effect to laws of
general application, it is also true that Act No. 4221 is not a
law of general application because it is made to apply only to
those provinces in which the respective provincial boards
shall have provided for the salary of a probation officer.

(3) Even if the City of Manila were considered to be a

province, still, Act No. 4221 would not be applicable to it
because it has provided for the salary of a probation officer
as required by section 11 thereof; it being immaterial that
there is an Insular Probation Officer willing to act for the City
of Manila, said Probation Officer provided for in section 10 of
Act No. 4221 being different and distinct from the Probation
Officer provided for in section 11 of the same Act.
II. Because even if the respondent judge originally had
jurisdiction to entertain the application for probation of the
respondent Mariano Cu Unjieng, he nevertheless acted
without jurisdiction or in excess thereof in continuing to
entertain the motion for reconsideration and by failing to
commit Mariano Cu Unjieng to prison after he had
promulgated his resolution of June 28, 1937, denying Mariano
Cu Unjieng's application for probation, for the reason that:
(1) His jurisdiction and power in probation proceedings is
limited by Act No. 4221 to the granting or denying of
applications for probation.
(2) After he had issued the order denying Mariano Cu
Unjieng's petition for probation on June 28, 1937, it became
final and executory at the moment of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a
rehearing of said order or to modify or change the same.
III. Because the respondent judge made a finding that
Mariano Cu Unjieng is innocent of the crime for which he was
convicted by final judgment of this court, which finding is not
only presumptuous but without foundation in fact and in law,
and is furthermore in contempt of this court and a violation of
the respondent's oath of office as ad interim judge of first
instance.
IV. Because the respondent judge has violated and continues
to violate his duty, which became imperative when he issued
his order of June 28, 1937, denying the application for
probation, to commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy
and adequate remedy in the ordinary course of law.
In a supplementary petition filed on September 9, 1937, the
petitioner Hongkong and Shanghai Banking Corporation
further contends that Act No. 4221 of the Philippine
Legislature providing for a system of probation for persons

eighteen years of age or over who are convicted of crime, is

unconstitutional because it is violative of section 1,
subsection (1), Article III, of the Constitution of the Philippines
guaranteeing equal protection of the laws because it confers
upon the provincial board of its province the absolute
discretion to make said law operative or otherwise in their
respective provinces, because it constitutes an unlawful and
improper delegation to the provincial boards of the several
provinces of the legislative power lodged by the Jones Law
(section 8) in the Philippine Legislature and by the
Constitution (section 1, Art. VI) in the National Assembly; and
for the further reason that it gives the provincial boards, in
contravention of the Constitution (section 2, Art. VIII) and the
Jones Law (section 28), the authority to enlarge the powers of
the Court of First Instance of different provinces without
uniformity. In another supplementary petition dated
September 14, 1937, the Fiscal of the City of Manila, in behalf
of one of the petitioners, the People of the Philippine Islands,
concurs for the first time with the issues raised by other
petitioner regarding the constitutionality of Act No. 4221, and
on the oral argument held on October 6, 1937, further
elaborated on the theory that probation is a form of reprieve
and therefore Act. No. 4221 is an encroachment on the
exclusive power of the Chief Executive to grant pardons and
reprieves. On October 7, 1937, the City Fiscal filed two
memorandums in which he contended that Act No. 4221 not
only encroaches upon the pardoning power to the executive,
but also constitute an unwarranted delegation of legislative
power and a denial of the equal protection of the laws. On
October 9, 1937, two memorandums, signed jointly by the
City Fiscal and the Solicitor-General, acting in behalf of the
People of the Philippine Islands, and by counsel for the
petitioner, the Hongkong and Shanghai Banking Corporation,
one sustaining the power of the state to impugn the validity
of its own laws and the other contending that Act No. 4221
constitutes an unwarranted delegation of legislative power,
were presented. Another joint memorandum was filed by the
same persons on the same day, October 9, 1937, alleging
that Act No. 4221 is unconstitutional because it denies the
equal protection of the laws and constitutes an unlawful
delegation of legislative power and, further, that the whole
Act is void: that the Commonwealth is not estopped from

questioning the validity of its laws; that the private

prosecution may intervene in probation proceedings and may
attack the probation law as unconstitutional; and that this
court may pass upon the constitutional question in
prohibition proceedings.
Respondents in their answer dated August 31, 1937, as well
as in their oral argument and memorandums, challenge each
and every one of the foregoing proposition raised by the
petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in
law to warrant the issuance of the writ of certiorari or of
prohibition.
(2) That the aforesaid petition is premature because the
remedy sought by the petitioners is the very same remedy
prayed for by them before the trial court and was still
pending resolution before the trial court when the present
petition was filed with this court.
(3) That the petitioners having themselves raised the
question as to the execution of judgment before the trial
court, said trial court has acquired exclusive jurisdiction to
resolve the same under the theory that its resolution denying
probation is unappealable.
(4) That upon the hypothesis that this court has concurrent
jurisdiction with the Court of First Instance to decide the
question as to whether or not the execution will lie, this court
nevertheless cannot exercise said jurisdiction while the Court
of First Instance has assumed jurisdiction over the same upon
motion of herein petitioners themselves.
(5) That upon the procedure followed by the herein
petitioners in seeking to deprive the trial court of its
jurisdiction over the case and elevate the proceedings to this
court, should not be tolerated because it impairs the
authority and dignity of the trial court which court while
sitting in the probation cases is "a court of limited jurisdiction
but of great dignity."
(6) That under the supposition that this court has jurisdiction
to resolve the question submitted to and pending resolution
by the trial court, the present action would not lie because
the resolution of the trial court denying probation is
appealable; for although the Probation Law does not
specifically provide that an applicant for probation may

appeal from a resolution of the Court of First Instance

denying probation, still it is a general rule in this jurisdiction
that a final order, resolution or decision of an inferior court is
appealable to the superior court.
(7) That the resolution of the trial court denying probation of
herein respondent Mariano Cu Unjieng being appealable, the
same had not become final and executory for the reason that
the said respondent had filed an alternative motion for
reconsideration and new trial within the requisite period of
fifteen days, which motion the trial court was able to resolve
in view of the restraining order improvidently and
erroneously issued by this court.lawphi1.net
(8) That the Fiscal of the City of Manila had by implication
admitted that the resolution of the trial court denying
probation is not final and unappealable when he presented
his answer to the motion for reconsideration and agreed to
the postponement of the hearing of the said motion.
(9) That under the supposition that the order of the trial court
denying probation is not appealable, it is incumbent upon the
accused to file an action for the issuance of the writ
ofcertiorari with mandamus, it appearing that the trial court,
although it believed that the accused was entitled to
probation, nevertheless denied probation for fear of criticism
because the accused is a rich man; and that, before a
petition for certiorari grounded on an irregular exercise of
jurisdiction by the trial court could lie, it is incumbent upon
the petitioner to file a motion for reconsideration specifying
the error committed so that the trial court could have an
opportunity to correct or cure the same.
(10) That on hypothesis that the resolution of this court is not
appealable, the trial court retains its jurisdiction within a
reasonable time to correct or modify it in accordance with
law and justice; that this power to alter or modify an order or
resolution is inherent in the courts and may be exercise
either motu proprio or upon petition of the proper party, the
petition in the latter case taking the form of a motion for
reconsideration.
(11) That on the hypothesis that the resolution of the trial
court is appealable as respondent allege, said court cannot
order execution of the same while it is on appeal, for then the
appeal would not be availing because the doors of probation
will be closed from the moment the accused commences to

serve his sentence (Act No. 4221, sec. 1; U.S. vs. Cook, 19
Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for
the respondents maintain that Act No. 4221 is constitutional
because, contrary to the allegations of the petitioners, it does
not constitute an undue delegation of legislative power, does
not infringe the equal protection clause of the Constitution,
and does not encroach upon the pardoning power of the
Executive. In an additional memorandum filed on the same
date, counsel for the respondents reiterate the view that
section 11 of Act No. 4221 is free from constitutional
objections and contend, in addition, that the private
prosecution may not intervene in probation proceedings,
much less question the validity of Act No. 4221; that both the
City Fiscal and the Solicitor-General are estopped from
questioning the validity of the Act; that the validity of Act
cannot be attacked for the first time before this court; that
probation in unavailable; and that, in any event, section 11 of
the Act No. 4221 is separable from the rest of the Act. The
last memorandum for the respondent Mariano Cu Unjieng
was denied for having been filed out of time but was
admitted by resolution of this court and filed anew on
November 5, 1937. This memorandum elaborates on some of
the points raised by the respondents and refutes those
brought up by the petitioners.
In the scrutiny of the pleadings and examination of the
various aspects of the present case, we noted that the court
below, in passing upon the merits of the application of the
respondent Mariano Cu Unjieng and in denying said
application assumed the task not only of considering the
merits of the application, but of passing upon the culpability
of the applicant, notwithstanding the final pronouncement of
guilt by this court. (G.R. No. 41200.) Probation implies guilt
be final judgment. While a probation case may look into the
circumstances attending the commission of the offense, this
does not authorize it to reverse the findings and conclusive of
this court, either directly or indirectly, especially wherefrom
its own admission reliance was merely had on the printed
briefs, averments, and pleadings of the parties. As already
observed by this court in Shioji vs. Harvey ([1922], 43 Phil.,
333, 337), and reiterated in subsequent cases, "if each and
every Court of First Instance could enjoy the privilege of

overruling decisions of the Supreme Court, there would be no

end to litigation, and judicial chaos would result." A becoming
modesty of inferior courts demands conscious realization of
the position that they occupy in the interrelation and
operation of the intergrated judicial system of the nation.
After threshing carefully the multifarious issues raised by
both counsel for the petitioners and the respondents, this
court prefers to cut the Gordian knot and take up at once the
two fundamental questions presented, namely, (1) whether
or not the constitutionality of Act No. 4221 has been properly
raised in these proceedings; and (2) in the affirmative,
whether or not said Act is constitutional. Considerations of
these issues will involve a discussion of certain incidental
questions raised by the parties.
To arrive at a correct conclusion on the first question, resort
to certain guiding principles is necessary. It is a well-settled
rule that the constitutionality of an act of the legislature will
not be determined by the courts unless that question is
properly raised and presented inappropriate cases and is
necessary to a determination of the case; i.e., the issue of
constitutionality must be the very lis mota presented. (McGirr
vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L.,
pp. 76, 77; 12 C. J., pp. 780-782, 783.)
The question of the constitutionality of an act of the
legislature is frequently raised in ordinary actions.
Nevertheless, resort may be made to extraordinary legal
remedies, particularly where the remedies in the ordinary
course of law even if available, are not plain, speedy and
adequate. Thus, in Cu Unjieng vs. Patstone([1922]), 42 Phil.,
818), this court held that the question of the constitutionality
of a statute may be raised by the petitioner
in mandamus proceedings (see, also, 12 C. J., p. 783); and
in Government of the Philippine Islands vs. Springer ([1927],
50 Phil., 259 [affirmed in Springer vs. Government of the
Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]),
this court declared an act of the legislature unconstitutional
in an action of quo warrantobrought in the name of the
Government of the Philippines. It has also been held that the
constitutionality of a statute may be questioned in habeas
corpus proceedings (12 C. J., p. 783; Bailey on Habeas
Corpus, Vol. I, pp. 97, 117), although there are authorities to
the contrary; on an application for injunction to restrain

action under the challenged statute (mandatory, see Cruz vs.

Youngberg [1931], 56 Phil., 234); and even on an application
for preliminary injunction where the determination of the
constitutional question is necessary to a decision of the case.
(12 C. J., p. 783.) The same may be said as
regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad
[1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed.,
1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280;
81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N.
S], 843, and cases cited). The case ofYu Cong Eng vs.
Trinidad, supra, decided by this court twelve years ago was,
like the present one, an original action for certiorari and
prohibition. The constitutionality of Act No. 2972, popularly
known as the Chinese Bookkeeping Law, was there
challenged by the petitioners, and the constitutional issue
was not met squarely by the respondent in a demurrer. A
point was raised "relating to the propriety of the
constitutional question being decided in original proceedings
in prohibition." This court decided to take up the
constitutional question and, with two justices dissenting, held
that Act No. 2972 was constitutional. The case was elevated
on writ of certiorari to the Supreme Court of the United
States which reversed the judgment of this court and held
that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.)
On the question of jurisdiction, however, the Federal
Supreme Court, though its Chief Justice, said:
By the Code of Civil Procedure of the Philippine Islands,
section 516, the Philippine supreme court is granted
concurrent jurisdiction in prohibition with courts of first
instance over inferior tribunals or persons, and original
jurisdiction over courts of first instance, when such courts are
exercising functions without or in excess of their jurisdiction.
It has been held by that court that the question of the validity
of the criminal statute must usually be raised by a defendant
in the trial court and be carried regularly in review to the
Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del
Rosario, 26 Phil., 192). But in this case where a new act
seriously affected numerous persons and extensive property
rights, and was likely to cause a multiplicity of actions, the
Supreme Court exercised its discretion to bring the issue to
the act's validity promptly before it and decide in the interest
of the orderly administration of justice. The court relied by

analogy upon the cases of Ex parte Young (209 U. S., 123;52

Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14
Ann. Ca., 764; Traux vs. Raich, 239 U. S., 33; 60 Law. ed.,
131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas.,
1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed.,
755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas.
1918A, 1024). Although objection to the jurisdiction was raise
by demurrer to the petition, this is now disclaimed on behalf
of the respondents, and both parties ask a decision on the
merits. In view of the broad powers in prohibition granted to
that court under the Island Code, we acquiesce in the desire
of the parties.
The writ of prohibition is an extraordinary judicial writ issuing
out of a court of superior jurisdiction and directed to an
inferior court, for the purpose of preventing the inferior
tribunal from usurping a jurisdiction with which it is not
legally vested. (High, Extraordinary Legal Remedies, p. 705.)
The general rule, although there is a conflict in the cases, is
that the merit of prohibition will not lie whether the inferior
court has jurisdiction independent of the statute the
constitutionality of which is questioned, because in such
cases the interior court having jurisdiction may itself
determine the constitutionality of the statute, and its
decision may be subject to review, and consequently the
complainant in such cases ordinarily has adequate remedy
by appeal without resort to the writ of prohibition. But where
the inferior court or tribunal derives its jurisdiction
exclusively from an unconstitutional statute, it may be
prevented by the writ of prohibition from enforcing that
statute. (50 C. J., 670; Ex parte Round tree [1874, 51 Ala.,
42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish
[1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk
[1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46
S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am.
Dec., 669.)
Courts of First Instance sitting in probation proceedings
derived their jurisdiction solely from Act No. 4221 which
prescribes in detailed manner the procedure for granting
probation to accused persons after their conviction has
become final and before they have served their sentence. It
is true that at common law the authority of the courts to
suspend temporarily the execution of the sentence is

recognized and, according to a number of state courts,

including those of Massachusetts, Michigan, New York, and
Ohio, the power is inherent in the courts (Commonwealth vs.
Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel
[1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth
vs. Court of Session [1894], 141 N. Y., 288; Weber vs. State
[1898], 58 Ohio St., 616). But, in the leading case of Ex
parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129;
L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B,
355), the Supreme Court of the United States expressed the
opinion that under the common law the power of the court
was limited to temporary suspension, and brushed aside the
contention as to inherent judicial power saying, through Chief
Justice White:
Indisputably under our constitutional system the right to try
offenses against the criminal laws and upon conviction to
impose the punishment provided by law is judicial, and it is
equally to be conceded that, in exerting the powers vested in
them on such subject, courts inherently possess ample right
to exercise reasonable, that is, judicial, discretion to enable
them to wisely exert their authority. But these concessions
afford no ground for the contention as to power here made,
since it must rest upon the proposition that the power to
enforce begets inherently a discretion to permanently refuse
to do so. And the effect of the proposition urged upon the
distribution of powers made by the Constitution will become
apparent when it is observed that indisputable also is it that
the authority to define and fix the punishment for crime is
legislative and includes the right in advance to bring within
judicial discretion, for the purpose of executing the statute,
elements of consideration which would be otherwise beyond
the scope of judicial authority, and that the right to relieve
from the punishment, fixed by law and ascertained according
to the methods by it provided belongs to the executive
department.
Justice Carson, in his illuminating concurring opinion in the
case of Director of Prisons vs. Judge of First Instance of
Cavite (29 Phil., 265), decided by this court in 1915, also
reached the conclusion that the power to suspend the
execution of sentences pronounced in criminal cases is not
inherent in the judicial function. "All are agreed", he said,
"that in the absence of statutory authority, it does not lie

within the power of the courts to grant such suspensions." (at

p. 278.) Both petitioner and respondents are correct,
therefore, when they argue that a Court of First Instance
sitting in probation proceedings is a court of limited
jurisdiction. Its jurisdiction in such proceedings is conferred
exclusively by Act No. 4221 of the Philippine Legislature.
It is, of course, true that the constitutionality of a statute will
not be considered on application for prohibition where the
question has not been properly brought to the attention of
the court by objection of some kind (Hill vs. Tarver [1901],
130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914],
260 Mo., 120; 168 S. W., 746). In the case at bar, it is
unquestionable that the constitutional issue has been
squarely presented not only before this court by the
petitioners but also before the trial court by the private
prosecution. The respondent, Hon. Jose O Vera, however,
acting as judge of the court below, declined to pass upon the
question on the ground that the private prosecutor, not being
a party whose rights are affected by the statute, may not
raise said question. The respondent judge cited Cooley on
Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp.
760 and 762), and McGlue vs. Essex County ([1916], 225
Mass., 59; 113 N. E., 742, 743), as authority for the
proposition that a court will not consider any attack made on
the constitutionality of a statute by one who has no interest
in defeating it because his rights are not affected by its
operation. The respondent judge further stated that it may
not motu proprio take up the constitutional question and,
agreeing with Cooley that "the power to declare a legislative
enactment void is one which the judge, conscious of the
fallibility of the human judgment, will shrink from exercising
in any case where he can conscientiously and with due
regard to duty and official oath decline the responsibility"
(Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded
on the assumption that Act No. 4221 is constitutional. While
therefore, the court a quo admits that the constitutional
question was raised before it, it refused to consider the
question solely because it was not raised by a proper party.
Respondents herein reiterates this view. The argument is
advanced that the private prosecution has no personality to
appear in the hearing of the application for probation of
defendant Mariano Cu Unjieng in criminal case No. 42648 of

the Court of First Instance of Manila, and hence the issue of

constitutionality was not properly raised in the lower court.
Although, as a general rule, only those who are parties to a
suit may question the constitutionality of a statute involved
in a judicial decision, it has been held that since the decree
pronounced by a court without jurisdiction is void, where the
jurisdiction of the court depends on the validity of the statute
in question, the issue of the constitutionality will be
considered on its being brought to the attention of the court
by persons interested in the effect to be given the statute.(12
C. J., sec. 184, p. 766.) And, even if we were to concede that
the issue was not properly raised in the court below by the
proper party, it does not follow that the issue may not be
here raised in an original action of certiorari and prohibitions.
It is true that, as a general rule, the question of
constitutionality must be raised at the earliest opportunity,
so that if not raised by the pleadings, ordinarily it may not be
raised at the trial, and if not raised in the trial court, it will
not considered on appeal. (12 C. J., p. 786. See,
also,Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil.,
192, 193-195.) But we must state that the general rule
admits of exceptions. Courts, in the exercise of sounds
discretion, may determine the time when a question affecting
the constitutionality of a statute should be presented. (In
re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal
cases, although there is a very sharp conflict of authorities, it
is said that the question may be raised for the first time at
any stage of the proceedings, either in the trial court or on
appeal. (12 C. J., p. 786.) Even in civil cases, it has been held
that it is the duty of a court to pass on the constitutional
question, though raised for the first time on appeal, if it
appears that a determination of the question is necessary to
a decision of the case. (McCabe's Adm'x vs. Maysville & B. S.
R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St.
Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108;
Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S.
W., 913.) And it has been held that a constitutional question
will be considered by an appellate court at any time, where it
involves the jurisdiction of the court below (State vs. Burke
[1911], 175 Ala., 561; 57 S., 870.) As to the power of this
court to consider the constitutional question raised for the
first time before this court in these proceedings, we turn

again and point with emphasis to the case of Yu Cong Eng vs.
Trinidad, supra. And on the hypotheses that the Hongkong &
Shanghai Banking Corporation, represented by the private
prosecution, is not the proper party to raise the constitutional
question here a point we do not now have to decide we
are of the opinion that the People of the Philippines,
represented by the Solicitor-General and the Fiscal of the City
of Manila, is such a proper party in the present proceedings.
The unchallenged rule is that the person who impugns the
validity of a statute must have a personal and substantial
interest in the case such that he has sustained, or will
sustained, direct injury as a result of its enforcement. It goes
without saying that if Act No. 4221 really violates the
constitution, the People of the Philippines, in whose name the
present action is brought, has a substantial interest in having
it set aside. Of grater import than the damage caused by the
illegal expenditure of public funds is the mortal wound
inflicted upon the fundamental law by the enforcement of an
invalid statute. Hence, the well-settled rule that the state can
challenge the validity of its own laws. In Government of the
Philippine Islands vs. Springer ([1927]), 50 Phil., 259
(affirmed in Springer vs. Government of the Philippine Islands
[1928], 277 U.S., 189; 72 Law. ed., 845), this court declared
an act of the legislature unconstitutional in an action
instituted in behalf of the Government of the Philippines. In
Attorney General vs. Perkins ([1889], 73 Mich., 303, 311,
312; 41 N. W. 426, 428, 429), the State of Michigan, through
its Attorney General, instituted quo warranto proceedings to
test the right of the respondents to renew a mining
corporation, alleging that the statute under which the
respondents base their right was unconstitutional because it
impaired the obligation of contracts. The capacity of the chief
law officer of the state to question the constitutionality of the
statute was though, as a general rule, only those who are
parties to a suit may question the constitutionality of a
statute involved in a judicial decision, it has been held that
since the decree pronounced by a court without jurisdiction in
void, where the jurisdiction of the court depends on the
validity of the statute in question, the issue of
constitutionality will be considered on its being brought to
the attention of the court by persons interested in the effect
to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if

we were to concede that the issue was not properly raised in

the court below by the proper party, it does not follow that
the issue may not be here raised in an original action of
certiorari and prohibition. It is true that, as a general rule, the
question of constitutionality must be raised at the earliest
opportunity, so that if not raised by the pleadings, ordinarily
it may not be raised a the trial, and if not raised in the trial
court, it will not be considered on appeal. (12 C.J., p. 786.
See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26
Phil., 192, 193-195.) But we must state that the general rule
admits of exceptions. Courts, in the exercise of sound
discretion, may determine the time when a question affecting
the constitutionality of a statute should be presented. (In re
Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal cases,
although there is a very sharp conflict of authorities, it is said
that the question may be raised for the first time at any state
of the proceedings, either in the trial court or on appeal. (12
C.J., p. 786.) Even in civil cases, it has been held that it is the
duty of a court to pass on the constitutional question, though
raised for first time on appeal, if it appears that a
determination of the question is necessary to a decision of
the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910],
136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage
Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs. St.
Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it
has been held that a constitutional question will be
considered by an appellate court at any time, where it
involves the jurisdiction of the court below (State vs. Burke
[1911], 175 Ala., 561; 57 S., 870.) As to the power of this
court to consider the constitutional question raised for the
first time before this court in these proceedings, we turn
again and point with emphasis to the case of Yu Cong Eng.
vs. Trinidad, supra. And on the hypothesis that the Hongkong
& Shanghai Banking Corporation, represented by the private
prosecution, is not the proper party to raise the constitutional
question here a point we do not now have to decide we
are of the opinion that the People of the Philippines,
represented by the Solicitor-General and the Fiscal of the City
of Manila, is such a proper party in the present proceedings.
The unchallenged rule is that the person who impugns the
validity of a statute must have a personal and substantial
interest in the case such that he has sustained, or will

sustain, direct injury as a result of its enforcement. It goes

without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose name
the present action is brought, has a substantial interest in
having it set aside. Of greater import than the damage
caused by the illegal expenditure of public funds is the mortal
wound inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-settled
rule that the state can challenge the validity of its own laws.
In Government of the Philippine Islands vs. Springer ([1927]),
50 Phil., 259 (affirmed in Springer vs. Government of the
Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845),
this court declared an act of the legislature unconstitutional
in an action instituted in behalf of the Government of the
Philippines. In Attorney General vs. Perkings([1889], 73 Mich.,
303, 311, 312; 41 N.W., 426, 428, 429), the State of
Michigan, through its Attorney General, instituted quo
warranto proceedings to test the right of the respondents to
renew a mining corporation, alleging that the statute under
which the respondents base their right was unconstitutional
because it impaired the obligation of contracts. The capacity
of the chief law officer of the state to question the
constitutionality of the statute was itself questioned. Said the
Supreme Court of Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped from
questioning the validity of a law enacted by their
representatives; that to an accusation by the people of
Michigan of usurpation their government, a statute enacted
by the people of Michigan is an adequate answer. The last
proposition is true, but, if the statute relied on in justification
is unconstitutional, it is statute only in form, and lacks the
force of law, and is of no more saving effect to justify action
under it than if it had never been enacted. The constitution is
the supreme law, and to its behests the courts, the
legislature, and the people must bow . . . The legislature and
the respondents are not the only parties in interest upon
such constitutional questions. As was remarked by Mr. Justice
Story, in speaking of an acquiescence by a party affected by
an unconstitutional act of the legislature: "The people have a
deep and vested interest in maintaining all the constitutional
limitations upon the exercise of legislative powers." (Allen vs.
Mckeen, 1 Sum., 314.)

In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40),
an original action (mandamus) was brought by the AttorneyGeneral of Kansas to test the constitutionality of a statute of
the state. In disposing of the question whether or not the
state may bring the action, the Supreme Court of Kansas
said:
. . . the state is a proper party indeed, the proper party
to bring this action. The state is always interested where the
integrity of its Constitution or statutes is involved.
"It has an interest in seeing that the will of the Legislature is
not disregarded, and need not, as an individual plaintiff must,
show grounds of fearing more specific injury. (State vs.
Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs.
Lawrence, 80 Kan., 707; 103 Pac., 839.)
Where the constitutionality of a statute is in doubt the state's
law officer, its Attorney-General, or county attorney, may
exercise his bet judgment as to what sort of action he will
bring to have the matter determined, either by quo warranto
to challenge its validity (State vs. Johnson, 61 Kan., 803; 60
Pac., 1068; 49 L.R.A., 662), by mandamus to compel
obedience to its terms (State vs. Dolley, 82 Kan., 533; 108
Pac., 846), or by injunction to restrain proceedings under its
questionable provisions (State ex rel. vs. City of Neodesha, 3
Kan. App., 319; 45 Pac., 122).
Other courts have reached the same conclusion (See State
vs. St. Louis S. W. Ry. Co. [1917], 197 S. W., 1006; State vs.
S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley
[1935], 181 La., 597; 160 S., 91; State vs. Board of County
Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn
vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs.
State {1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins
[1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited,
the Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district
attorney, being charged with the duty of enforcing the laws,
has no right to plead that a law is unconstitutional. In support
of the argument three decisions are cited, viz.: State ex rel.
Hall, District Attorney, vs. Judge of Tenth Judicial District (33
La. Ann., 1222); State ex rel. Nicholls, Governor vs.
Shakespeare, Mayor of New Orleans (41 Ann., 156; 6 So.,
592); and State ex rel., Banking Co., etc. vs. Heard, Auditor
(47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These

decisions do not forbid a district attorney to plead that a

statute is unconstitutional if he finds if in conflict with one
which it is his duty to enforce. In State ex rel. Hall, District
Attorney, vs. Judge, etc., the ruling was the judge should not,
merely because he believed a certain statute to be
unconstitutional forbid the district attorney to file a bill of
information charging a person with a violation of the statute.
In other words, a judge should not judicially declare a statute
unconstitutional until the question of constitutionality is
tendered for decision, and unless it must be decided in order
to determine the right of a party litigant. Stateex rel. Nicholls,
Governor, etc., is authority for the proposition merely that an
officer on whom a statute imposes the duty of enforcing its
provisions cannot avoid the duty upon the ground that he
considers the statute unconstitutional, and hence in
enforcing the statute he is immune from responsibility if the
statute be unconstitutional. State ex rel. Banking Co., etc., is
authority for the proposition merely that executive officers,
e.g., the state auditor and state treasurer, should not decline
to perform ministerial duties imposed upon them by a
statute, on the ground that they believe the statute is
unconstitutional.
It is the duty of a district attorney to enforce the criminal
laws of the state, and, above all, to support the Constitution
of the state. If, in the performance of his duty he finds two
statutes in conflict with each other, or one which repeals
another, and if, in his judgment, one of the two statutes is
unconstitutional, it is his duty to enforce the other; and, in
order to do so, he is compelled to submit to the court, by way
of a plea, that one of the statutes is unconstitutional. If it
were not so, the power of the Legislature would be free from
constitutional limitations in the enactment of criminal laws.
The respondents do not seem to doubt seriously the
correctness of the general proposition that the state may
impugn the validity of its laws. They have not cited any
authority running clearly in the opposite direction. In fact,
they appear to have proceeded on the assumption that the
rule as stated is sound but that it has no application in the
present case, nor may it be invoked by the City Fiscal in
behalf of the People of the Philippines, one of the petitioners
herein, the principal reasons being that the validity before
this court, that the City Fiscal is estopped from attacking the

validity of the Act and, not authorized challenge the validity

of the Act in its application outside said city. (Additional
memorandum of respondents, October 23, 1937, pp. 8,. 10,
17 and 23.)
The mere fact that the Probation Act has been repeatedly
relied upon the past and all that time has not been attacked
as unconstitutional by the Fiscal of Manila but, on the
contrary, has been impliedly regarded by him as
constitutional, is no reason for considering the People of the
Philippines estopped from nor assailing its validity. For courts
will pass upon a constitutional questions only when
presented before it in bona fide cases for determination, and
the fact that the question has not been raised before is not a
valid reason for refusing to allow it to be raised later. The
fiscal and all others are justified in relying upon the statute
and treating it as valid until it is held void by the courts in
proper cases.
It remains to consider whether the determination of the
constitutionality of Act No. 4221 is necessary to the
resolution of the instant case. For, ". . . while the court will
meet the question with firmness, where its decision is
indispensable, it is the part of wisdom, and just respect for
the legislature, renders it proper, to waive it, if the case in
which it arises, can be decided on other points." (Ex
parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447.
Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has
been held that the determination of a constitutional question
is necessary whenever it is essential to the decision of the
case (12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy
[1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y.,
1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242
U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan
vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs.
Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as
where the right of a party is founded solely on a statute the
validity of which is attacked. (12 C.J., p. 782, citing Central
Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972;
Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no
doubt that the respondent Cu Unjieng draws his privilege to
probation solely from Act No. 4221 now being assailed.
Apart from the foregoing considerations, that court will also
take cognizance of the fact that the Probation Act is a new

addition to our statute books and its validity has never before
been passed upon by the courts; that may persons accused
and convicted of crime in the City of Manila have applied for
probation; that some of them are already on probation; that
more people will likely take advantage of the Probation Act in
the future; and that the respondent Mariano Cu Unjieng has
been at large for a period of about four years since his first
conviction. All wait the decision of this court on the
constitutional question. Considering, therefore, the
importance which the instant case has assumed and to
prevent multiplicity of suits, strong reasons of public policy
demand that the constitutionality of Act No. 4221 be now
resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385;
[1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77,
78; People vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442,
444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147
Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga
and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong
Eng vs. Trinidad, supra, an analogous situation confronted us.
We said: "Inasmuch as the property and personal rights of
nearly twelve thousand merchants are affected by these
proceedings, and inasmuch as Act No. 2972 is a new law not
yet interpreted by the courts, in the interest of the public
welfare and for the advancement of public policy, we have
determined to overrule the defense of want of jurisdiction in
order that we may decide the main issue. We have here an
extraordinary situation which calls for a relaxation of the
general rule." Our ruling on this point was sustained by the
Supreme Court of the United States. A more binding authority
in support of the view we have taken can not be found.
We have reached the conclusion that the question of the
constitutionality of Act No. 4221 has been properly raised.
Now for the main inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and duty
of the judiciary to enforce the Constitution. This court, by
clear implication from the provisions of section 2, subsection
1, and section 10, of Article VIII of the Constitution, may
declare an act of the national legislature invalid because in
conflict with the fundamental lay. It will not shirk from its
sworn duty to enforce the Constitution. And, in clear cases, it
will not hesitate to give effect to the supreme law by setting

aside a statute in conflict therewith. This is of the essence of

judicial duty.
This court is not unmindful of the fundamental criteria in
cases of this nature that all reasonable doubts should be
resolved in favor of the constitutionality of a statute. An act
of the legislature approved by the executive, is presumed to
be within constitutional limitations. The responsibility of
upholding the Constitution rests not on the courts alone but
on the legislature as well. "The question of the validity of
every statute is first determined by the legislative
department of the government itself." (U.S. vs. Ten Yu [1912],
24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913],
24 Phil., 250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a
statute finally comes before the courts sustained by the
sanction of the executive. The members of the Legislature
and the Chief Executive have taken an oath to support the
Constitution and it must be presumed that they have been
true to this oath and that in enacting and sanctioning a
particular law they did not intend to violate the Constitution.
The courts cannot but cautiously exercise its power to
overturn the solemn declarations of two of the three grand
departments of the governments. (6 R.C.L., p. 101.) Then,
there is that peculiar political philosophy which bids the
judiciary to reflect the wisdom of the people as expressed
through an elective Legislature and an elective Chief
Executive. It follows, therefore, that the courts will not set
aside a law as violative of the Constitution except in a clear
case. This is a proposition too plain to require a citation of
authorities.
One of the counsel for respondents, in the course of his
impassioned argument, called attention to the fact that the
President of the Philippines had already expressed his opinion
against the constitutionality of the Probation Act, adverting
that as to the Executive the resolution of this question was a
foregone conclusion. Counsel, however, reiterated his
confidence in the integrity and independence of this court.
We take notice of the fact that the President in his message
dated September 1, 1937, recommended to the National
Assembly the immediate repeal of the Probation Act (No.
4221); that this message resulted in the approval of Bill No.
2417 of the Nationality Assembly repealing the probation Act,
subject to certain conditions therein mentioned; but that said

bill was vetoed by the President on September 13, 1937,

much against his wish, "to have stricken out from the statute
books of the Commonwealth a law . . . unfair and very likely
unconstitutional." It is sufficient to observe in this connection
that, in vetoing the bill referred to, the President exercised
his constitutional prerogative. He may express the reasons
which he may deem proper for taking such a step, but his
reasons are not binding upon us in the determination of
actual controversies submitted for our determination.
Whether or not the Executive should express or in any
manner insinuate his opinion on a matter encompassed
within his broad constitutional power of veto but which
happens to be at the same time pending determination in
this court is a question of propriety for him exclusively to
decide or determine. Whatever opinion is expressed by him
under these circumstances, however, cannot sway our
judgment on way or another and prevent us from taking what
in our opinion is the proper course of action to take in a given
case. It if is ever necessary for us to make any vehement
affirmance during this formative period of our political
history, it is that we are independent of the Executive no less
than of the Legislative department of our government
independent in the performance of our functions, undeterred
by any consideration, free from politics, indifferent to
popularity, and unafraid of criticism in the accomplishment of
our sworn duty as we see it and as we understand it.
The constitutionality of Act No. 4221 is challenged on three
principal grounds: (1) That said Act encroaches upon the
pardoning power of the Executive; (2) that its constitutes an
undue delegation of legislative power and (3) that it denies
the equal protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916,
commonly known as the Jones Law, in force at the time of the
approval of Act No. 4221, otherwise known as the Probation
Act, vests in the Governor-General of the Philippines "the
exclusive power to grant pardons and reprieves and remit
fines and forfeitures". This power is now vested in the
President of the Philippines. (Art. VII, sec. 11, subsec. 6.) The
provisions of the Jones Law and the Constitution differ in
some respects. The adjective "exclusive" found in the Jones
Law has been omitted from the Constitution. Under the Jones
Law, as at common law, pardon could be granted any time

after the commission of the offense, either before or after

conviction (Vide Constitution of the United States, Art. II, sec.
2;In re Lontok [1922], 43 Phil., 293). The Governor-General of
the Philippines was thus empowered, like the President of the
United States, to pardon a person before the facts of the case
were fully brought to light. The framers of our Constitution
thought this undesirable and, following most of the state
constitutions, provided that the pardoning power can only be
exercised "after conviction". So, too, under the new
Constitution, the pardoning power does not extend to "cases
of impeachment". This is also the rule generally followed in
the United States (Vide Constitution of the United States, Art.
II, sec. 2). The rule in England is different. There, a royal
pardon can not be pleaded in bar of an impeachment; "but,"
says Blackstone, "after the impeachment has been solemnly
heard and determined, it is not understood that the king's
royal grace is further restrained or abridged." (Vide, Ex
parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs.
Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling
vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The
reason for the distinction is obvious. In England, Judgment on
impeachment is not confined to mere "removal from office
and disqualification to hold and enjoy any office of honor,
trust, or profit under the Government" (Art. IX, sec. 4,
Constitution of the Philippines) but extends to the whole
punishment attached by law to the offense committed. The
House of Lords, on a conviction may, by its sentence, inflict
capital punishment, perpetual banishment, perpetual
banishment, fine or imprisonment, depending upon the
gravity of the offense committed, together with removal from
office and incapacity to hold office. (Com. vs.
Lockwood, supra.) Our Constitution also makes specific
mention of "commutation" and of the power of the executive
to impose, in the pardons he may grant, such conditions,
restrictions and limitations as he may deem proper. Amnesty
may be granted by the President under the Constitution but
only with the concurrence of the National Assembly. We need
not dwell at length on the significance of these fundamental
changes. It is sufficient for our purposes to state that the
pardoning power has remained essentially the same. The
question is: Has the pardoning power of the Chief Executive
under the Jones Law been impaired by the Probation Act?

As already stated, the Jones Law vests the pardoning power

exclusively in the Chief Executive. The exercise of the power
may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the
executive cannot be taken away nor fettered by any
legislative restrictions, nor can like power be given by the
legislature to any other officer or authority. The coordinate
departments of government have nothing to do with the
pardoning power, since no person properly belonging to one
of the departments can exercise any powers appertaining to
either of the others except in cases expressly provided for by
the constitution." (20 R.C.L., pp., , and cases cited.) " . . .
where the pardoning power is conferred on the executive
without express or implied limitations, the grant is exclusive,
and the legislature can neither exercise such power itself nor
delegate it elsewhere, nor interfere with or control the proper
exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases cited.)
If Act No. 4221, then, confers any pardoning power upon the
courts it is for that reason unconstitutional and void. But does
it?
In the famous Killitts decision involving an embezzlement
case, the Supreme Court of the United States ruled in 1916
that an order indefinitely suspending sentenced was void.
(Ex parte United States [1916], 242 U.S., 27; 61 Law. ed.,
129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas.
1917B, 355.) Chief Justice White, after an exhaustive review
of the authorities, expressed the opinion of the court that
under the common law the power of the court was limited to
temporary suspension and that the right to suspend
sentenced absolutely and permanently was vested in the
executive branch of the government and not in the judiciary.
But, the right of Congress to establish probation by statute
was conceded. Said the court through its Chief Justice: ". . .
and so far as the future is concerned, that is, the causing of
the imposition of penalties as fixed to be subject, by
probation legislation or such other means as the legislative
mind may devise, to such judicial discretion as may be
adequate to enable courts to meet by the exercise of an
enlarged but wise discretion the infinite variations which may
be presented to them for judgment, recourse must be had
Congress whose legislative power on the subject is in the
very nature of things adequately complete." (Quoted in Riggs

vs. United States [1926], 14 F. [2d], 5, 6.) This decision led

the National Probation Association and others to agitate for
the enactment by Congress of a federal probation law. Such
action was finally taken on March 4, 1925 (chap. 521, 43
Stat. L. 159, U.S.C. title 18, sec. 724). This was followed by
an appropriation to defray the salaries and expenses of a
certain number of probation officers chosen by civil service.
(Johnson, Probation for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup.
Ct. Rep., 146; 72 Law. ed., 309), the Supreme Court of the
United States, through Chief Justice Taft, held that when a
person sentenced to imprisonment by a district court has
begun to serve his sentence, that court has no power under
the Probation Act of March 4, 1925 to grant him probation
even though the term at which sentence was imposed had
not yet expired. In this case of Murray, the constitutionality of
the probation Act was not considered but was assumed. The
court traced the history of the Act and quoted from the report
of the Committee on the Judiciary of the United States House
of Representatives (Report No. 1377, 68th Congress, 2
Session) the following statement:
Prior to the so-called Killitts case, rendered in December,
1916, the district courts exercised a form of probation either,
by suspending sentence or by placing the defendants under
state probation officers or volunteers. In this case, however
(Ex parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A.,
1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the
Supreme Court denied the right of the district courts to
suspend sentenced. In the same opinion the court pointed
out the necessity for action by Congress if the courts were to
exercise probation powers in the future . . .
Since this decision was rendered, two attempts have been
made to enact probation legislation. In 1917, a bill was
favorably reported by the Judiciary Committee and passed
the House. In 1920, the judiciary Committee again favorably
reported a probation bill to the House, but it was never
reached for definite action.
If this bill is enacted into law, it will bring the policy of the
Federal government with reference to its treatment of those
convicted of violations of its criminal laws in harmony with
that of the states of the Union. At the present time every
state has a probation law, and in all but twelve states the law

applies both to adult and juvenile offenders. (see, also,

Johnson, Probation for Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been
sustained by inferior federal courts. In Riggs vs. United
States supra, the Circuit Court of Appeals of the Fourth Circuit
said:
Since the passage of the Probation Act of March 4, 1925, the
questions under consideration have been reviewed by the
Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590),
and the constitutionality of the act fully sustained, and the
same held in no manner to encroach upon the pardoning
power of the President. This case will be found to contain an
able and comprehensive review of the law applicable here. It
arose under the act we have to consider, and to it and the
authorities cited therein special reference is made (Nix vs.
James, 7 F. [2d], 590, 594), as is also to a decision of the
Circuit Court of Appeals of the Seventh Circuit (Kriebel vs.
U.S., 10 F. [2d], 762), likewise construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United
States; in plain and unequivocal language, pointed to
Congress as possessing the requisite power to enact
probation laws, that a federal probation law as actually
enacted in 1925, and that the constitutionality of the Act has
been assumed by the Supreme Court of the United States in
1928 and consistently sustained by the inferior federal courts
in a number of earlier cases.
We are fully convinced that the Philippine Legislature, like the
Congress of the United States, may legally enact a probation
law under its broad power to fix the punishment of any and
all penal offenses. This conclusion is supported by other
authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A.
1916A, 1285; 151 Pac., 698, the court said: "It is clearly
within the province of the Legislature to denominate and
define all classes of crime, and to prescribe for each a
minimum and maximum punishment." And in State vs.
Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E.,
6; Ann. Cas. 1912B, 1189), the court said: "The legislative
power to set punishment for crime is very broad, and in the
exercise of this power the general assembly may confer on
trial judges, if it sees fit, the largest discretion as to the
sentence to be imposed, as to the beginning and end of the
punishment and whether it should be certain or

indeterminate or conditional." (Quoted in State vs. Teal

[1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine
Legislature has defined all crimes and fixed the penalties for
their violation. Invariably, the legislature has demonstrated
the desire to vest in the courts particularly the trial courts
large discretion in imposing the penalties which the law
prescribes in particular cases. It is believed that justice can
best be served by vesting this power in the courts, they
being in a position to best determine the penalties which an
individual convict, peculiarly circumstanced, should suffer.
Thus, while courts are not allowed to refrain from imposing a
sentence merely because, taking into consideration the
degree of malice and the injury caused by the offense, the
penalty provided by law is clearly excessive, the courts being
allowed in such case to submit to the Chief Executive,
through the Department of Justice, such statement as it may
deem proper (see art. 5, Revised Penal Code), in cases where
both mitigating and aggravating circumstances are attendant
in the commission of a crime and the law provides for a
penalty composed of two indivisible penalties, the courts
may allow such circumstances to offset one another in
consideration of their number and importance, and to apply
the penalty according to the result of such compensation.
(Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and
Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph
7, of the Revised Penal Code empowers the courts to
determine, within the limits of each periods, in case the
penalty prescribed by law contains three periods, the extent
of the evil produced by the crime. In the imposition of fines,
the courts are allowed to fix any amount within the limits
established by law, considering not only the mitigating and
aggravating circumstances, but more particularly the wealth
or means of the culprit. (Art. 66, Revised Penal Code.) Article
68, paragraph 1, of the same Code provides that "a
discretionary penalty shall be imposed" upon a person under
fifteen but over nine years of age, who has not acted without
discernment, but always lower by two degrees at least than
that prescribed by law for the crime which he has committed.
Article 69 of the same Code provides that in case of
"incomplete self-defense", i.e., when the crime committed is
not wholly excusable by reason of the lack of some of the
conditions required to justify the same or to exempt from

criminal liability in the several cases mentioned in article 11

and 12 of the Code, "the courts shall impose the penalty in
the period which may be deemed proper, in view of the
number and nature of the conditions of exemption present or
lacking." And, in case the commission of what are known as
"impossible" crimes, "the court, having in mind the social
danger and the degree of criminality shown by the offender,"
shall impose upon him either arresto mayor or a fine ranging
from 200 to 500 pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of
preventive imprisonment is deducted form the entire term of
imprisonment, except in certain cases expressly mentioned
(art. 29); the death penalty is not imposed when the guilty
person is more than seventy years of age, or where upon
appeal or revision of the case by the Supreme Court, all the
members thereof are not unanimous in their voting as to the
propriety of the imposition of the death penalty (art. 47, see
also, sec. 133, Revised Administrative Code, as amended by
Commonwealth Act No. 3); the death sentence is not to be
inflicted upon a woman within the three years next following
the date of the sentence or while she is pregnant, or upon
any person over seventy years of age (art. 83); and when a
convict shall become insane or an imbecile after final
sentence has been pronounced, or while he is serving his
sentenced, the execution of said sentence shall be
suspended with regard to the personal penalty during the
period of such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in
the undue harshness of the penal laws is more clearly
demonstrated in various other enactments, including the
probation Act. There is the Indeterminate Sentence Law
enacted in 1933 as Act No. 4103 and subsequently amended
by Act No. 4225, establishing a system of parole (secs. 5 to
100 and granting the courts large discretion in imposing the
penalties of the law. Section 1 of the law as amended
provides; "hereafter, in imposing a prison sentence for an
offenses punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and to a
minimum which shall be within the range of the penalty next

lower to that prescribed by the Code for the offense; and if

the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed
by said law and the minimum shall not be less than the
minimum term prescribed by the same." Certain classes of
convicts are, by section 2 of the law, excluded from the
operation thereof. The Legislature has also enacted the
Juvenile Delinquency Law (Act No. 3203) which was
subsequently amended by Act No. 3559. Section 7 of the
original Act and section 1 of the amendatory Act have
become article 80 of the Revised Penal Code, amended by
Act No. 4117 of the Philippine Legislature and recently
reamended by Commonwealth Act No. 99 of the National
Assembly. In this Act is again manifested the intention of the
legislature to "humanize" the penal laws. It allows, in effect,
the modification in particular cases of the penalties
prescribed by law by permitting the suspension of the
execution of the judgment in the discretion of the trial court,
after due hearing and after investigation of the particular
circumstances of the offenses, the criminal record, if any, of
the convict, and his social history. The Legislature has in
reality decreed that in certain cases no punishment at all
shall be suffered by the convict as long as the conditions of
probation are faithfully observed. It this be so, then, it cannot
be said that the Probation Act comes in conflict with the
power of the Chief Executive to grant pardons and reprieves,
because, to use the language of the Supreme Court of New
Mexico, "the element of punishment or the penalty for the
commission of a wrong, while to be declared by the courts as
a judicial function under and within the limits of law as
announced by legislative acts, concerns solely the procedure
and conduct of criminal causes, with which the executive can
have nothing to do." (Ex parte Bates, supra.) In Williams vs.
State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld
the constitutionality of the Georgia probation statute against
the contention that it attempted to delegate to the courts the
pardoning power lodged by the constitution in the governor
alone is vested with the power to pardon after final sentence
has been imposed by the courts, the power of the courts to
imposed any penalty which may be from time to time

prescribed by law and in such manner as may be defined

cannot be questioned."
We realize, of course, the conflict which the American cases
disclose. Some cases hold it unlawful for the legislature to
vest in the courts the power to suspend the operation of a
sentenced, by probation or otherwise, as to do so would
encroach upon the pardoning power of the executive. (In re
Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep.,
846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel.
Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac.,
927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla.
Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628;
97 Pac., 650; People vs. Barrett [1903], 202 Ill, 287; 67 N.E.,
23; 63 L.R.A., 82; 95 Am. St. Rep., 230; Snodgrass vs. State
[1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150
S. W., 162;Ex parte Shelor [1910], 33 Nev., 361;111 Pac.,
291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69
Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs.
Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs.
Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton [1903],
109 Tenn., 544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C.
C. A., 9th], 7 F. [2d], 590; Archer vs. Snook [1926; D. C.], 10 F.
[2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14])
[2d], 5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W.,
871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166;
122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265
Pac., 392; Ex parte De Voe [1931], 114 Cal. App., 730; 300
Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac.,
425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171;
Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371;
Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843;
People vs. Heise [1913], 257 Ill., 443; 100 N. E., 1000; Parker
vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859;
St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882;
People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497;
State vs. Fjolander [1914], 125 Minn., 529; State ex rel.
Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac.,
525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47
L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909], 75
N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq.,
430; 82 Atl. 424; Ex parteBates [1915], 20 N. M., 542; L. R.

A., 1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs.
Court of Session [1894], 141 N. Y., 288; 23 L. R. A., 856; 36 N.
E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs.
Flynn [1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs.
Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn
[1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re
Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W.,
568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P.,
781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State
vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S.
E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34
Tenn., 232; Woods vs. State [1814], 130 Tenn., 100; 169 S.
W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W.,
558; Baker vs. State [1913],70 Tex., Crim. Rep., 618; 158 S.
W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165
S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162
S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 394;
162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep.,
211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A.,
24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460;
State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42;
State ex rel. Tingstand vs. Starwich [1922], 119 Wash., 561;
206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this
long catena of authorities holding that the courts may be
legally authorized by the legislature to suspend sentence by
the establishment of a system of probation however
characterized. State ex rel. Tingstand vs. Starwich ([1922],
119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved
particular mention. In that case, a statute enacted in 1921
which provided for the suspension of the execution of a
sentence until otherwise ordered by the court, and required
that the convicted person be placed under the charge of a
parole or peace officer during the term of such suspension,
on such terms as the court may determine, was held
constitutional and as not giving the court a power in violation
of the constitutional provision vesting the pardoning power in
the chief executive of the state. (Vide, also, Re Giannini
[1912], 18 Cal App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the
same. They are actually district and different from each
other, both in origin and in nature. In People ex rel. Forsyth
vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E.,

386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court
of Appeals of New York said:
. . . The power to suspend sentence and the power to grant
reprieves and pardons, as understood when the constitution
was adopted, are totally distinct and different in their nature.
The former was always a part of the judicial power; the latter
was always a part of the executive power. The suspension of
the sentence simply postpones the judgment of the court
temporarily or indefinitely, but the conviction and liability
following it, and the civil disabilities, remain and become
operative when judgment is rendered. A pardon reaches both
the punishment prescribed for the offense and the guilt of
the offender. It releases the punishment, and blots out of
existence the guilt, so that in the eye of the law, the offender
is as innocent as if he had never committed the offense. It
removes the penalties and disabilities, and restores him to all
his civil rights. It makes him, as it were, a new man, and
gives him a new credit and capacity. (Ex parteGarland, 71 U.
S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13
Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24
Law. ed., 442.)
The framers of the federal and the state constitutions were
perfectly familiar with the principles governing the power to
grant pardons, and it was conferred by these instruments
upon the executive with full knowledge of the law upon the
subject, and the words of the constitution were used to
express the authority formerly exercised by the English
crown, or by its representatives in the colonies. (Ex
parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this
power was understood, it did not comprehend any part of the
judicial functions to suspend sentence, and it was never
intended that the authority to grant reprieves and pardons
should abrogate, or in any degree restrict, the exercise of
that power in regard to its own judgments, that criminal
courts has so long maintained. The two powers, so distinct
and different in their nature and character, were still left
separate and distinct, the one to be exercised by the
executive, and the other by the judicial department. We
therefore conclude that a statute which, in terms, authorizes
courts of criminal jurisdiction to suspend sentence in certain
cases after conviction, a power inherent in such courts at
common law, which was understood when the constitution

was adopted to be an ordinary judicial function, and which,

ever since its adoption, has been exercised of legislative
power under the constitution. It does not encroach, in any
just sense, upon the powers of the executive, as they have
been understood and practiced from the earliest times.
(Quoted with approval in Directors of Prisons vs. Judge of First
Instance of Cavite [1915], 29 Phil., 265, Carson, J.,
concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as in
pardon, a free man. He is not finally and completely
exonerated. He is not exempt from the entire punishment
which the law inflicts. Under the Probation Act, the
probationer's case is not terminated by the mere fact that he
is placed on probation. Section 4 of the Act provides that the
probation may be definitely terminated and the probationer
finally discharged from supervision only after the period of
probation shall have been terminated and the probation
officer shall have submitted a report, and the court shall have
found that the probationer has complied with the conditions
of probation. The probationer, then, during the period of
probation, remains in legal custody subject to the control
of the probation officer and of the court; and, he may be
rearrested upon the non-fulfillment of the conditions of
probation and, when rearrested, may be committed to prison
to serve the sentence originally imposed upon him. (Secs. 2,
3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not
complete liberty, and may be far from it. It is really a new
mode of punishment, to be applied by the judge in a proper
case, in substitution of the imprisonment and find prescribed
by the criminal laws. For this reason its application is as
purely a judicial act as any other sentence carrying out the
law deemed applicable to the offense. The executive act of
pardon, on the contrary, is against the criminal law, which
binds and directs the judges, or rather is outside of and
above it. There is thus no conflict with the pardoning power,
and no possible unconstitutionality of the Probation Act for
this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and
from commutation of the sentence. Snodgrass vs. State
([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150
S. W., 162), is relied upon most strongly by the petitioners as

authority in support of their contention that the power to

grant pardons and reprieves, having been vested exclusively
upon the Chief Executive by the Jones Law, may not be
conferred by the legislature upon the courts by means of
probation law authorizing the indefinite judicial suspension of
sentence. We have examined that case and found that
although the Court of Criminal Appeals of Texas held that the
probation statute of the state in terms conferred on the
district courts the power to grant pardons to persons
convicted of crime, it also distinguished between suspensions
sentence on the one hand, and reprieve and commutation of
sentence on the other. Said the court, through Harper, J.:
That the power to suspend the sentence does not conflict
with the power of the Governor to grant reprieves is settled
by the decisions of the various courts; it being held that the
distinction between a "reprieve" and a suspension of
sentence is that a reprieve postpones the execution of the
sentence to a day certain, whereas a suspension is for an
indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re
Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7
Words & Phrases, pp. 6115, 6116. This law cannot be hold in
conflict with the power confiding in the Governor to grant
commutations of punishment, for a commutations is not but
to change the punishment assessed to a less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont.,
541; 237 Pac., 525), the Supreme Court of Montana had
under consideration the validity of the adult probation law of
the state enacted in 1913, now found in sections 1207812086, Revised Codes of 1921. The court held the law valid
as not impinging upon the pardoning power of the executive.
In a unanimous decision penned by Justice Holloway, the
court said:
. . . . the term "pardon", "commutation", and "respite" each
had a well understood meaning at the time our Constitution
was adopted, and no one of them was intended to
comprehend the suspension of the execution of the judgment
as that phrase is employed in sections 12078-12086. A
"pardon" is an act of grace, proceeding from the power
intrusted with the execution of the laws which exempts the
individual on whom it is bestowed from the punishment the
law inflicts for a crime he has committed (United States vs.
Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a remission of guilt

(State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of

the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex
parte Powell, 73 Ala., 517; 49 Am. Rep., 71). "Commutation"
is a remission of a part of the punishment; a substitution of a
less penalty for the one originally imposed (Lee vs. Murphy,
22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs. Chamberlain,
107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the
withholding of the sentence for an interval of time (4
Blackstone's Commentaries, 394), a postponement of
execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a
temporary suspension of execution (Butler vs. State, 97 Ind.,
373).
Few adjudicated cases are to be found in which the validity of
a statute similar to our section 12078 has been determined;
but the same objections have been urged against parole
statutes which vest the power to parole in persons other than
those to whom the power of pardon is granted, and these
statutes have been upheld quite uniformly, as a reference to
the numerous cases cited in the notes to Woods vs. State
(130 Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F,
531), will disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the
pardoning power of the Executive. The pardoning power, in
respect to those serving their probationary sentences,
remains as full and complete as if the Probation Law had
never been enacted. The President may yet pardon the
probationer and thus place it beyond the power of the court
to order his rearrest and imprisonment. (Riggs vs. United
States [1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the
pardoning power of the executive and is not for that reason
void, does section 11 thereof constitute, as contended, an
undue delegation of legislative power?
Under the constitutional system, the powers of government
are distributed among three coordinate and substantially
independent organs: the legislative, the executive and the
judicial. Each of these departments of the government
derives its authority from the Constitution which, in turn, is
the highest expression of popular will. Each has exclusive
cognizance of the matters within its jurisdiction, and is
supreme within its own sphere.

The power to make laws the legislative power is vested

in a bicameral Legislature by the Jones Law (sec. 12) and in a
unicamiral National Assembly by the Constitution (Act. VI,
sec. 1, Constitution of the Philippines). The Philippine
Legislature or the National Assembly may not escape its
duties and responsibilities by delegating that power to any
other body or authority. Any attempt to abdicate the power is
unconstitutional and void, on the principle that potestas
delegata non delegare potest. This principle is said to have
originated with the glossators, was introduced into English
law through a misreading of Bracton, there developed as a
principle of agency, was established by Lord Coke in the
English public law in decisions forbidding the delegation of
judicial power, and found its way into America as an
enlightened principle of free government. It has since
become an accepted corollary of the principle of separation
of powers. (5 Encyc. of the Social Sciences, p. 66.) The
classic statement of the rule is that of Locke, namely: "The
legislative neither must nor can transfer the power of making
laws to anybody else, or place it anywhere but where the
people have." (Locke on Civil Government, sec. 142.) Judge
Cooley enunciates the doctrine in the following oft-quoted
language: "One of the settled maxims in constitutional law is,
that the power conferred upon the legislature to make laws
cannot be delegated by that department to any other body or
authority. Where the sovereign power of the state has located
the authority, there it must remain; and by the constitutional
agency alone the laws must be made until the Constitution
itself is charged. The power to whose judgment, wisdom, and
patriotism this high prerogative has been intrusted cannot
relieve itself of the responsibilities by choosing other
agencies upon which the power shall be devolved, nor can it
substitute the judgment, wisdom, and patriotism of any other
body for those to which alone the people have seen fit to
confide this sovereign trust." (Cooley on Constitutional
Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U.
S. vs. Barrias [1908], 11 Phil., 327.) This court posits the
doctrine "on the ethical principle that such a delegated
power constitutes not only a right but a duty to be performed
by the delegate by the instrumentality of his own judgment
acting immediately upon the matter of legislation and not
through the intervening mind of another. (U. S. vs.

Barrias, supra, at p. 330.)

The rule, however, which forbids the delegation of legislative
power is not absolute and inflexible. It admits of exceptions.
An exceptions sanctioned by immemorial practice permits
the central legislative body to delegate legislative powers to
local authorities. (Rubi vs. Provincial Board of Mindoro [1919],
39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102;
Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law. ed.,
637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H.,
279.) "It is a cardinal principle of our system of government,
that local affairs shall be managed by local authorities, and
general affairs by the central authorities; and hence while the
rule is also fundamental that the power to make laws cannot
be delegated, the creation of the municipalities exercising
local self government has never been held to trench upon
that rule. Such legislation is not regarded as a transfer of
general legislative power, but rather as the grant of the
authority to prescribed local regulations, according to
immemorial practice, subject of course to the interposition of
the superior in cases of necessity." (Stoutenburgh vs.
Hennick, supra.) On quite the same principle, Congress is
powered to delegate legislative power to such agencies in
the territories of the United States as it may select. A
territory stands in the same relation to Congress as a
municipality or city to the state government. (United States
vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51
L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States
[1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49 Law. ed.,
128; 1 Ann. Cas., 697.) Courts have also sustained the
delegation of legislative power to the people at large. Some
authorities maintain that this may not be done (12 C. J., pp.
841, 842; 6 R. C. L., p. 164, citing People vs. Kennedy [1913],
207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616).
However, the question of whether or not a state has ceased
to be republican in form because of its adoption of the
initiative and referendum has been held not to be a judicial
but a political question (Pacific States Tel. & Tel. Co. vs.
Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet.
Rep., 224), and as the constitutionality of such laws has been
looked upon with favor by certain progressive courts, the
sting of the decisions of the more conservative courts has
been pretty well drawn. (Opinions of the Justices [1894], 160

Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs.

Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402;
37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs.
Oregon, supra.) Doubtless, also, legislative power may be
delegated by the Constitution itself. Section 14, paragraph 2,
of article VI of the Constitution of the Philippines provides
that "The National Assembly may by law authorize the
President, subject to such limitations and restrictions as it
may impose, to fix within specified limits, tariff rates, import
or export quotas, and tonnage and wharfage dues." And
section 16 of the same article of the Constitution provides
that "In times of war or other national emergency, the
National Assembly may by law authorize the President, for a
limited period and subject to such restrictions as it may
prescribed, to promulgate rules and regulations to carry out a
declared national policy." It is beyond the scope of this
decision to determine whether or not, in the absence of the
foregoing constitutional provisions, the President could be
authorized to exercise the powers thereby vested in him.
Upon the other hand, whatever doubt may have existed has
been removed by the Constitution itself.
The case before us does not fall under any of the exceptions
hereinabove mentioned.
The challenged section of Act No. 4221 in section 11 which
reads as follows:
This Act shall apply only in those provinces in which the
respective provincial boards have provided for the salary of a
probation officer at rates not lower than those now provided
for provincial fiscals. Said probation officer shall be appointed
by the Secretary of Justice and shall be subject to the
direction of the Probation Office. (Emphasis ours.)
In testing whether a statute constitute an undue delegation
of legislative power or not, it is usual to inquire whether the
statute was complete in all its terms and provisions when it
left the hands of the legislature so that nothing was left to
the judgment of any other appointee or delegate of the
legislature. (6 R. C. L., p. 165.) In the United States vs. Ang
Tang Ho ([1922], 43 Phil., 1), this court adhered to the
foregoing rule when it held an act of the legislature void in so
far as it undertook to authorize the Governor-General, in his
discretion, to issue a proclamation fixing the price of rice and
to make the sale of it in violation of the proclamation a crime.

(See and cf. Compaia General de Tabacos vs. Board of Public

Utility Commissioners [1916], 34 Phil., 136.) The general rule,
however, is limited by another rule that to a certain extent
matters of detail may be left to be filled in by rules and
regulations to be adopted or promulgated by executive
officers and administrative boards. (6 R. C. L., pp. 177-179.)
For the purpose of Probation Act, the provincial boards may
be regarded as administrative bodies endowed with power to
determine when the Act should take effect in their respective
provinces. They are the agents or delegates of the legislature
in this respect. The rules governing delegation of legislative
power to administrative and executive officers are applicable
or are at least indicative of the rule which should be here
adopted. An examination of a variety of cases on delegation
of power to administrative bodies will show that the ratio
decidendiis at variance but, it can be broadly asserted that
the rationale revolves around the presence or absence of a
standard or rule of action or the sufficiency thereof in
the statute, to aid the delegate in exercising the granted
discretion. In some cases, it is held that the standard is
sufficient; in others that is insufficient; and in still others that
it is entirely lacking. As a rule, an act of the legislature is
incomplete and hence invalid if it does not lay down any rule
or definite standard by which the administrative officer or
board may be guided in the exercise of the discretionary
powers delegated to it. (See Schecter vs. United States
[1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837;
97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co. [1936],
364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases
cited. See also R. C. L., title "Constitutional Law", sec 174.) In
the case at bar, what rules are to guide the provincial boards
in the exercise of their discretionary power to determine
whether or not the Probation Act shall apply in their
respective provinces? What standards are fixed by the Act?
We do not find any and none has been pointed to us by the
respondents. The probation Act does not, by the force of any
of its provisions, fix and impose upon the provincial boards
any standard or guide in the exercise of their discretionary
power. What is granted, if we may use the language of Justice
Cardozo in the recent case of Schecter, supra, is a "roving
commission" which enables the provincial boards to exercise
arbitrary discretion. By section 11 if the Act, the legislature

does not seemingly on its own authority extend the benefits

of the Probation Act to the provinces but in reality leaves the
entire matter for the various provincial boards to determine.
In other words, the provincial boards of the various provinces
are to determine for themselves, whether the Probation Law
shall apply to their provinces or not at all. The applicability
and application of the Probation Act are entirely placed in the
hands of the provincial boards. If the provincial board does
not wish to have the Act applied in its province, all that it has
to do is to decline to appropriate the needed amount for the
salary of a probation officer. The plain language of the Act is
not susceptible of any other interpretation. This, to our
minds, is a virtual surrender of legislative power to the
provincial boards.
"The true distinction", says Judge Ranney, "is between the
delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring an
authority or discretion as to its execution, to be exercised
under and in pursuance of the law. The first cannot be done;
to the latter no valid objection can be made." (Cincinnati, W.
& Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77,
88. See also, Sutherland on Statutory Construction, sec 68.)
To the same effect are the decision of this court
in Municipality of Cardona vs. Municipality of
Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board
of Mindoro ([1919],39 Phil., 660) andCruz vs.
Youngberg ([1931], 56 Phil., 234). In the first of these cases,
this court sustained the validity of the law conferring upon
the Governor-General authority to adjust provincial and
municipal boundaries. In the second case, this court held it
lawful for the legislature to direct non-Christian inhabitants to
take up their habitation on unoccupied lands to be selected
by the provincial governor and approved by the provincial
board. In the third case, it was held proper for the legislature
to vest in the Governor-General authority to suspend or not,
at his discretion, the prohibition of the importation of the
foreign cattle, such prohibition to be raised "if the conditions
of the country make this advisable or if deceased among
foreign cattle has ceased to be a menace to the agriculture
and livestock of the lands."
It should be observed that in the case at bar we are not
concerned with the simple transference of details of

execution or the promulgation by executive or administrative

officials of rules and regulations to carry into effect the
provisions of a law. If we were, recurrence to our own
decisions would be sufficient. (U. S. vs. Barrias [1908], 11
Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119; Alegre vs.
Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co.
vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31
Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39
Phil., 660.)
It is connected, however, that a legislative act may be made
to the effect as law after it leaves the hands of the
legislature. It is true that laws may be made effective on
certain contingencies, as by proclamation of the executive or
the adoption by the people of a particular community (6 R. C.
L., 116, 170-172; Cooley, Constitutional Limitations, 8th ed.,
Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1;
6 Law. ed., 253), the Supreme Court of the United State ruled
that the legislature may delegate a power not legislative
which it may itself rightfully exercise.(Vide, also, Dowling vs.
Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R.
A., 112.) The power to ascertain facts is such a power which
may be delegated. There is nothing essentially legislative in
ascertaining the existence of facts or conditions as the basis
of the taking into effect of a law. That is a mental process
common to all branches of the government. (Dowling vs.
Lancashire Ins. Co., supra; In re Village of North Milwaukee
[1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs.
Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark
[1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.)
Notwithstanding the apparent tendency, however, to relax
the rule prohibiting delegation of legislative authority on
account of the complexity arising from social and economic
forces at work in this modern industrial age (Pfiffner, Public
Administration [1936] ch. XX; Laski, "The Mother of
Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp.
569-579; Beard, "Squirt-Gun Politics", in Harper's Monthly
Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox
pronouncement of Judge Cooley in his work on Constitutional
Limitations finds restatement in Prof. Willoughby's treatise on
the Constitution of the United States in the following
language speaking of declaration of legislative power to
administrative agencies: "The principle which permits the

legislature to provide that the administrative agent may

determine when the circumstances are such as require the
application of a law is defended upon the ground that at the
time this authority is granted, the rule of public policy, which
is the essence of the legislative act, is determined by the
legislature. In other words, the legislature, as it its duty to do,
determines that, under given circumstances, certain
executive or administrative action is to be taken, and that,
under other circumstances, different of no action at all is to
be taken. What is thus left to the administrative official is not
the legislative determination of what public policy demands,
but simply the ascertainment of what the facts of the case
require to be done according to the terms of the law by which
he is governed." (Willoughby on the Constitution of the
United States, 2nd ed., Vol. II, p. 1637.) In Miller vs. Mayer,
etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27
Law. ed., 971, 974), it was said: "The efficiency of an Act as a
declaration of legislative will must, of course, come from
Congress, but the ascertainment of the contingency upon
which the Act shall take effect may be left to such agencies
as it may designate." (See, also, 12 C.J., p. 864; State vs.
Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal.,
343, 258.) The legislature, then may provide that a
contingencies leaving to some other person or body the
power to determine when the specified contingencies has
arisen. But, in the case at bar, the legislature has not made
the operation of the Prohibition Act contingent upon specified
facts or conditions to be ascertained by the provincial board.
It leaves, as we have already said, the entire operation or
non-operation of the law upon the provincial board. the
discretion vested is arbitrary because it is absolute and
unlimited. A provincial board need not investigate conditions
or find any fact, or await the happening of any specified
contingency. It is bound by no rule, limited by no principle
of expendiency announced by the legislature. It may take
into consideration certain facts or conditions; and, again, it
may not. It may have any purpose or no purpose at all. It
need not give any reason whatsoever for refusing or failing to
appropriate any funds for the salary of a probation officer.
This is a matter which rest entirely at its pleasure. The fact
that at some future time we cannot say when the
provincial boards may appropriate funds for the salaries of

probation officers and thus put the law into operation in the
various provinces will not save the statute. The time of its
taking into effect, we reiterate, would yet be based solely
upon the will of the provincial boards and not upon the
happening of a certain specified contingency, or upon the
ascertainment of certain facts or conditions by a person or
body other than legislature itself.
The various provincial boards are, in practical effect,
endowed with the power of suspending the operation of the
Probation Law in their respective provinces. In some
jurisdiction, constitutions provided that laws may be
suspended only by the legislature or by its authority. Thus,
section 28, article I of the Constitution of Texas provides that
"No power of suspending laws in this state shall be exercised
except by the legislature"; and section 26, article I of the
Constitution of Indiana provides "That the operation of the
laws shall never be suspended, except by authority of the
General Assembly." Yet, even provisions of this sort do not
confer absolute power of suspension upon the legislature.
While it may be undoubted that the legislature may suspend
a law, or the execution or operation of a law, a law may not
be suspended as to certain individuals only, leaving the law
to be enjoyed by others. The suspension must be general,
and cannot be made for individual cases or for particular
localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am.
Dec., 174, 177, 178), it was said:
By the twentieth article of the declaration of rights in the
constitution of this commonwealth, it is declared that the
power of suspending the laws, or the execution of the laws,
ought never to be exercised but by the legislature, or by
authority derived from it, to be exercised in such particular
cases only as the legislature shall expressly provide for. Many
of the articles in that declaration of rights were adopted from
the Magna Charta of England, and from the bill of rights
passed in the reign of William and Mary. The bill of rights
contains an enumeration of the oppressive acts of James II,
tending to subvert and extirpate the protestant religion, and
the laws and liberties of the kingdom; and the first of them is
the assuming and exercising a power of dispensing with and
suspending the laws, and the execution of the laws without
consent of parliament. The first article in the claim or
declaration of rights contained in the statute is, that the

exercise of such power, by legal authority without consent of

parliament, is illegal. In the tenth section of the same statute
it is further declared and enacted, that "No dispensation
by non obstante of or to any statute, or part thereof, should
be allowed; but the same should be held void and of no
effect, except a dispensation be allowed of in such statute."
There is an implied reservation of authority in the parliament
to exercise the power here mentioned; because, according to
the theory of the English Constitution, "that absolute despotic
power, which must in all governments reside somewhere," is
intrusted to the parliament: 1 Bl. Com., 160.
The principles of our government are widely different in this
particular. Here the sovereign and absolute power resides in
the people; and the legislature can only exercise what is
delegated to them according to the constitution. It is obvious
that the exercise of the power in question would be equally
oppressive to the subject, and subversive of his right to
protection, "according to standing laws," whether exercised
by one man or by a number of men. It cannot be supposed
that the people when adopting this general principle from the
English bill of rights and inserting it in our constitution,
intended to bestow by implication on the general court one of
the most odious and oppressive prerogatives of the ancient
kings of England. It is manifestly contrary to the first
principles of civil liberty and natural justice, and to the spirit
of our constitution and laws, that any one citizen should
enjoy privileges and advantages which are denied to all
others under like circumstances; or that ant one should be
subject to losses, damages, suits, or actions from which all
others under like circumstances are exempted.
To illustrate the principle: A section of a statute relative to
dogs made the owner of any dog liable to the owner of
domestic animals wounded by it for the damages without
proving a knowledge of it vicious disposition. By a provision
of the act, power was given to the board of supervisors to
determine whether or not during the current year their
county should be governed by the provisions of the act of
which that section constituted a part. It was held that the
legislature could not confer that power. The court observed
that it could no more confer such a power than to authorize
the board of supervisors of a county to abolish in such county
the days of grace on commercial paper, or to suspend the

statute of limitations. (Slinger vs. Henneman [1875], 38 Wis.,

504.) A similar statute in Missouri was held void for the same
reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec.,
275.) In that case a general statute formulating a road
system contained a provision that "if the county court of any
county should be of opinion that the provisions of the act
should not be enforced, they might, in their discretion,
suspend the operation of the same for any specified length of
time, and thereupon the act should become inoperative in
such county for the period specified in such order; and
thereupon order the roads to be opened and kept in good
repair, under the laws theretofore in force." Said the court:
". . . this act, by its own provisions, repeals the inconsistent
provisions of a former act, and yet it is left to the county
court to say which act shall be enforce in their county. The
act does not submit the question to the county court as an
original question, to be decided by that tribunal, whether the
act shall commence its operation within the county; but it
became by its own terms a law in every county not excepted
by name in the act. It did not, then, require the county court
to do any act in order to give it effect. But being the law in
the county, and having by its provisions superseded and
abrogated the inconsistent provisions of previous laws, the
county court is . . . empowered, to suspend this act and
revive the repealed provisions of the former act. When the
question is before the county court for that tribunal to
determine which law shall be in force, it is urge before us that
the power then to be exercised by the court is strictly
legislative power, which under our constitution, cannot be
delegated to that tribunal or to any other body of men in the
state. In the present case, the question is not presented in
the abstract; for the county court of Saline county, after the
act had been for several months in force in that county, did
by order suspend its operation; and during that suspension
the offense was committed which is the subject of the
present indictment . . . ." (See Mitchell vs. State [1901], 134
Ala., 392; 32 S., 687.)
True, the legislature may enact laws for a particular locality
different from those applicable to other localities and, while
recognizing the force of the principle hereinabove expressed,
courts in may jurisdiction have sustained the constitutionality
of the submission of option laws to the vote of the people. (6

R.C.L., p. 171.) But option laws thus sustained treat of

subjects purely local in character which should receive
different treatment in different localities placed under
different circumstances. "They relate to subjects which, like
the retailing of intoxicating drinks, or the running at large of
cattle in the highways, may be differently regarded in
different localities, and they are sustained on what seems to
us the impregnable ground, that the subject, though not
embraced within the ordinary powers of municipalities to
make by-laws and ordinances, is nevertheless within the
class of public regulations, in respect to which it is proper
that the local judgment should control." (Cooley on
Constitutional Limitations, 5th ed., p. 148.) So that, while we
do not deny the right of local self-government and the
propriety of leaving matters of purely local concern in the
hands of local authorities or for the people of small
communities to pass upon, we believe that in matters of
general of general legislation like that which treats of
criminals in general, and as regards the general subject of
probation, discretion may not be vested in a manner so
unqualified and absolute as provided in Act No. 4221. True,
the statute does not expressly state that the provincial
boards may suspend the operation of the Probation Act in
particular provinces but, considering that, in being vested
with the authority to appropriate or not the necessary funds
for the salaries of probation officers, they thereby are given
absolute discretion to determine whether or not the law
should take effect or operate in their respective provinces,
the provincial boards are in reality empowered by the
legislature to suspend the operation of the Probation Act in
particular provinces, the Act to be held in abeyance until the
provincial boards should decide otherwise by appropriating
the necessary funds. The validity of a law is not tested by
what has been done but by what may be done under its
provisions. (Walter E. Olsen & Co. vs. Aldanese and Trinidad
[1922], 43 Phil., 259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted
to the legislature not only in the expression of what may be
termed legislative policy but in the elaboration and execution
thereof. "Without this power, legislation would become
oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman,
1.) It has been said that popular government lives because of

the inexhaustible reservoir of power behind it. It is

unquestionable that the mass of powers of government is
vested in the representatives of the people and that these
representatives are no further restrained under our system
than by the express language of the instrument imposing the
restraint, or by particular provisions which by clear
intendment, have that effect. (Angara vs. Electoral
Commission [1936], 35 Off. Ga., 23; Schneckenburger vs.
Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in
mind that a constitution is both a grant and a limitation of
power and one of these time-honored limitations is that,
subject to certain exceptions, legislative power shall not be
delegated.
We conclude that section 11 of Act No. 4221 constitutes an
improper and unlawful delegation of legislative authority to
the provincial boards and is, for this reason, unconstitutional
and void.
3. It is also contended that the Probation Act violates the
provisions of our Bill of Rights which prohibits the denial to
any person of the equal protection of the laws (Act. III, sec. 1
subsec. 1. Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a
restraint on all the tree grand departments of our
government and on the subordinate instrumentalities and
subdivision thereof, and on many constitutional power, like
the police power, taxation and eminent domain. The equal
protection of laws, sententiously observes the Supreme Court
of the United States, "is a pledge of the protection of equal
laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law.
ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina,
249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of
course, what may be regarded as a denial of the equal
protection of the laws in a question not always easily
determined. No rule that will cover every case can be
formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184,
U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class
legislation discriminating against some and favoring others in
prohibited. But classification on a reasonable basis, and nor
made arbitrarily or capriciously, is permitted. (Finely vs.
California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct.
Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150;
41 Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs.

Natividad [1919], 40 Phil., 136.) The classification, however,

to be reasonable must be based on substantial distinctions
which make real differences; it must be germane to the
purposes of the law; it must not be limited to existing
conditions only, and must apply equally to each member of
the class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353;
133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489;
State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150;
Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61,
79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas.,
1912C, 160; Lake Shore & M. S. R. Co. vs. Clough [1917], 242
U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern
Ry. Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep.,
287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs. Corrigan
[1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be
said to flow from the unwarranted delegation of legislative
power, although perhaps this is not necessarily the result in
every case. Adopting the example given by one of the
counsel for the petitioners in the course of his oral argument,
one province may appropriate the necessary fund to defray
the salary of a probation officer, while another province may
refuse or fail to do so. In such a case, the Probation Act would
be in operation in the former province but not in the latter.
This means that a person otherwise coming within the
purview of the law would be liable to enjoy the benefits of
probation in one province while another person similarly
situated in another province would be denied those same
benefits. This is obnoxious discrimination. Contrariwise, it is
also possible for all the provincial boards to appropriate the
necessary funds for the salaries of the probation officers in
their respective provinces, in which case no inequality would
result for the obvious reason that probation would be in
operation in each and every province by the affirmative
action of appropriation by all the provincial boards. On that
hypothesis, every person coming within the purview of the
Probation Act would be entitled to avail of the benefits of the
Act. Neither will there be any resulting inequality if no
province, through its provincial board, should appropriate any
amount for the salary of the probation officer which is the
situation now and, also, if we accept the contention that,
for the purpose of the Probation Act, the City of Manila should

be considered as a province and that the municipal board of

said city has not made any appropriation for the salary of the
probation officer. These different situations suggested show,
indeed, that while inequality may result in the application of
the law and in the conferment of the benefits therein
provided, inequality is not in all cases the necessary result.
But whatever may be the case, it is clear that in section 11 of
the Probation Act creates a situation in which discrimination
and inequality are permitted or allowed. There are, to be
sure, abundant authorities requiring actual denial of the
equal protection of the law before court should assume the
task of setting aside a law vulnerable on that score, but
premises and circumstances considered, we are of the
opinion that section 11 of Act No. 4221 permits of the denial
of the equal protection of the law and is on that account bad.
We see no difference between a law which permits of such
denial. A law may appear to be fair on its face and impartial
in appearance, yet, if it permits of unjust and illegal
discrimination, it is within the constitutional prohibitions. (By
analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23
Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23
Law. ed., 543; Ex parte Virginia [1880], 100 U. S., 339; 25
Law. ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26
Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703;
28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356;
30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S.,
218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs.
Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55
Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U.
S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other
words, statutes may be adjudged unconstitutional because of
their effect in operation (General Oil Co. vs. Clain [1907], 209
U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs.
Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann.
Cas., 1912D, 22). If the law has the effect of denying the
equal protection of the law it is unconstitutional. (6 R. C. L. p.
372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27
Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs.
Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State
vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19
L. R. A., 858.) Under section 11 of the Probation Act, not only
may said Act be in force in one or several provinces and not

be in force in other provinces, but one province may

appropriate for the salary of the probation officer of a given
year and have probation during that year and thereafter
decline to make further appropriation, and have no probation
is subsequent years. While this situation goes rather to the
abuse of discretion which delegation implies, it is here
indicated to show that the Probation Act sanctions a situation
which is intolerable in a government of laws, and to prove
how easy it is, under the Act, to make the guaranty of the
equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F.
Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666;
17 Sup. Ct. Rep., 255.)lawph!1.net
Great reliance is placed by counsel for the respondents on
the case of Ocampo vs. United States ([1914], 234 U. S., 91;
58 Law. ed., 1231). In that case, the Supreme Court of the
United States affirmed the decision of this court (18 Phil., 1)
by declining to uphold the contention that there was a denial
of the equal protection of the laws because, as held in
Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880 (101
U. S., 220; 25 Law. ed., 991), the guaranty of the equality
clause does not require territorial uniformity. It should be
observed, however, that this case concerns the right to
preliminary investigations in criminal cases originally granted
by General Orders No. 58. No question of legislative authority
was involved and the alleged denial of the equal protection of
the laws was the result of the subsequent enactment of Act
No. 612, amending the charter of the City of Manila (Act No.
813) and providing in section 2 thereof that "in cases triable
only in the court of first instance of the City of Manila, the
defendant . . . shall not be entitled as of right to a preliminary
examination in any case where the prosecuting attorney,
after a due investigation of the facts . . . shall have presented
an information against him in proper form . . . ." Upon the
other hand, an analysis of the arguments and the decision
indicates that the investigation by the prosecuting attorney
although not in the form had in the provinces was
considered a reasonable substitute for the City of Manila,
considering the peculiar conditions of the city as found and
taken into account by the legislature itself.
Reliance is also placed on the case of Missouri vs.
Lewis, supra. That case has reference to a situation where
the constitution of Missouri permits appeals to the Supreme

Court of the state from final judgments of any circuit court,

except those in certain counties for which counties the
constitution establishes a separate court of appeals called St.
Louis Court of Appeals. The provision complained of, then, is
found in the constitution itself and it is the constitution that
makes the apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is
unconstitutional and void because it is also repugnant to
equal-protection clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and
void for the reasons already stated, the next inquiry is
whether or not the entire Act should be avoided.
In seeking the legislative intent, the presumption is against
any mutilation of a statute, and the courts will resort to
elimination only where an unconstitutional provision is
interjected into a statute otherwise valid, and is so
independent and separable that its removal will leave the
constitutional features and purposes of the act substantially
unaffected by the process. (Riccio vs. Hoboken, 69 N. J. Law.,
649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams
vs. Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed.,
287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.)
In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court
stated the well-established rule concerning partial invalidity
of statutes in the following language:
. . . where part of the a statute is void, as repugnant to the
Organic Law, while another part is valid, the valid portion, if
separable from the valid, may stand and be enforced. But in
order to do this, the valid portion must be in so far
independent of the invalid portion that it is fair to presume
that the Legislative would have enacted it by itself if they
had supposed that they could not constitutionally enact the
other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N. E.,
916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black
Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough
must remain to make a complete, intelligible, and valid
statute, which carries out the legislative intent. (Pearson vs.
Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions must
be eliminated without causing results affecting the main
purpose of the Act, in a manner contrary to the intention of
the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642;
47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226;

26 L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184
U. S., 540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88
N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich, 124
La., 414; 50 Sou., 439.) The language used in the invalid part
of a statute can have no legal force or efficacy for any
purpose whatever, and what remains must express the
legislative will, independently of the void part, since the court
has no power to legislate. (State vs. Junkin, 85 Neb., 1; 122
N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs.
Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and
Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed., 1108,
1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)
It is contended that even if section 11, which makes the
Probation Act applicable only in those provinces in which the
respective provincial boards provided for the salaries of
probation officers were inoperative on constitutional grounds,
the remainder of the Act would still be valid and may be
enforced. We should be inclined to accept the suggestions
but for the fact that said section is, in our opinion, is
inseparably linked with the other portions of the Act that with
the elimination of the section what would be left is the bare
idealism of the system, devoid of any practical benefit to a
large number of people who may be deserving of the
intended beneficial result of that system. The clear policy of
the law, as may be gleaned from a careful examination of the
whole context, is to make the application of the system
dependent entirely upon the affirmative action of the
different provincial boards through appropriation of the
salaries for probation officers at rates not lower than those
provided for provincial fiscals. Without such action on the
part of the various boards, no probation officers would be
appointed by the Secretary of Justice to act in the provinces.
The Philippines is divided or subdivided into provinces and it
needs no argument to show that if not one of the provinces
and this is the actual situation now appropriate the
necessary fund for the salary of a probation officer, probation
under Act No. 4221 would be illusory. There can be no
probation without a probation officer. Neither can there be a
probation officer without the probation system.
Section 2 of the Acts provides that the probation officer shall
supervise and visit the probationer. Every probation officer is
given, as to the person placed in probation under his care,

the powers of the police officer. It is the duty of the probation

officer to see that the conditions which are imposed by the
court upon the probationer under his care are complied with.
Among those conditions, the following are enumerated in
section 3 of the Act:
That the probationer (a) shall indulge in no injurious or
vicious habits;
(b) Shall avoid places or persons of disreputable or harmful
character;
(c) Shall report to the probation officer as directed by the
court or probation officers;
(d) Shall permit the probation officer to visit him at
reasonable times at his place of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the
part of the probation officer concerning his conduct or
condition; "(f) Shall endeavor to be employed regularly; "(g)
Shall remain or reside within a specified place or locality;
(f) Shall make reparation or restitution to the aggrieved
parties for actual damages or losses caused by his offense;
(g) Shall comply with such orders as the court may from time
to time make; and
(h) Shall refrain from violating any law, statute, ordinance, or
any by-law or regulation, promulgated in accordance with
law.
The court is required to notify the probation officer in writing
of the period and terms of probation. Under section 4, it is
only after the period of probation, the submission of a report
of the probation officer and appropriate finding of the court
that the probationer has complied with the conditions of
probation that probation may be definitely terminated and
the probationer finally discharged from supervision. Under
section 5, if the court finds that there is non-compliance with
said conditions, as reported by the probation officer, it may
issue a warrant for the arrest of the probationer and said
probationer may be committed with or without bail. Upon
arraignment and after an opportunity to be heard, the court
may revoke, continue or modify the probation, and if
revoked, the court shall order the execution of the sentence
originally imposed. Section 6 prescribes the duties of
probation officers: "It shall be the duty of every probation
officer to furnish to all persons placed on probation under his
supervision a statement of the period and conditions of their

probation, and to instruct them concerning the same; to keep

informed concerning their conduct and condition; to aid and
encourage them by friendly advice and admonition, and by
such other measures, not inconsistent with the conditions
imposed by court as may seem most suitable, to bring about
improvement in their conduct and condition; to report in
writing to the court having jurisdiction over said probationers
at least once every two months concerning their conduct and
condition; to keep records of their work; make such report as
are necessary for the information of the Secretary of Justice
and as the latter may require; and to perform such other
duties as are consistent with the functions of the probation
officer and as the court or judge may direct. The probation
officers provided for in this Act may act as parole officers for
any penal or reformatory institution for adults when so
requested by the authorities thereof, and, when designated
by the Secretary of Justice shall act as parole officer of
persons released on parole under Act Number Forty-one
Hundred and Three, without additional compensation."
It is argued, however, that even without section 11 probation
officers maybe appointed in the provinces under section 10
of Act which provides as follows:
There is hereby created in the Department of Justice and
subject to its supervision and control, a Probation Office
under the direction of a Chief Probation Officer to be
appointed by the Governor-General with the advise and
consent of the Senate who shall receive a salary of four eight
hundred pesos per annum. To carry out this Act there is
hereby appropriated out of any funds in the Insular Treasury
not otherwise appropriated, the sum of fifty thousand pesos
to be disbursed by the Secretary of Justice, who is hereby
authorized to appoint probation officers and the
administrative personnel of the probation officer under civil
service regulations from among those who possess the
qualifications, training and experience prescribed by the
Bureau of Civil Service, and shall fix the compensation of
such probation officers and administrative personnel until
such positions shall have been included in the Appropriation
Act.
But the probation officers and the administrative personnel
referred to in the foregoing section are clearly not those
probation officers required to be appointed for the provinces

under section 11. It may be said, reddendo singula singulis,

that the probation officers referred to in section 10 abovequoted are to act as such, not in the various provinces, but in
the central office known as the Probation Office established
in the Department of Justice, under the supervision of the
Chief Probation Officer. When the law provides that "the
probation officer" shall investigate and make reports to the
court (secs. 1 and 4); that "the probation officer" shall
supervise and visit the probationer (sec. 2; sec. 6, par. d);
that the probationer shall report to the "probationer officer"
(sec. 3, par. c.), shall allow "the probationer officer" to visit
him (sec. 3, par. d), shall truthfully answer any reasonable
inquiries on the part of "the probation officer" concerning his
conduct or condition (sec. 3, par. 4); that the court shall
notify "the probation officer" in writing of the period and
terms of probation (sec. 3, last par.), it means the probation
officer who is in charge of a particular probationer in a
particular province. It never could have been intention of the
legislature, for instance, to require the probationer in
Batanes, to report to a probationer officer in the City of
Manila, or to require a probation officer in Manila to visit the
probationer in the said province of Batanes, to place him
under his care, to supervise his conduct, to instruct him
concerning the conditions of his probation or to perform such
other functions as are assigned to him by law.
That under section 10 the Secretary of Justice may appoint as
many probation officers as there are provinces or groups of
provinces is, of course possible. But this would be arguing on
what the law may be or should be and not on what the law is.
Between is and ought there is a far cry. The wisdom and
propriety of legislation is not for us to pass upon. We may
think a law better otherwise than it is. But much as has been
said regarding progressive interpretation and judicial
legislation we decline to amend the law. We are not
permitted to read into the law matters and provisions which
are not there. Not for any purpose not even to save a
statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law
is not to make the Insular Government defray the salaries of
probation officers in the provinces but to make the provinces
defray them should they desire to have the Probation Act
apply thereto. The sum of P50,000, appropriated "to carry out

the purposes of this Act", is to be applied, among other

things, for the salaries of probation officers in the central
office at Manila. These probation officers are to receive such
compensations as the Secretary of Justice may fix "until such
positions shall have been included in the Appropriation Act".
It was the intention of the legislature to empower the
Secretary of Justice to fix the salaries of the probation officers
in the provinces or later on to include said salaries in an
appropriation act. Considering, further, that the sum of
P50,000 appropriated in section 10 is to cover, among other
things, the salaries of the administrative personnel of the
Probation Office, what would be left of the amount can hardly
be said to be sufficient to pay even nominal salaries to
probation officers in the provinces. We take judicial notice of
the fact that there are 48 provinces in the Philippines and we
do not think it is seriously contended that, with the fifty
thousand pesos appropriated for the central office, there can
be in each province, as intended, a probation officer with a
salary not lower than that of a provincial fiscal. If this a
correct, the contention that without section 11 of Act No.
4221 said act is complete is an impracticable thing under the
remainder of the Act, unless it is conceded that in our case
there can be a system of probation in the provinces without
probation officers.
Probation as a development of a modern penology is a
commendable system. Probation laws have been enacted,
here and in other countries, to permit what modern
criminologist call the "individualization of the punishment",
the adjustment of the penalty to the character of the criminal
and the circumstances of his particular case. It provides a
period of grace in order to aid in the rehabilitation of a
penitent offender. It is believed that, in any cases, convicts
may be reformed and their development into hardened
criminals aborted. It, therefore, takes advantage of an
opportunity for reformation and avoids imprisonment so long
as the convicts gives promise of reform. (United States vs.
Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309;
312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d],
664, 665.) The Welfare of society is its chief end and aim. The
benefit to the individual convict is merely incidental. But
while we believe that probation is commendable as a system
and its implantation into the Philippines should be welcomed,

we are forced by our inescapable duty to set the law aside

because of the repugnancy to our fundamental law.
In arriving at this conclusion, we have endeavored to
consider the different aspects presented by able counsel for
both parties, as well in their memorandums as in their oral
argument. We have examined the cases brought to our
attention, and others we have been able to reach in the short
time at our command for the study and deliberation of this
case. In the examination of the cases and in then analysis of
the legal principles involved we have inclined to adopt the
line of action which in our opinion, is supported better
reasoned authorities and is more conducive to the general
welfare. (Smith, Bell & Co. vs. Natividad [1919], 40 Phil.,
136.) Realizing the conflict of authorities, we have declined to
be bound by certain adjudicated cases brought to our
attention, except where the point or principle is settled
directly or by clear implication by the more authoritative
pronouncements of the Supreme Court of the United States.
This line of approach is justified because:
(a) The constitutional relations between the Federal and the
State governments of the United States and the dual
character of the American Government is a situation which
does not obtain in the Philippines;
(b) The situation of s state of the American Union of the
District of Columbia with reference to the Federal
Government of the United States is not the situation of the
province with respect to the Insular Government (Art. I, sec. 8
cl. 17 and 10th Amendment, Constitution of the United
States; Sims vs. Rives, 84 Fed. [2d], 871),
(c) The distinct federal and the state judicial organizations of
the United States do not embrace the integrated judicial
system of the Philippines (Schneckenburger vs. Moran
[1936], 35 Off. Gaz., p. 1317);
(d) "General propositions do not decide concrete cases"
(Justice Holmes in Lochner vs. New York [1904], 198 U. S., 45,
76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new
developments of times and circumstances" (Chief Justice
Waite in Pensacola Tel. Co. vs. Western Union Tel. Co. [1899],
96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX,
No. 2, Dec. 1919, 141, 142), fundamental principles should
be interpreted having in view existing local conditions and
environment.

Act No. 4221 is hereby declared unconstitutional and void

and the writ of prohibition is, accordingly, granted. Without
any pronouncement regarding costs. So ordered.
Avancea, C.J., Imperial, Diaz and Concepcion, JJ., concur.
Villa-real and Abad Santos, JJ., concur in the result.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 114714 April 21, 1995
THE CONFERENCE OF MARITIME MANNING AGENCIES,
INC., ALSTER INTERNATIONAL SHIPPING, INC.,
CREAMSHIP MANAGEMENT INC., EL GRANDE SHIPPING
CORP., EASTGATE (INT'L.) MARITIME AGENCIES, INC.,

FILIPINAS KALAYAAN OVERSEAS SHIPPING CORP.,

INTERWORLD SHIPPING CORP., JZEL COMPANY, INC. ,
LAINE SHIPPING AGENCY CORP., MARINERS SERVICES,
CORP., MARITIME SERVICES & MGT., INC., MID OCEAN
(PHILS.) MARINE AGENCY, OCEAN EAST AGENCY CORP.,
PASIA-PHIL. GROUP, INC., PHIL. MARINE CONSULTANT
INC., SEASTAR MARINE SERVICES, INC., TSM SHIPPING
(PHILS.) INC., TRANS-MED (MANILA)
CORPORATION, petitioners,
vs.
PHILIPPINE OVERSEAS EMPLOYMENT
ADMINISTRATION, HON. NIEVES CONFESSOR AND THE
HON. FELICISIMO JOSON, respondent.
DAVIDE, JR., J.:
Petitioner Conference of Maritime Manning Agencies, Inc., an
incorporated association of licensed Filipino manning
agencies, and its co-petitioners, all licensed manning
agencies which hire and recruit Filipino seamen for and in
behalf of their respective foreign shipowner-principals, urge
us to annul Resolution No. 01, series of 1994, of the
Governing Board" of the Philippine Overseas Employment
Administration (POEA) and POEA Memorandum Circular No.
05, series of 1994, on the grounds that:
(1) The POEA does not have the power and authority to fix
and promulgate rates affecting death and workmen's
compensation of Filipino seamen working in ocean-going
vessels; only Congress can.
(2) Even granting that the POEA has that power, it,
nevertheless, violated the standards for its exercise.
(3) The resolution and the memorandum circular are
unconstitutional because they violate the equal protection
and non-impairment of obligation of contracts clauses of the
Constitution.
(4) The resolution and the memorandum circular are not,
valid acts of the Governing Board because the private sector
representative mandated by law has not been appointed by
the President since the creation of the POEA.
Governing Board Resolution No. 01, issued on 14 January
1994, 1 read as follows:
GOVERNING RESOLUTION NO. 01 SERIES OF 1994.

WHEREAS, it is the policy of the Administration to afford

protection to Filipino overseas contract workers, including
seafarers and their families, promote their interest and
safeguard their welfare;
WHEREAS, the Administration under its mandate has the
power and function to secure the best terms and conditions
of employment of Filipino contract workers land ensure
compliance therewith;
WHEREAS, the minimum compensation and other benefits in
cases of death, disability and loss or damage to crew's
effects provided under the POEA Standard Employment
Contract for seafarers which was revised in 1989 are now
becoming very much lesser than the prevailing international
standards and those given to unionized seafarers as provided
by their collective bargaining agreements;
WHEREAS, the Tripartite Technical Working Group convened
for the purpose of deliberating the compensation and
benefits provided under the POEA Standard Employment
Contract for seafarers has recommended for the upgrading of
the said compensation and benefits;
WHEREAS, for the interest of Filipino seafarers and their
families, there is an urgent need to improve and realign the
minimum compensation and other benefits provided under
the POEA Standard Employment Contract for seafarers in
order to keep them at par with prevailing international
standards and those provided under collective bargaining
agreements.
NOW, THEREFORE, the POEA Governing Board, in a meeting
duly convened, hereby resolves to amend and increase the
compensation and other benefits as specified under Part II,
Section. C, paragraph 1 and Section L, paragraphs 1 and 2 of
the POEA Standard Employment Contract for Seafarers which
shall henceforth read as follows:
I. Section C. COMPENSATION AND BENEFITS
1. In case of death of the seaman during the term of his
Contract, the employer shall pay his beneficiaries the
Philippine Currency equivalent to the amount of US$50,000
and an additional amount of US$7,000 to each child under
the age of twenty-one (21) but not exceeding four children at
the exchange rate prevailing during the time of payment.
Where the death is caused by warlike activity while sailing
within a declared warzone or war risk area, the compensation

payable shall be doubled. The employer shall undertake

appropriate warzone insurance coverage for this purpose.
xxx xxx xxx
III. The maximum rate provided under Appendix I-A shall
likewise be adjusted to US$50,000 regardless of rank and
position of the seafarer.
IV. Upon effectivity, the new compensation and other benefits
herein provided shall apply to any Filipino seafarer on board
any vessel, provided, that the cause of action occurs after
this Resolation takes effect.
V. This Resolution shall take effect after sixty (60) days from
publication in a newspaper of general circulation.
Memorandum Circular No. 05, issued on 19 January 1994 2 by
POEA Administrator Felicisimo Joson and addressed to all
Filipino seafarers, manning agencies, shipownersl managers
and principals hiring Filipino seafarers, informed them .that
Governing Board Resolution No. 01 adjusted the rates of
compensation and other benefits in Part II, Section C.
paragraph 1; Section L, paragraphs 1 and 2; and Appendix 1A of the POEA Standard Employment Contracts for Seafarers,
which adjustments took effect on 20 March 1994, and that:
VI. Upon effectivity, the new compensation and other
benefits shall apply to any Filipino seafarer already on-board
any vessel provided, that the case of action occurs after the
said compensation and benefits take effect;
The Tripartite Technical Working Group mentioned in the
Resolution, which convened on 7 January 1994, was
composed of the following:
1. DA Crescencio M. Siddayao, POEA
2. Dir. Angeles T. Wong, POEA
3. Dir. Jaime P. Jimenez; POEA
4. Dir. Lorna O. Fajardo, POEA
5. OIC Salome Mendoza, POEA
6. Capt. Gregorio Oca, AMOSUP
7. Atty, Romeo Occena, PSU-ALUI-TUCP
8. Mr. Vicente Aldanese, FAME
9. Capt. Emmanuel L. Regio, PAMSS
10. Atty. Rexlito Bermudez, COMMA
11. Atty. Alexandro W. Cruje, POEA
12 Hr. Jay Rosauro Baluyot, POEA
13. Ms. Magdalena Sarcos, POEA
14. Atty. Augusto Arreza, FSA 3

In their, comment. the public respondents contend that the

petition is without merit and should de dismissed because (a)
the issuance of the challenged resolution and memorandum
circular was a valid exercise of the POEA's rule-making
authority or power of subordinate legislation which this Court
had sustained in Eastern Shipping Lines, Inc. vs. POEA; 4 (b)
the "non-appointment" of the third member of the Governing
Board bees not necessarily invalidate the acts of the Board,
for it has been functioning "under the advisement of t the
Tripartite Technical Working Group which group is incidentally
constituted by the private sector, i.e., seafarer employers
and/or associations of manning agencies including herein
petitioner," for which reason "the third member
complement . . . has been substantially represented by said
technical working group"; 5 and(d) the consensus on the
increase in the rates of compensation and other benefits was
arrived at after appropriate consultations with the shipowners
and the private sector; the Board therefore soundly exercised
its discretion.
In view of the importance of the issues raised, we gave due
course to the petition and required the parties to submit their
respective memoranda. The petitioners while the public
respondents opted to adopt their comment as their
memorandum.
The constitutional challenge of the rule-making power of the
POEA-based on impermissible delegation of legislative power
had been, as correctly contented by the public respondents,
brushed aside by this Court inEastern Shipping Lines, Inc. vs.
POEA. 6 The petitioner in that , case assailed the
constitutionality of Memorandum Circular No. 02 of the POEA
(effective February 1984) which prescribed a standard
contract to be adopted by both foreign and domestic
shipping companies in the hiring of Filipino seamen for
overseas. The challenged resolution and memorandum
overseas employment circular here merely further amended
Memorandum Circular No. 02, which was earlier amended in
1989 per Memorandum Circular No. 41, 7 series of 1989.
In sustaining the rule-making authority of the POEA and in
holding against the claimed infirmity of delegation of
legislative power, Eastern first considered the history of the
charter of the POEA and then discussed separately the above
constitutional issues thus:

[T]he petitioner questions the validity of Memorandum

Circular No. 2 itself as violative of the principle of nondelegation of legislative power. It contends that no authority
had been given the POEA to promulgate the said regulation;
and even with such authorization, the regulation represents
an exercise of legislative discretion which, under the
principle, is not subject to delegation.
The authority to issue the said regulation is clearly provided
in Section 4(a) of Executive Order No. 797, reading as
follows:
. . . The governing Board of the Administration (POEA), as
hereunder provided, shall promulgate the necessary rules
and regulations to govern the exercise of the adjudicatory
functions of the Administration (POEA).
Similar authorization had been granted the National Seamen
Board, which, as earlier observed, had itself prescribed a
standard shipping contract substantially the same as the
format adopted by the POEA.
The second challenge is more serious as it is true that
legislative discretion as to the substantive contents of the
law cannot be delegated. What can be delegated is the
discretion to determine how the law may been forced, not
what the law shall be. The ascertainment of the latter subject
is a prerogative of the legislature. This prerogative cannot be
abdicated or surrendered by the legislature to the
delegate. . . .
...
The principle, of non-delegation of powers is applicable to all
the three major powers of the Government but is especially
important in the case of the legislative power because of the
many instances when delegation is permitted. The occasions
are rare when executive or judicial powers have to be
delegated by the authorities to which they legally pertain. In
the case of legislative power, however, such occasions have
become more and more frequent, if not necessary. This had
led to the observation that the delegation of legislative power
has become the rule and its non-delegation the exception.
The reason is the increasing complexity of the task of
government and the growing inability of the legislature to
cope directly with the myriad problems demanding its
attention. The growth of society has ramified its activities
and created peculiar and sophisticated problems that the

legislature cannot be expected reasonably to comprehend.

Specialization even in legislation has become necessary. To
many of the problems attendant upon present-day
undertakings, the legislature may not have the competence
to provide the required direct and efficacious not to say,
specific solutions. These solutions may, however, be
expected from its delegates, who are supposed to be experts
in the particular fields assigned to them.
The reasons given above for the delegation of legislative
powers in general are particularly applicable to
administrative bodies. With the proliferation of specialized
activities and their attendant peculiar problems, the national
legislature has found it more and more necessary to entrust
to administrative agencies the authority to issue rules to
carry out the general provisions of the statute. This is called
the "power of subordinate legislation."
With this power, administrative bodies may implement the
broad policies laid down in a statute by "filling in" the details
which the Congress may not have the opportunity or
competence to provide. This is effected by their promulgation
of what are known as supplementary regulations, such as the
implementing rules issued by the Department of Labor on the
new Labor Code. These regulations have the force and effect
of law.
...
Memorandum Circular No. 2 is one such administrative
regulation. The podel contract prescribed thereby has been
applied in a significant number of the cases without
challenge by the employer. The power of the POEA, (and
before it the National Seamen Board) in requiring the model
contract is not unlimited as there is a sufficient standard
guiding the delegate in the exercise of the said authority.
That standard is discoverable in the executive order itself
which, in creating the Philippine Overseas Employment
Administration, mandated it to protect the rights of overseas
Filipino workers to "fair and equitable employment
practices.8
The POEA mandate referred to as providing the reasonable
standard for the exercise of the POEA's rule-making authority
is found in the statement of powers and functions of the said
office in paragraph (a), Section 4 of E.O. 797, to wit:

(a) The Administration shall formulate and undertake in

coordination where necessary with the appropriate entities
concerned, a systematic program for promoting and
monitoring the overseas employment of Filipino workers
taking into consideration domestic manpower requirements,
and to protect their rights to fair and equitable employment
practices. It shall have original and exclusive jurisdiction over
all cases, including money claims, involving employeremployee relations arising out of or by virtue of any law or
contract involving Filipino workers for overseas employment,
including seamen. This adjudicatory function shall be,
undertaken in appropriate circumstances in consultation with
the Construction Industry Authority of the Philippines. The
governing Board of the Administration, as hereinunder
provided, shall promulgate the necessary rules and
regulations to govern the exercise of the adjudicatory
functions of the Administration.
It is, of course, well established in our jurisdiction that, while
the making of laws is a non-delegable power that pertains
exclusively to Congress, nevertheless, the latter may
constitutionally delegate the authority to promulgate rules
and regulations to implement a given legislation and
effectuate its policies, for the reason that the legislature finds
it impracticable, if not impossible, to anticipate situations
that may be met in carrying the law into effect. All that is
required is that the regulation should be germane to the
objects and purposes of the law; that the regulation be not in
contradiction to but in conformity with the standards
prescribed by the law. 9 This is the principle of subordinate
legislation which was discussed by this Court in People vs.
Rosenthal 10 and in Pangasinan Transportation vs. Public
Service Commission. 11 Thus in Calalang vs. Williams, 12 this
Court stated:
In the case of People vs. Rosenthal and Osmea, G.R. Nos.
46076 and 46077, promulgated June 12, 1939, and in
Pangasinan Transportation vs. The Public Service
Commission, G.R. No. 47065, promulgated June 26, 1940, this
Court had occasion to observe that the principle of
separation of powers has been made to adapt itself to the
complexities of modern governments, giving rise to the
adoption, within certain limits, of the principle of
"subordinate legislation" not only in the United States and

England but in practically all modern governments.

Accordingly, with the growing complexity of modern life, the
multiplication of the subjects of governmental regulations,
and the increased difficulty of administering the laws, the
rigidity of the theory of separation of governmental powers
has, to a large extent, been relaxed by permitting the
delegation of greater powers by the legislative and vesting a
larger amount of discretion in administrative and executive
officials, not only in the execution of the laws, but also in the
promulgation of certain rules and regulations calculated to
promote public interest.
That the challenged resolution and memorandum circular,
which merely further amended the previous Memorandum
Circular No. 02, strictly conform to the sufficient and valid
standard of "fair and equitable employment practices"
prescribed in E.O. No. 797 can no longer be disputed. 13
There is, as well, no merit to the claim that the assailed
resolution and memorandum circular violate the equal
protection and contract clauses of the Constitution. To
support its contention of in equality, the petitioners claim
discrimination against foreign shipowners and principals
employing Filipino seamen and in favor of foreign employers
employing overseas Filipinos who are not seamen. It is an
established principle of constitutional law that the guaranty
of equal protection of the laws is not violated by legislation
based on reasonable classification. And for the classification
to be reasonable, it (1) must rest on substantial distinctions;
(2) must be germane to the purpose of the law; (3) must not
be limited to existing conditions only; and (4) must apply
equally to all members of the same class. 14 There can be no
dispute about the dissimilarities between land-based and
sea-based Filipino overseas workers in terms of, among other
things, work environment, safety, dangers and risks to life
and limb, and accessibility to social, civic, and spiritual
activities.
Nor is there-merit; in the claim that the resolution and
memorandum circular violate the contract clause of the Bill
of Rights.
The executive order creating the POEA was enacted to
further implement the social justice provisions of the 1973.
Constitution, which have been greatly enhanced and
expanded in the 1987 Constitution by placing them under a

separate Article. 15 The Article on Social Justice was aptly

described as the "heart of the new Charter" by the President
of the 1986 Constitution Commission, retired Justice-Cecilia
Muoz-Palma. 16 Social justice is identified with the broad
scope of the police power of the state and requires the
extensive use of such power. 17 In Calalang vs.
Williams, 18 this. Court, speaking through Justice Jose P.
Laurel, expounded on social justice thus:
Social justice is "neither communism, nor despotism, nor
atomism, nor anarchy," but the Humanization of laws and the
equalization of social and economic forces by the State so
that justice in its rational and objectively secular conception
may at least be approximated. Social justice means the
promotion of the welfare of all the people, the adoption by
the Government of measures calculated to insure economic
stability of all the competent elements of society, through
the maintenance of a proper economic and social equilibrium
in the interrelations of the members of the community,
constitutionally, through the adoption of measures legally
justifiable, or extra-constitutionally, through the exercise of
powers underlying the existence of all governments on the
time-honored principle of salus populi est suprema lex.
Social justice, therefore, must be founded on the recognition
of the necessity of interdependence among divers and
diverse units of a society and of the protection that should be
equally and evenly extended to all groups as a combined
force in our social and economic life, consistent with the
fundamental and paramount objective of the state of
promoting the health, comfort, and quiet of all persons, and
of bringing about "the greatest good to the greatest number."
The constitutional prohibition against impairing contractual
obligations is not absolute and is not to be read with literal
exactness . It is restricted to contracts with respect to
property or some object of value and which confer rights that
maybe asserted in a court of justice; it has no application to
statutes relating to public subjects within the domain of the
general legislative powers of the State and involving the
public rights and public welfare of the entire community
affected by it. It does not prevent a proper exercise by the
State of its police power by enacting regulations reasonably
necessary to secure the health, safety, morals; comfort, or
general welfare of the community, even though contracts

may thereby be affected, for such matters cannot be placed

by contract beyond the power of the State to regulate and
control them. 19
Verily, the freedom to contract is not absolute; all contracts
and all rights are subject to the police power of the State and
not only may regulations which affect them be established by
the State, but all such regulations must be subject to change
from time to time, as the general, well-being of the
community may require, or as the circumstances may
change, or as experience may demonstrate the
necessity. 20 And under the Civil Code, contracts of labor are
explicitly subject to the police power of the State because
they are not ordinary contracts but are impresses with public
interest. Article 1700 thereof expressly provides:
Art. 1700. The relations between capital and labor are not
merely contractual. They are so impressed with public
interest that labor contracts lust yield to the common good.
Therefore, such contracts are subject to the special laws on
labor unions, collective bargaining, strikes and lockouts,
closed shop, wages, working conditions, hours of labor and
similar subjects.
The challenged resolution and memorandum circular being
valid implementations of E.O. No. 797, which was enacted
under the police power of the State, they cannot be struck
down on the ground that they violate the contract clause. To
hold otherwise is to alter long-established constitutional
doctrine and to subordinate the police power to the contract
clause.
The last issue concerns the contention that without the
appointment by the President of the third member of the
governing board, the POEA cannot legally function and
exercise its powers. This contention merits scant
consideration. Section 4 of E.O. No. 797 indubitably declares
the immediate creation of the POEA. Thus upon the
effectivity of E.O. No. 797, the POEA attained its juridical
personality. The appointment of the third member "who shall
be well versed, in the field of overseas employment,"
provided for in paragraph (b) of the said Section, was not
meant to be a sine gua non to the birth of the POEA, much
less to the validity of the acts of the Board. As a matter of
fact, in the same paragraph the President is given the

"discretion [to] designate a Deputy Administrator as the third

member of the Board."
WHEREFORE, for lack of merit, the instant petition is
DISMISSED with costs against the petitioners.
SO ORDERED.
Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-23825
December 24, 1965
EMMANUEL PELAEZ, petitioner,
vs.
THE AUDITOR GENERAL, respondent.
Zulueta, Gonzales, Paculdo and Associates for petitioner.
Office of the Solicitor General for respondent.

CONCEPCION, J.:
During the period from September 4 to October 29, 1964 the
President of the Philippines, purporting to act pursuant to
Section 68 of the Revised Administrative Code, issued
Executive Orders Nos. 93 to 121, 124 and 126 to 129;
creating thirty-three (33) municipalities enumerated in the
margin.1 Soon after the date last mentioned, or on November
10, 1964 petitioner Emmanuel Pelaez, as Vice President of
the Philippines and as taxpayer, instituted the present special
civil action, for a writ of prohibition with preliminary
injunction, against the Auditor General, to restrain him, as
well as his representatives and agents, from passing in audit
any expenditure of public funds in implementation of said
executive orders and/or any disbursement by said
municipalities.
Petitioner alleges that said executive orders are null and void,
upon the ground that said Section 68 has been impliedly
repealed by Republic Act No. 2370 and constitutes an undue
delegation of legislative power. Respondent maintains the
contrary view and avers that the present action is premature
and that not all proper parties referring to the officials of
the new political subdivisions in question have been
impleaded. Subsequently, the mayors of several
municipalities adversely affected by the aforementioned
executive orders because the latter have taken away from
the former the barrios composing the new political
subdivisions intervened in the case. Moreover, Attorneys
Enrique M. Fernando and Emma Quisumbing-Fernando were
allowed to and did appear as amici curiae.
The third paragraph of Section 3 of Republic Act No. 2370,
reads:
Barrios shall not be created or their boundaries altered nor
their names changed except under the provisions of this Act
or by Act of Congress.
Pursuant to the first two (2) paragraphs of the same Section
3:
All barrios existing at the time of the passage of this Act shall
come under the provisions hereof.
Upon petition of a majority of the voters in the areas
affected, a new barrio may be created or the name of an
existing one may be changed by the provincial board of the
province, upon recommendation of the council of the

municipality or municipalities in which the proposed barrio is

stipulated. The recommendation of the municipal council
shall be embodied in a resolution approved by at least twothirds of the entire membership of the said council: Provided,
however, That no new barrio may be created if its population
is less than five hundred persons.
Hence, since January 1, 1960, when Republic Act No. 2370
became effective, barrios may "not be created or their
boundaries altered nor their names changed" except by Act
of Congress or of the corresponding provincial board "upon
petition of a majority of the voters in the areas affected" and
the "recommendation of the council of the municipality or
municipalities in which the proposed barrio is situated."
Petitioner argues, accordingly: "If the President, under this
new law, cannot even create a barrio, can he create a
municipality which is composed of several barrios,
since barrios are units of municipalities?"
Respondent answers in the affirmative, upon the theory that
a new municipality can be created without creating new
barrios, such as, by placing old barrios under the jurisdiction
of the new municipality. This theory overlooks, however, the
main import of the petitioner's argument, which is that the
statutory denial of the presidential authority to create a new
barrio implies a negation of the bigger power to create
municipalities, each of which consists of several barrios. The
cogency and force of this argument is too obvious to be
denied or even questioned. Founded upon logic and
experience, it cannot be offset except by a clear
manifestation of the intent of Congress to the contrary, and
no such manifestation, subsequent to the passage of
Republic Act No. 2379, has been brought to our attention.
Moreover, section 68 of the Revised Administrative Code,
upon which the disputed executive orders are based,
provides:
The (Governor-General) President of the Philippines may by
executive order define the boundary, or boundaries, of any
province, subprovince, municipality, [township] municipal
district, or other political subdivision, and increase or
diminish the territory comprised therein, may divide any
province into one or more subprovinces, separate any
political division other than a province, into such portions as
may be required, merge any of such subdivisions or portions

with another, name any new subdivision so created, and may

change the seat of government within any subdivision to
such place therein as the public welfare may require:
Provided, That the authorization of the (Philippine
Legislature) Congress of the Philippines shall first be obtained
whenever the boundary of any province or subprovince is to
be defined or any province is to be divided into one or more
subprovinces. When action by the (Governor-General)
President of the Philippines in accordance herewith makes
necessary a change of the territory under the jurisdiction of
any administrative officer or any judicial officer, the
(Governor-General) President of the Philippines, with the
recommendation and advice of the head of the Department
having executive control of such officer, shall redistrict the
territory of the several officers affected and assign such
officers to the new districts so formed.
Upon the changing of the limits of political divisions in
pursuance of the foregoing authority, an equitable
distribution of the funds and obligations of the divisions
thereby affected shall be made in such manner as may be
recommended by the (Insular Auditor) Auditor General and
approved by the (Governor-General) President of the
Philippines.
Respondent alleges that the power of the President to create
municipalities under this section does not amount to an
undue delegation of legislative power, relying
upon Municipality of Cardona vs. Municipality of
Binagonan (36 Phil. 547), which, he claims, has settled it.
Such claim is untenable, for said case involved, not the
creation of a new municipality, but a mere transfer of
territory from an already existing municipality (Cardona) to
another municipality (Binagonan), likewise, existing at the
time of and prior to said transfer (See Gov't of the P.I. ex rel.
Municipality of Cardona vs. Municipality, of Binagonan [34
Phil. 518, 519-5201) in consequence of the fixing and
definition, pursuant to Act No. 1748, of the common
boundaries of two municipalities.
It is obvious, however, that, whereas the power to fix such
common boundary, in order to avoid or settle conflicts of
jurisdiction between adjoining municipalities, may partake of
an administrative nature involving, as it does, the adoption
of means and ways to carry into effect the law creating said

municipalities the authority to create municipal

corporations is essentially legislative in nature. In the
language of other courts, it is "strictly a legislative function"
(State ex rel. Higgins vs. Aicklen, 119 S. 425, January 2,
1959) or "solely and exclusively the exercise
oflegislative power" (Udall vs. Severn, May 29, 1938, 79 P. 2d
347-349). As the Supreme Court of Washington has put it
(Territory ex rel. Kelly vs. Stewart, February 13, 1890, 23 Pac.
405, 409), "municipal corporations are purely the creatures
of statutes."
Although1a Congress may delegate to another branch of the
Government the power to fill in the details in the execution,
enforcement or administration of a law, it is essential, to
forestall a violation of the principle of separation of powers,
that said law: (a) be complete in itself it must set forth
therein the policy to be executed, carried out or implemented
by the delegate2 and (b) fix a standard the limits of
which are sufficiently determinate or determinable to
which the delegate must conform in the performance of his
functions.2aIndeed, without a statutory declaration of policy,
the delegate would in effect, make or formulate such policy,
which is the essence of every law; and, without the
aforementioned standard, there would be no means to
determine, with reasonable certainty, whether the delegate
has acted within or beyond the scope of his
authority.2b Hence, he could thereby arrogate upon himself
the power, not only to make the law, but, also and this is
worse to unmake it, by adopting measures inconsistent
with the end sought to be attained by the Act of Congress,
thus nullifying the principle of separation of powers and the
system of checks and balances, and, consequently,
undermining the very foundation of our Republican system.
Section 68 of the Revised Administrative Code does not meet
these well settled requirements for a valid delegation of the
power to fix the details in the enforcement of a law. It does
not enunciate any policy to be carried out or implemented by
the President. Neither does it give a standard sufficiently
precise to avoid the evil effects above referred to. In this
connection, we do not overlook the fact that, under the last
clause of the first sentence of Section 68, the President:

... may change the seat of the government within any

subdivision to such place therein as the public welfare may
require.
It is apparent, however, from the language of this clause,
that the phrase "as the public welfare may require"
qualified, not the clauses preceding the one just quoted,
but only the place to which the seat of the government may
be transferred. This fact becomes more apparent when we
consider that said Section 68 was originally Section 1 of Act
No. 1748,3 which provided that, "whenever in the judgment
of the Governor-General the public welfare requires, he may,
by executive order," effect the changes enumerated therein
(as in said section 68), including the change of the seat of
the government "to such place ... as the public interest
requires." The opening statement of said Section 1 of Act No.
1748 which was not included in Section 68 of the Revised
Administrative Code governed the time at which, or the
conditions under which, the powers therein conferred could
be exercised; whereas the last part of the first sentence of
said section referred exclusively to the place to which the
seat of the government was to be transferred.
At any rate, the conclusion would be the same, insofar as the
case at bar is concerned, even if we assumed that the phrase
"as the public welfare may require," in said Section 68,
qualifies all other clauses thereof. It is true that in Calalang
vs. Williams (70 Phil. 726) and People vs. Rosenthal (68 Phil.
328), this Court had upheld "public welfare" and "public
interest," respectively, as sufficient standards for a valid
delegation of the authority to execute the law. But, the
doctrine laid down in these cases as all judicial
pronouncements must be construed in relation to the
specific facts and issues involved therein, outside of which
they do not constitute precedents and have no binding
effect.4 The law construed in the Calalang case conferred
upon the Director of Public Works, with the approval of the
Secretary of Public Works and Communications, the power to
issue rules and regulations topromote safe transit upon
national roads and streets. Upon the other hand, the
Rosenthal case referred to the authority of the Insular
Treasurer, under Act No. 2581, to issue and cancel
certificates or permits for the sale ofspeculative securities.
Both cases involved grants to administrative officers of

powers related to the exercise of their administrative

functions, calling for the determination of questions of fact.
Such is not the nature of the powers dealt with in section 68.
As above indicated, the creation of municipalities, is not
an administrative function, but one which is essentially
and eminently legislative in character. The question of
whether or not "public interest" demands the exercise of
such power is not one of fact. it is "purely a
legislativequestion "(Carolina-Virginia Coastal Highway vs.
Coastal Turnpike Authority, 74 S.E. 2d. 310-313, 315-318), or
apolitical question (Udall vs. Severn, 79 P. 2d. 347-349). As
the Supreme Court of Wisconsin has aptly characterized it,
"the question as to whether incorporation is for the best
interest of the community in any case is emphatically
a question of public policy and statecraft" (In re Village of
North Milwaukee, 67 N.W. 1033, 1035-1037).
For this reason, courts of justice have annulled, as
constituting undue delegation of legislative powers, state
laws granting the judicial department, the power to
determine whether certain territories should be annexed to a
particular municipality (Udall vs. Severn, supra, 258-359); or
vesting in a Commission the right to determine the plan and
frame of government of proposed villages and what functions
shall be exercised by the same, although the powers and
functions of the village are specifically limited by statute (In
re Municipal Charters, 86 Atl. 307-308); or conferring upon
courts the authority to declare a given town or village
incorporated, and designate its metes and bounds, upon
petition of a majority of the taxable inhabitants thereof,
setting forth the area desired to be included in such village
(Territory ex rel Kelly vs. Stewart, 23 Pac. 405-409); or
authorizing the territory of a town, containing a given area
and population, to be incorporated as a town, on certain
steps being taken by the inhabitants thereof and on certain
determination by a court and subsequent vote of the
inhabitants in favor thereof, insofar as the court is allowed to
determine whether the lands embraced in the petition "ought
justly" to be included in the village, and whether the interest
of the inhabitants will be promoted by such incorporation,
and to enlarge and diminish the boundaries of the proposed
village "as justice may require" (In re Villages of North
Milwaukee, 67 N.W. 1035-1037); or creating a Municipal

Board of Control which shall determine whether or not the

laying out, construction or operation of a toll road is in the
"public interest" and whether the requirements of the law
had been complied with, in which case the board shall enter
an order creating a municipal corporation and fixing the
name of the same (Carolina-Virginia Coastal Highway vs.
Coastal Turnpike Authority, 74 S.E. 2d. 310).
Insofar as the validity of a delegation of power by Congress
to the President is concerned, the case of Schechter Poultry
Corporation vs. U.S. (79 L. Ed. 1570) is quite relevant to the
one at bar. The Schechter case involved the constitutionality
of Section 3 of the National Industrial Recovery Act
authorizing the President of the United States to approve
"codes of fair competition" submitted to him by one or more
trade or industrial associations or corporations which "impose
no inequitable restrictions on admission to membership
therein and are truly representative," provided that such
codes are not designed "to promote monopolies or to
eliminate or oppress small enterprises and will not operate to
discriminate against them, and will tend to effectuate the
policy" of said Act. The Federal Supreme Court held:
To summarize and conclude upon this point: Sec. 3 of the
Recovery Act is without precedent. It supplies no standards
for any trade, industry or activity. It does not undertake to
prescribe rules of conduct to be applied to particular states of
fact determined by appropriate administrative procedure.
Instead of prescribing rules of conduct, it authorizes the
making of codes to prescribe them. For that legislative
undertaking, Sec. 3 sets up no standards, aside from the
statement of the general aims of rehabilitation, correction
and expansion described in Sec. 1. In view of the scope of
that broad declaration, and of the nature of the few
restrictions that are imposed, the discretion of the President
in approving or prescribing codes, and thus enacting laws for
the government of trade and industry throughout the
country, is virtually unfettered. We think that the code
making authority thus conferred is an unconstitutional
delegation of legislative power.
If the term "unfair competition" is so broad as to vest in the
President a discretion that is "virtually unfettered." and,
consequently, tantamount to a delegation of legislative
power, it is obvious that "public welfare," which has even a

broader connotation, leads to the same result. In fact, if the

validity of the delegation of powers made in Section 68 were
upheld, there would no longer be any legal impediment to a
statutory grant of authority to the President to do anything
which, in his opinion, may be required by public welfare or
public interest. Such grant of authority would be a virtual
abdication of the powers of Congress in favor of the
Executive, and would bring about a total collapse of the
democratic system established by our Constitution, which it
is the special duty and privilege of this Court to uphold.
It may not be amiss to note that the executive orders in
question were issued after the legislative bills for the
creation of the municipalities involved in this case had failed
to pass Congress. A better proof of the fact that the issuance
of said executive orders entails the exercise of purely
legislative functions can hardly be given.
Again, Section 10 (1) of Article VII of our fundamental law
ordains:
The President shall have control of all the executive
departments, bureaus, or offices, exercise general
supervision over all local governments as may be provided
by law, and take care that the laws be faithfully executed.
The power of control under this provision implies the right of
the President to interfere in the exercise of such discretion as
may be vested by law in the officers of the executive
departments, bureaus, or offices of the national government,
as well as to act in lieu of such officers. This power
is denied by the Constitution to the Executive, insofar as local
governments are concerned. With respect to the latter, the
fundamental law permits him to wield no more authority than
that of checking whether said local governments or the
officers thereof perform their duties as provided by statutory
enactments. Hence, the President cannot interfere with local
governments, so long as the same or its officers act Within
the scope of their authority. He may not enact an ordinance
which the municipal council has failed or refused to pass,
even if it had thereby violated a duty imposed thereto by law,
although he may see to it that the corresponding provincial
officials take appropriate disciplinary action therefor. Neither
may he vote, set aside or annul an ordinance passed by said
council within the scope of its jurisdiction, no matter how
patently unwise it may be. He may not even suspend an

elective official of a regular municipality or take any

disciplinary action against him, except on appeal from a
decision of the corresponding provincial board. 5
Upon the other hand if the President could create a
municipality, he could, in effect, remove any of its officials,
by creating a new municipality and including therein
the barrio in which the official concerned resides, for his
office would thereby become vacant.6 Thus, by merely
brandishing the power to create a new municipality (if he had
it), without actually creating it, he could compel local officials
to submit to his dictation, thereby, in effect, exercising over
them the power of control denied to him by the Constitution.
Then, also, the power of control of the President over
executive departments, bureaus or offices implies no
morethan the authority to assume directly the functions
thereof or to interfere in the exercise of discretion by its
officials. Manifestly, such control does not include the
authority either to abolish an executive department or
bureau, or to create a new one. As a consequence, the
alleged power of the President to create municipal
corporations would necessarily connote the exercise by him
of an authority even greater than that of control which he has
over the executive departments, bureaus or offices. In other
words, Section 68 of the Revised Administrative Code does
not merely fail to comply with the constitutional mandate
above quoted. Instead of giving the President less power over
local governments than that vested in him over the executive
departments, bureaus or offices, it reverses the process and
does the exact opposite, by conferring upon him more power
over municipal corporations than that which he has over said
executive departments, bureaus or offices.
In short, even if it did entail an undue delegation of
legislative powers, as it certainly does, said Section 68, as
part of the Revised Administrative Code, approved on March
10, 1917, must be deemed repealed by the subsequent
adoption of the Constitution, in 1935, which is utterly
incompatible and inconsistent with said statutory
enactment.7
There are only two (2) other points left for consideration,
namely, respondent's claim (a) that "not all the proper
parties" referring to the officers of the newly created

municipalities "have been impleaded in this case," and (b)

that "the present petition is premature."
As regards the first point, suffice it to say that the records do
not show, and the parties do not claim, that the officers of
any of said municipalities have been appointed or elected
and assumed office. At any rate, the Solicitor General, who
has appeared on behalf of respondent Auditor General, is the
officer authorized by law "to act and represent the
Government of the Philippines, its offices and agents, in any
official investigation, proceeding or matter requiring the
services of a lawyer" (Section 1661, Revised Administrative
Code), and, in connection with the creation of the
aforementioned municipalities, which involves a political, not
proprietary, function, said local officials, if any, are mere
agents or representatives of the national government. Their
interest in the case at bar has, accordingly, been, in effect,
duly represented.8
With respect to the second point, respondent alleges that he
has not as yet acted on any of the executive order & in
question and has not intimated how he would act in
connection therewith. It is, however, a matter of common,
public knowledge, subject to judicial cognizance, that the
President has, for many years, issued executive orders
creating municipal corporations and that the same have been
organized and in actual operation, thus indicating, without
peradventure of doubt, that the expenditures incidental
thereto have been sanctioned, approved or passed in audit
by the General Auditing Office and its officials. There is no
reason to believe, therefore, that respondent would adopt a
different policy as regards the new municipalities involved in
this case, in the absence of an allegation to such effect, and
none has been made by him.
WHEREFORE, the Executive Orders in question are hereby
declared null and void ab initio and the respondent
permanently restrained from passing in audit any
expenditure of public funds in implementation of said
Executive Orders or any disbursement by the municipalities
above referred to. It is so ordered.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera and
Dizon, JJ., concur.
Zaldivar, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 17122
February 27, 1922
THE UNITED STATES, plaintiff-appellee,
vs.
ANG TANG HO, defendant-appellant.
Williams & Ferrier for appellant.
Acting Attorney-General Tuason for appellee.
JOHNS, J.:
At its special session of 1919, the Philippine Legislature
passed Act No. 2868, entitled "An Act penalizing the
monopoly and holding of, and speculation in, palay, rice, and
corn under extraordinary circumstances, regulating the
distribution and sale thereof, and authorizing the GovernorGeneral, with the consent of the Council of State, to issue the
necessary rules and regulations therefor, and making an
appropriation for this purpose," the material provisions of
which are as follows:
Section 1. The Governor-General is hereby authorized,
whenever, for any cause, conditions arise resulting in an
extraordinary rise in the price of palay, rice or corn, to issue
and promulgate, with the consent of the Council of State,
temporary rules and emergency measures for carrying out
the purpose of this Act, to wit:
(a) To prevent the monopoly and hoarding of, and speculation
in, palay, rice or corn.
(b) To establish and maintain a government control of the
distribution or sale of the commodities referred to or have
such distribution or sale made by the Government itself.
(c) To fix, from time to time the quantities of palay rice, or
corn that a company or individual may acquire, and the
maximum sale price that the industrial or merchant may
demand.
(d) . . .
SEC. 2. It shall be unlawful to destroy, limit, prevent or in any
other manner obstruct the production or milling of palay, rice
or corn for the purpose of raising the prices thereof; to corner

or hoard said products as defined in section three of this

Act; . . .
Section 3 defines what shall constitute a monopoly or
hoarding of palay, rice or corn within the meaning of this Act,
but does not specify the price of rice or define any basic for
fixing the price.
SEC. 4. The violations of any of the provisions of this Act or of
the regulations, orders and decrees promulgated in
accordance therewith shall be punished by a fine of not more
than five thousands pesos, or by imprisonment for not more
than two years, or both, in the discretion of the
court: Provided, That in the case of companies or
corporations the manager or administrator shall be criminally
liable.
SEC. 7. At any time that the Governor-General, with the
consent of the Council of State, shall consider that the public
interest requires the application of the provisions of this Act,
he shall so declare by proclamation, and any provisions of
other laws inconsistent herewith shall from then on be
temporarily suspended.
Upon the cessation of the reasons for which such
proclamation was issued, the Governor-General, with the
consent of the Council of State, shall declare the application
of this Act to have likewise terminated, and all laws
temporarily suspended by virtue of the same shall again take
effect, but such termination shall not prevent the prosecution
of any proceedings or cause begun prior to such termination,
nor the filing of any proceedings for an offense committed
during the period covered by the Governor-General's
proclamation.
August 1, 1919, the Governor-General issued a proclamation
fixing the price at which rice should be sold.
August 8, 1919, a complaint was filed against the defendant,
Ang Tang Ho, charging him with the sale of rice at an
excessive price as follows:
The undersigned accuses Ang Tang Ho of a violation of
Executive Order No. 53 of the Governor-General of the
Philippines, dated the 1st of August, 1919, in relation with
the provisions of sections 1, 2 and 4 of Act No. 2868,
committed as follows:
That on or about the 6th day of August, 1919, in the city of
Manila, Philippine Islands, the said Ang Tang Ho, voluntarily,

illegally and criminally sold to Pedro Trinidad, one ganta of

rice at the price of eighty centavos (P.80), which is a price
greater than that fixed by Executive Order No. 53 of the
Governor-General of the Philippines, dated the 1st of August,
1919, under the authority of section 1 of Act No. 2868.
Contrary to law.
Upon this charge, he was tried, found guilty and sentenced to
five months' imprisonment and to pay a fine of P500, from
which he appealed to this court, claiming that the lower court
erred in finding Executive Order No. 53 of 1919, to be of any
force and effect, in finding the accused guilty of the offense
charged, and in imposing the sentence.
The official records show that the Act was to take effect on its
approval; that it was approved July 30, 1919; that the
Governor-General issued his proclamation on the 1st of
August, 1919; and that the law was first published on the
13th of August, 1919; and that the proclamation itself was
first published on the 20th of August, 1919.
The question here involves an analysis and construction of
Act No. 2868, in so far as it authorizes the Governor-General
to fix the price at which rice should be sold. It will be noted
that section 1 authorizes the Governor-General, with the
consent of the Council of State, for any cause resulting in an
extraordinary rise in the price of palay, rice or corn, to issue
and promulgate temporary rules and emergency measures
for carrying out the purposes of the Act. By its very terms,
the promulgation of temporary rules and emergency
measures is left to the discretion of the Governor-General.
The Legislature does not undertake to specify or define under
what conditions or for what reasons the Governor-General
shall issue the proclamation, but says that it may be issued
"for any cause," and leaves the question as to what is "any
cause" to the discretion of the Governor-General. The Act
also says: "For any cause, conditions arise resulting in an
extraordinary rise in the price of palay, rice or corn." The
Legislature does not specify or define what is "an
extraordinary rise." That is also left to the discretion of the
Governor-General. The Act also says that the GovernorGeneral, "with the consent of the Council of State," is
authorized to issue and promulgate "temporary rules and
emergency measures for carrying out the purposes of this
Act." It does not specify or define what is a temporary rule or

an emergency measure, or how long such temporary rules or

emergency measures shall remain in force and effect, or
when they shall take effect. That is to say, the Legislature
itself has not in any manner specified or defined any basis for
the order, but has left it to the sole judgement and discretion
of the Governor-General to say what is or what is not "a
cause," and what is or what is not "an extraordinary rise in
the price of rice," and as to what is a temporary rule or an
emergency measure for the carrying out the purposes of the
Act. Under this state of facts, if the law is valid and the
Governor-General issues a proclamation fixing the minimum
price at which rice should be sold, any dealer who, with or
without notice, sells rice at a higher price, is a criminal. There
may not have been any cause, and the price may not have
been extraordinary, and there may not have been an
emergency, but, if the Governor-General found the existence
of such facts and issued a proclamation, and rice is sold at
any higher price, the seller commits a crime.
By the organic law of the Philippine Islands and the
Constitution of the United States all powers are vested in the
Legislative, Executive and Judiciary. It is the duty of the
Legislature to make the law; of the Executive to execute the
law; and of the Judiciary to construe the law. The Legislature
has no authority to execute or construe the law, the
Executive has no authority to make or construe the law, and
the Judiciary has no power to make or execute the law.
Subject to the Constitution only, the power of each branch is
supreme within its own jurisdiction, and it is for the Judiciary
only to say when any Act of the Legislature is or is not
constitutional. Assuming, without deciding, that the
Legislature itself has the power to fix the price at which rice
is to be sold, can it delegate that power to another, and, if so,
was that power legally delegated by Act No. 2868? In other
words, does the Act delegate legislative power to the
Governor-General? By the Organic Law, all Legislative power
is vested in the Legislature, and the power conferred upon
the Legislature to make laws cannot be delegated to the
Governor-General, or any one else. The Legislature cannot
delegate the legislative power to enact any law. If Act no
2868 is a law unto itself and within itself, and it does nothing
more than to authorize the Governor-General to make rules
and regulations to carry the law into effect, then the

Legislature itself created the law. There is no delegation of

power and it is valid. On the other hand, if the Act within
itself does not define crime, and is not a law, and some
legislative act remains to be done to make it a law or a crime,
the doing of which is vested in the Governor-General, then
the Act is a delegation of legislative power, is
unconstitutional and void.
The Supreme Court of the United States in what is known as
the Granger Cases (94 U.S., 183-187; 24 L. ed., 94), first laid
down the rule:
Railroad companies are engaged in a public employment
affecting the public interest and, under the decision in
Munn vs. Ill., ante, 77, are subject to legislative control as to
their rates of fare and freight unless protected by their
charters.
The Illinois statute of Mar. 23, 1874, to establish reasonable
maximum rates of charges for the transportation of freights
and passengers on the different railroads of the State is not
void as being repugnant to the Constitution of the United
States or to that of the State.
It was there for the first time held in substance that a railroad
was a public utility, and that, being a public utility, the State
had power to establish reasonable maximum freight and
passenger rates. This was followed by the State of Minnesota
in enacting a similar law, providing for, and empowering, a
railroad commission to hear and determine what was a just
and reasonable rate. The constitutionality of this law was
attacked and upheld by the Supreme Court of Minnesota in a
learned and exhaustive opinion by Justice Mitchell, in the
case of State vs. Chicago, Milwaukee & St. Paul ry. Co. (38
Minn., 281), in which the court held:
Regulations of railway tariffs Conclusiveness of
commission's tariffs. Under Laws 1887, c. 10, sec. 8, the
determination of the railroad and warehouse commission as
to what are equal and reasonable fares and rates for the
transportation of persons and property by a railway company
is conclusive, and, in proceedings by mandamus to compel
compliance with the tariff of rates recommended and
published by them, no issue can be raised or inquiry had on
that question.
Same constitution Delegation of power to
commission. The authority thus given to the commission

to determine, in the exercise of their discretion and

judgement, what are equal and reasonable rates, is not a
delegation of legislative power.
It will be noted that the law creating the railroad commission
expressly provides
That all charges by any common carrier for the
transportation of passengers and property shall be equal and
reasonable.
With that as a basis for the law, power is then given to the
railroad commission to investigate all the facts, to hear and
determine what is a just and reasonable rate. Even then that
law does not make the violation of the order of the
commission a crime. The only remedy is a civil proceeding. It
was there held
That the legislative itself has the power to regulate railroad
charges is now too well settled to require either argument or
citation of authority.
The difference between the power to say what the law shall
be, and the power to adopt rules and regulations, or to
investigate and determine the facts, in order to carry into
effect a law already passed, is apparent. The true distinction
is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and
the conferring an authority or discretion to be exercised
under and in pursuance of the law.
The legislature enacts that all freights rates and passenger
fares should be just and reasonable. It had the undoubted
power to fix these rates at whatever it deemed equal and
reasonable.
They have not delegated to the commission any authority or
discretion as to what the law shall be, which would not be
allowable, but have merely conferred upon it an authority
and discretion, to be exercised in the execution of the law,
and under and in pursuance of it, which is entirely
permissible. The legislature itself has passed upon the
expediency of the law, and what is shall be. The commission
is intrusted with no authority or discretion upon these
questions. It can neither make nor unmake a single provision
of law. It is merely charged with the administration of the law,
and with no other power.

The delegation of legislative power was before the Supreme

Court of Wisconsin in Dowling vs. Lancoshire Ins. Co. (92
Wis., 63). The opinion says:
"The true distinction is between the delegation of power to
make the law, which necessarily involves a discretion as to
what it shall be, and conferring authority or discretion as to
its execution, to be exercised under and in pursuance of the
law. The first cannot be done; to the latter no valid objection
can be made."
The act, in our judgment, wholly fails to provide definitely
and clearly what the standard policy should contain, so that it
could be put in use as a uniform policy required to take the
place of all others, without the determination of the
insurance commissioner in respect to maters involving the
exercise of a legislative discretion that could not be
delegated, and without which the act could not possibly be
put in use as an act in confirmity to which all fire insurance
policies were required to be issued.
The result of all the cases on this subject is that a law must
be complete, in all its terms and provisions, when it leaves
the legislative branch of the government, and nothing must
be left to the judgement of the electors or other appointee or
delegate of the legislature, so that, in form and substance, it
is a law in all its details in presenti, but which may be left to
take effect in futuro, if necessary, upon the ascertainment of
any prescribed fact or event.
The delegation of legislative power was before the Supreme
Court in United States vs. Grimaud (220 U.S., 506; 55 L. ed.,
563), where it was held that the rules and regulations of the
Secretary of Agriculture as to a trespass on government land
in a forest reserve were valid constitutional. The Act there
provided that the Secretary of Agriculture ". . . may make
such rules and regulations and establish such service as will
insure the object of such reservations; namely, to regulate
their occupancy and use, and to preserve the forests thereon
from destruction;and any violation of the provisions of this
act or such rules and regulations shall be punished, . . ."
The brief of the United States Solicitor-General says:
In refusing permits to use a forest reservation for stock
grazing, except upon stated terms or in stated ways, the
Secretary of Agriculture merely assert and enforces the
proprietary right of the United States over land which it owns.

The regulation of the Secretary, therefore, is not an exercise

of legislative, or even of administrative, power; but is an
ordinary and legitimate refusal of the landowner's authorized
agent to allow person having no right in the land to use it as
they will. The right of proprietary control is altogether
different from governmental authority.
The opinion says:
From the beginning of the government, various acts have
been passed conferring upon executive officers power to
make rules and regulations, not for the government of
their departments, but for administering the laws which did
govern. None of these statutes could confer legislative power.
But when Congress had legislated power. But when Congress
had legislated and indicated its will, it could give to those
who were to act under such general provisions "power to fill
up the details" by the establishment of administrative rules
and regulations, the violation of which could be punished by
fine or imprisonment fixed by Congress, or by penalties fixed
by Congress, or measured by the injury done.
That "Congress cannot delegate legislative power is a
principle universally recognized as vital to the integrity and
maintenance of the system of government ordained by the
Constitution."
If, after the passage of the act and the promulgation of the
rule, the defendants drove and grazed their sheep upon the
reserve, in violation of the regulations, they were making an
unlawful use of the government's property. In doing so they
thereby made themselves liable to the penalty imposed by
Congress.
The subjects as to which the Secretary can regulate are
defined. The lands are set apart as a forest reserve. He is
required to make provisions to protect them from
depredations and from harmful uses. He is authorized 'to
regulate the occupancy and use and to preserve the forests
from destruction.' A violation of reasonable rules regulating
the use and occupancy of the property is made a crime, not
by the Secretary, but by Congress."
The above are leading cases in the United States on the
question of delegating legislative power. It will be noted that
in the "Granger Cases," it was held that a railroad company
was a public corporation, and that a railroad was a public
utility, and that, for such reasons, the legislature had the

power to fix and determine just and reasonable rates for

freight and passengers.
The Minnesota case held that, so long as the rates were just
and reasonable, the legislature could delegate the power to
ascertain the facts and determine from the facts what were
just and reasonable rates,. and that in vesting the
commission with such power was not a delegation of
legislative power.
The Wisconsin case was a civil action founded upon a
"Wisconsin standard policy of fire insurance," and the court
held that "the act, . . . wholly fails to provide definitely and
clearly what the standard policy should contain, so that it
could be put in use as a uniform policy required to take the
place of all others, without the determination of the
insurance commissioner in respect to matters involving the
exercise of a legislative discretion that could not be
delegated."
The case of the United States Supreme Court, supra dealt
with rules and regulations which were promulgated by the
Secretary of Agriculture for Government land in the forest
reserve.
These decisions hold that the legislative only can enact a
law, and that it cannot delegate it legislative authority.
The line of cleavage between what is and what is not a
delegation of legislative power is pointed out and clearly
defined. As the Supreme Court of Wisconsin says:
That no part of the legislative power can be delegated by the
legislature to any other department of the government,
executive or judicial, is a fundamental principle in
constitutional law, essential to the integrity and maintenance
of the system of government established by the constitution.
Where an act is clothed with all the forms of law, and is
complete in and of itself, it may be provided that it shall
become operative only upon some certain act or event, or, in
like manner, that its operation shall be suspended.
The legislature cannot delegate its power to make a law, but
it can make a law to delegate a power to determine some
fact or state of things upon which the law makes, or intends
to make, its own action to depend.
The Village of Little Chute enacted an ordinance which
provides:

All saloons in said village shall be closed at 11 o'clock P.M.

each day and remain closed until 5 o'clock on the following
morning, unless by special permission of the president.
Construing it in 136 Wis., 526; 128 A. S. R., 1100, 1 the
Supreme Court of that State says:
We regard the ordinance as void for two reasons; First,
because it attempts to confer arbitrary power upon an
executive officer, and allows him, in executing the ordinance,
to make unjust and groundless discriminations among
persons similarly situated; second, because the power to
regulate saloons is a law-making power vested in the village
board, which cannot be delegated. A legislative body cannot
delegate to a mere administrative officer power to make a
law, but it can make a law with provisions that it shall go into
effect or be suspended in its operations upon the
ascertainment of a fact or state of facts by an administrative
officer or board. In the present case the ordinance by its
terms gives power to the president to decide arbitrary, and in
the exercise of his own discretion, when a saloon shall close.
This is an attempt to vest legislative discretion in him, and
cannot be sustained.
The legal principle involved there is squarely in point here.
It must be conceded that, after the passage of act No. 2868,
and before any rules and regulations were promulgated by
the Governor-General, a dealer in rice could sell it at any
price, even at a peso per "ganta," and that he would not
commit a crime, because there would be no law fixing the
price of rice, and the sale of it at any price would not be a
crime. That is to say, in the absence of a proclamation, it was
not a crime to sell rice at any price. Hence, it must follow
that, if the defendant committed a crime, it was because the
Governor-General issued the proclamation. There was no act
of the Legislature making it a crime to sell rice at any price,
and without the proclamation, the sale of it at any price was
to a crime.
The Executive order2 provides:
(5) The maximum selling price of palay, rice or corn is hereby
fixed, for the time being as follows:
In Manila
Palay at P6.75 per sack of 57 kilos, or 29 centavos per
ganta.
Rice at P15 per sack of 57 kilos, or 63 centavos per ganta.

Corn at P8 per sack of 57 kilos, or 34 centavos per ganta.

In the provinces producing palay, rice and corn, the
maximum price shall be the Manila price less the cost of
transportation from the source of supply and necessary
handling expenses to the place of sale, to be determined by
the provincial treasurers or their deputies.
In provinces, obtaining their supplies from Manila or other
producing provinces, the maximum price shall be the
authorized price at the place of supply or the Manila price as
the case may be, plus the transportation cost, from the place
of supply and the necessary handling expenses, to the place
of sale, to be determined by the provincial treasurers or their
deputies.
(6) Provincial treasurers and their deputies are hereby
directed to communicate with, and execute all instructions
emanating from the Director of Commerce and Industry, for
the most effective and proper enforcement of the above
regulations in their respective localities.
The law says that the Governor-General may fix "the
maximum sale price that the industrial or merchant may
demand." The law is a general law and not a local or special
law.
The proclamation undertakes to fix one price for rice in
Manila and other and different prices in other and different
provinces in the Philippine Islands, and delegates the power
to determine the other and different prices to provincial
treasurers and their deputies. Here, then, you would have a
delegation of legislative power to the Governor-General, and
a delegation by him of that power to provincial treasurers
and their deputies, who "are hereby directed to communicate
with, and execute all instructions emanating from the
Director of Commerce and Industry, for the most effective
and proper enforcement of the above regulations in their
respective localities." The issuance of the proclamation by
the Governor-General was the exercise of the delegation of a
delegated power, and was even a sub delegation of that
power.
Assuming that it is valid, Act No. 2868 is a general law and
does not authorize the Governor-General to fix one price of
rice in Manila and another price in Iloilo. It only purports to
authorize him to fix the price of rice in the Philippine Islands
under a law, which is General and uniform, and not local or

special. Under the terms of the law, the price of rice fixed in
the proclamation must be the same all over the Islands.
There cannot be one price at Manila and another at Iloilo.
Again, it is a mater of common knowledge, and of which this
court will take judicial notice, that there are many kinds of
rice with different and corresponding market values, and that
there is a wide range in the price, which varies with the
grade and quality. Act No. 2868 makes no distinction in price
for the grade or quality of the rice, and the proclamation,
upon which the defendant was tried and convicted, fixes the
selling price of rice in Manila "at P15 per sack of 57 kilos, or
63 centavos per ganta," and is uniform as to all grades of
rice, and says nothing about grade or quality. Again, it will be
noted that the law is confined to palay, rice and corn. They
are products of the Philippine Islands. Hemp, tobacco,
coconut, chickens, eggs, and many other things are also
products. Any law which single out palay, rice or corn from
the numerous other products of the Islands is not general or
uniform, but is a local or special law. If such a law is valid,
then by the same principle, the Governor-General could be
authorized by proclamation to fix the price of meat, eggs,
chickens, coconut, hemp, and tobacco, or any other product
of the Islands. In the very nature of things, all of that class of
laws should be general and uniform. Otherwise, there would
be an unjust discrimination of property rights, which, under
the law, must be equal and inform. Act No. 2868 is nothing
more than a floating law, which, in the discretion and by a
proclamation of the Governor-General, makes it a floating
crime to sell rice at a price in excess of the proclamation,
without regard to grade or quality.
When Act No. 2868 is analyzed, it is the violation of the
proclamation of the Governor-General which constitutes the
crime. Without that proclamation, it was no crime to sell rice
at any price. In other words, the Legislature left it to the sole
discretion of the Governor-General to say what was and what
was not "any cause" for enforcing the act, and what was and
what was not "an extraordinary rise in the price of palay, rice
or corn," and under certain undefined conditions to fix the
price at which rice should be sold, without regard to grade or
quality, also to say whether a proclamation should be issued,
if so, when, and whether or not the law should be enforced,
how long it should be enforced, and when the law should be

suspended. The Legislature did not specify or define what

was "any cause," or what was "an extraordinary rise in the
price of rice, palay or corn," Neither did it specify or define
the conditions upon which the proclamation should be issued.
In the absence of the proclamation no crime was committed.
The alleged sale was made a crime, if at all, because the
Governor-General issued the proclamation. The act or
proclamation does not say anything about the different
grades or qualities of rice, and the defendant is charged with
the sale "of one ganta of rice at the price of eighty centavos
(P0.80) which is a price greater than that fixed by Executive
order No. 53."
We are clearly of the opinion and hold that Act No. 2868, in
so far as it undertakes to authorized the Governor-General in
his discretion to issue a proclamation, fixing the price of rice,
and to make the sale of rice in violation of the price of rice,
and to make the sale of rice in violation of the proclamation a
crime, is unconstitutional and void.
It may be urged that there was an extraordinary rise in the
price of rice and profiteering, which worked a severe hardship
on the poorer classes, and that an emergency existed, but
the question here presented is the constitutionality of a
particular portion of a statute, and none of such matters is an
argument for, or against, its constitutionality.
The Constitution is something solid, permanent an
substantial. Its stability protects the life, liberty and property
rights of the rich and the poor alike, and that protection
ought not to change with the wind or any emergency
condition. The fundamental question involved in this case is
the right of the people of the Philippine Islands to be and live
under a republican form of government. We make the broad
statement that no state or nation, living under republican
form of government, under the terms and conditions
specified in Act No. 2868, has ever enacted a law delegating
the power to any one, to fix the price at which rice should be
sold. That power can never be delegated under a republican
form of government.
In the fixing of the price at which the defendant should sell
his rice, the law was not dealing with government property. It
was dealing with private property and private rights, which
are sacred under the Constitution. If this law should be
sustained, upon the same principle and for the same reason,

the Legislature could authorize the Governor-General to fix

the price of every product or commodity in the Philippine
Islands, and empower him to make it a crime to sell any
product at any other or different price.
It may be said that this was a war measure, and that for such
reason the provision of the Constitution should be
suspended. But the Stubborn fact remains that at all times
the judicial power was in full force and effect, and that while
that power was in force and effect, such a provision of the
Constitution could not be, and was not, suspended even in
times of war. It may be claimed that during the war, the
United States Government undertook to, and did, fix the
price at which wheat and flour should be bought and sold,
and that is true. There, the United States had declared war,
and at the time was at war with other nations, and it was a
war measure, but it is also true that in doing so, and as a part
of the same act, the United States commandeered all the
wheat and flour, and took possession of it, either actual or
constructive, and the government itself became the owner of
the wheat and flour, and fixed the price to be paid for it. That
is not this case. Here the rice sold was the personal and
private property of the defendant, who sold it to one of his
customers. The government had not bought and did not
claim to own the rice, or have any interest in it, and at the
time of the alleged sale, it was the personal, private property
of the defendant. It may be that the law was passed in the
interest of the public, but the members of this court have
taken on solemn oath to uphold and defend the Constitution,
and it ought not to be construed to meet the changing winds
or emergency conditions. Again, we say that no state or
nation under a republican form of government ever enacted
a law authorizing any executive, under the conditions states,
to fix the price at which a price person would sell his own
rice, and make the broad statement that no decision of any
court, on principle or by analogy, will ever be found which
sustains the constitutionality of the particular portion of Act
No. 2868 here in question. By the terms of the Organic Act,
subject only to constitutional limitations, the power to
legislate and enact laws is vested exclusively in the
Legislative, which is elected by a direct vote of the people of
the Philippine Islands. As to the question here involved, the
authority of the Governor-General to fix the maximum price

at which palay, rice and corn may be sold in the manner

power in violation of the organic law.
This opinion is confined to the particular question here
involved, which is the right of the Governor-General, upon
the terms and conditions stated in the Act, to fix the price of
rice and make it a crime to sell it at a higher price, and which
holds that portions of the Act unconstitutional. It does not
decide or undertake to construe the constitutionality of any
of the remaining portions of the Act.
The judgment of the lower court is reversed, and the
defendant discharged. So ordered.
Araullo, C.J., Johnson, Street and Ostrand, JJ., concur.
Romualdez, J., concurs in the result.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 74457 March 20, 1987
RESTITUTO YNOT, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, THE STATION
COMMANDER, INTEGRATED NATIONAL POLICE,
BAROTAC NUEVO, ILOILO and THE REGIONAL
DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV,
ILOILO CITY, respondents.
Ramon A. Gonzales for petitioner.
CRUZ, J.:
The essence of due process is distilled in the immortal cry of
Themistocles to Alcibiades "Strike but hear me first!" It is
this cry that the petitioner in effect repeats here as he
challenges the constitutionality of Executive Order No. 626-A.
The said executive order reads in full as follows:
WHEREAS, the President has given orders prohibiting the
interprovincial movement of carabaos and the slaughtering
of carabaos not complying with the requirements of
Executive Order No. 626 particularly with respect to age;
WHEREAS, it has been observed that despite such orders the
violators still manage to circumvent the prohibition against

inter-provincial movement of carabaos by transporting

carabeef instead; and
WHEREAS, in order to achieve the purposes and objectives of
Executive Order No. 626 and the prohibition against
interprovincial movement of carabaos, it is necessary to
strengthen the said Executive Order and provide for the
disposition of the carabaos and carabeef subject of the
violation;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of
the Philippines, by virtue of the powers vested in me by the
Constitution, do hereby promulgate the following:
SECTION 1. Executive Order No. 626 is hereby amended such
that henceforth, no carabao regardless of age, sex, physical
condition or purpose and no carabeef shall be transported
from one province to another. The carabao or carabeef
transported in violation of this Executive Order as amended
shall be subject to confiscation and forfeiture by the
government, to be distributed to charitable institutions and
other similar institutions as the Chairman of the National
Meat Inspection Commission may ay see fit, in the case of
carabeef, and to deserving farmers through dispersal as the
Director of Animal Industry may see fit, in the case of
carabaos.
SECTION 2. This Executive Order shall take effect
immediately.
Done in the City of Manila, this 25th day of October, in the
year of Our Lord, nineteen hundred and eighty.
(SGD.) FERDINAND E. MARCOS
President
Republic of the Philippines
The petitioner had transported six carabaos in a pump boat
from Masbate to Iloilo on January 13, 1984, when they were
confiscated by the police station commander of Barotac
Nuevo, Iloilo, for violation of the above measure. 1 The
petitioner sued for recovery, and the Regional Trial Court of
Iloilo City issued a writ of replevin upon his filing of
a supersedeas bond of P12,000.00. After considering the
merits of the case, the court sustained the confiscation of the
carabaos and, since they could no longer be produced,
ordered the confiscation of the bond. The court also declined
to rule on the constitutionality of the executive order, as

raise by the petitioner, for lack of authority and also for its
presumed validity. 2
The petitioner appealed the decision to the Intermediate
Appellate Court,* 3 which upheld the trial court, ** and he has
now come before us in this petition for review on certiorari.
The thrust of his petition is that the executive order is
unconstitutional insofar as it authorizes outright confiscation
of the carabao or carabeef being transported across
provincial boundaries. His claim is that the penalty is invalid
because it is imposed without according the owner a right to
be heard before a competent and impartial court as
guaranteed by due process. He complains that the measure
should not have been presumed, and so sustained, as
constitutional. There is also a challenge to the improper
exercise of the legislative power by the former President
under Amendment No. 6 of the 1973 Constitution. 4
While also involving the same executive order, the case
of Pesigan v. Angeles 5 is not applicable here. The question
raised there was the necessity of the previous publication of
the measure in the Official Gazette before it could be
considered enforceable. We imposed the requirement then on
the basis of due process of law. In doing so, however, this
Court did not, as contended by the Solicitor General,
impliedly affirm the constitutionality of Executive Order No.
626-A. That is an entirely different matter.
This Court has declared that while lower courts should
observe a becoming modesty in examining constitutional
questions, they are nonetheless not prevented from resolving
the same whenever warranted, subject only to review by the
highest tribunal. 6 We have jurisdiction under the Constitution
to "review, revise, reverse, modify or affirm on appeal
or certiorari, as the law or rules of court may provide," final
judgments and orders of lower courts in, among others, all
cases involving the constitutionality of certain
measures. 7 This simply means that the resolution of such
cases may be made in the first instance by these lower
courts.
And while it is true that laws are presumed to be
constitutional, that presumption is not by any means
conclusive and in fact may be rebutted. Indeed, if there be a
clear showing of their invalidity, and of the need to declare
them so, then "will be the time to make the hammer fall, and

heavily," 8 to recall Justice Laurel's trenchant warning. Stated

otherwise, courts should not follow the path of least
resistance by simply presuming the constitutionality of a law
when it is questioned. On the contrary, they should probe the
issue more deeply, to relieve the abscess, paraphrasing
another distinguished jurist, 9 and so heal the wound or
excise the affliction.
Judicial power authorizes this; and when the exercise is
demanded, there should be no shirking of the task for fear of
retaliation, or loss of favor, or popular censure, or any other
similar inhibition unworthy of the bench, especially this
Court.
The challenged measure is denominated an executive order
but it is really presidential decree, promulgating a new rule
instead of merely implementing an existing law. It was issued
by President Marcos not for the purpose of taking care that
the laws were faithfully executed but in the exercise of his
legislative authority under Amendment No. 6. It was provided
thereunder that whenever in his judgment there existed a
grave emergency or a threat or imminence thereof or
whenever the legislature failed or was unable to act
adequately on any matter that in his judgment required
immediate action, he could, in order to meet the exigency,
issue decrees, orders or letters of instruction that were to
have the force and effect of law. As there is no showing of
any exigency to justify the exercise of that extraordinary
power then, the petitioner has reason, indeed, to question
the validity of the executive order. Nevertheless, since the
determination of the grounds was supposed to have been
made by the President "in his judgment, " a phrase that will
lead to protracted discussion not really necessary at this
time, we reserve resolution of this matter until a more
appropriate occasion. For the nonce, we confine ourselves to
the more fundamental question of due process.
It is part of the art of constitution-making that the provisions
of the charter be cast in precise and unmistakable language
to avoid controversies that might arise on their correct
interpretation. That is the Ideal. In the case of the due
process clause, however, this rule was deliberately not
followed and the wording was purposely kept ambiguous. In
fact, a proposal to delineate it more clearly was submitted in
the Constitutional Convention of 1934, but it was rejected by

Delegate Jose P. Laurel, Chairman of the Committee on the

Bill of Rights, who forcefully argued against it. He was
sustained by the body. 10
The due process clause was kept intentionally vague so it
would remain also conveniently resilient. This was felt
necessary because due process is not, like some provisions of
the fundamental law, an "iron rule" laying down an
implacable and immutable command for all seasons and all
persons. Flexibility must be the best virtue of the guaranty.
The very elasticity of the due process clause was meant to
make it adapt easily to every situation, enlarging or
constricting its protection as the changing times and
circumstances may require.
Aware of this, the courts have also hesitated to adopt their
own specific description of due process lest they confine
themselves in a legal straitjacket that will deprive them of
the elbow room they may need to vary the meaning of the
clause whenever indicated. Instead, they have preferred to
leave the import of the protection open-ended, as it were, to
be "gradually ascertained by the process of inclusion and
exclusion in the course of the decision of cases as they
arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme
Court, for example, would go no farther than to define due
process and in so doing sums it all up as nothing more
and nothing less than "the embodiment of the sporting Idea
of fair play." 12
When the barons of England extracted from their sovereign
liege the reluctant promise that that Crown would
thenceforth not proceed against the life liberty or property of
any of its subjects except by the lawful judgment of his peers
or the law of the land, they thereby won for themselves and
their progeny that splendid guaranty of fairness that is now
the hallmark of the free society. The solemn vow that King
John made at Runnymede in 1215 has since then resounded
through the ages, as a ringing reminder to all rulers,
benevolent or base, that every person, when confronted by
the stern visage of the law, is entitled to have his say in a fair
and open hearing of his cause.
The closed mind has no place in the open society. It is part of
the sporting Idea of fair play to hear "the other side" before
an opinion is formed or a decision is made by those who sit in
judgment. Obviously, one side is only one-half of the

question; the other half must also be considered if an

impartial verdict is to be reached based on an informed
appreciation of the issues in contention. It is indispensable
that the two sides complement each other, as unto the bow
the arrow, in leading to the correct ruling after examination
of the problem not from one or the other perspective only but
in its totality. A judgment based on less that this full
appraisal, on the pretext that a hearing is unnecessary or
useless, is tainted with the vice of bias or intolerance or
ignorance, or worst of all, in repressive regimes, the
insolence of power.
The minimum requirements of due process are notice and
hearing 13 which, generally speaking, may not be dispensed
with because they are intended as a safeguard against
official arbitrariness. It is a gratifying commentary on our
judicial system that the jurisprudence of this country is rich
with applications of this guaranty as proof of our fealty to the
rule of law and the ancient rudiments of fair play. We have
consistently declared that every person, faced by the
awesome power of the State, is entitled to "the law of the
land," which Daniel Webster described almost two hundred
years ago in the famous Dartmouth College Case, 14 as "the
law which hears before it condemns, which proceeds upon
inquiry and renders judgment only after trial." It has to be so
if the rights of every person are to be secured beyond the
reach of officials who, out of mistaken zeal or plain
arrogance, would degrade the due process clause into a worn
and empty catchword.
This is not to say that notice and hearing are imperative in
every case for, to be sure, there are a number of admitted
exceptions. The conclusive presumption, for example, bars
the admission of contrary evidence as long as such
presumption is based on human experience or there is a
rational connection between the fact proved and the fact
ultimately presumed therefrom. 15 There are instances when
the need for expeditions action will justify omission of these
requisites, as in the summary abatement of a nuisance per
se, like a mad dog on the loose, which may be killed on sight
because of the immediate danger it poses to the safety and
lives of the people. Pornographic materials, contaminated
meat and narcotic drugs are inherently pernicious and may
be summarily destroyed. The passport of a person sought for

a criminal offense may be cancelled without hearing, to

compel his return to the country he has fled. 16Filthy
restaurants may be summarily padlocked in the interest of
the public health and bawdy houses to protect the public
morals. 17 In such instances, previous judicial hearing may
be omitted without violation of due process in view of the
nature of the property involved or the urgency of the need to
protect the general welfare from a clear and present danger.
The protection of the general welfare is the particular
function of the police power which both restraints and is
restrained by due process. The police power is simply defined
as the power inherent in the State to regulate liberty and
property for the promotion of the general welfare. 18 By
reason of its function, it extends to all the great public needs
and is described as the most pervasive, the least limitable
and the most demanding of the three inherent powers of the
State, far outpacing taxation and eminent domain. The
individual, as a member of society, is hemmed in by the
police power, which affects him even before he is born and
follows him still after he is dead from the womb to beyond
the tomb in practically everything he does or owns. Its
reach is virtually limitless. It is a ubiquitous and often
unwelcome intrusion. Even so, as long as the activity or the
property has some relevance to the public welfare, its
regulation under the police power is not only proper but
necessary. And the justification is found in the venerable
Latin maxims, Salus populi est suprema lex and Sic utere tuo
ut alienum non laedas, which call for the subordination of
individual interests to the benefit of the greater number.
It is this power that is now invoked by the government to
justify Executive Order No. 626-A, amending the basic rule in
Executive Order No. 626, prohibiting the slaughter of
carabaos except under certain conditions. The original
measure was issued for the reason, as expressed in one of its
Whereases, that "present conditions demand that the
carabaos and the buffaloes be conserved for the benefit of
the small farmers who rely on them for energy needs." We
affirm at the outset the need for such a measure. In the face
of the worsening energy crisis and the increased dependence
of our farms on these traditional beasts of burden, the
government would have been remiss, indeed, if it had not
taken steps to protect and preserve them.

A similar prohibition was challenged in United States v.

Toribio, 19 where a law regulating the registration, branding
and slaughter of large cattle was claimed to be a deprivation
of property without due process of law. The defendant had
been convicted thereunder for having slaughtered his own
carabao without the required permit, and he appealed to the
Supreme Court. The conviction was affirmed. The law was
sustained as a valid police measure to prevent the
indiscriminate killing of carabaos, which were then badly
needed by farmers. An epidemic had stricken many of these
animals and the reduction of their number had resulted in an
acute decline in agricultural output, which in turn had caused
an incipient famine. Furthermore, because of the scarcity of
the animals and the consequent increase in their price,
cattle-rustling had spread alarmingly, necessitating more
effective measures for the registration and branding of these
animals. The Court held that the questioned statute was a
valid exercise of the police power and declared in part as
follows:
To justify the State in thus interposing its authority in behalf
of the public, it must appear, first, that the interests of the
public generally, as distinguished from those of a particular
class, require such interference; and second, that the means
are reasonably necessary for the accomplishment of the
purpose, and not unduly oppressive upon individuals. ...
From what has been said, we think it is clear that the
enactment of the provisions of the statute under
consideration was required by "the interests of the public
generally, as distinguished from those of a particular class"
and that the prohibition of the slaughter of carabaos for
human consumption, so long as these animals are fit for
agricultural work or draft purposes was a "reasonably
necessary" limitation on private ownership, to protect the
community from the loss of the services of such animals by
their slaughter by improvident owners, tempted either by
greed of momentary gain, or by a desire to enjoy the luxury
of animal food, even when by so doing the productive power
of the community may be measurably and dangerously
affected.
In the light of the tests mentioned above, we hold with the
Toribio Case that the carabao, as the poor man's tractor, so
to speak, has a direct relevance to the public welfare and so

is a lawful subject of Executive Order No. 626. The method

chosen in the basic measure is also reasonably necessary for
the purpose sought to be achieved and not unduly
oppressive upon individuals, again following the above-cited
doctrine. There is no doubt that by banning the slaughter of
these animals except where they are at least seven years old
if male and eleven years old if female upon issuance of the
necessary permit, the executive order will be conserving
those still fit for farm work or breeding and preventing their
improvident depletion.
But while conceding that the amendatory measure has the
same lawful subject as the original executive order, we
cannot say with equal certainty that it complies with the
second requirement, viz., that there be a lawful method. We
note that to strengthen the original measure, Executive Order
No. 626-A imposes an absolute ban not on theslaughter of
the carabaos but on their movement, providing that "no
carabao regardless of age, sex, physical condition or purpose
(sic) and no carabeef shall be transported from one province
to another." The object of the prohibition escapes us. The
reasonable connection between the means employed and the
purpose sought to be achieved by the questioned measure is
missing
We do not see how the prohibition of the inter-provincial
transport of carabaos can prevent their indiscriminate
slaughter, considering that they can be killed anywhere, with
no less difficulty in one province than in another. Obviously,
retaining the carabaos in one province will not prevent their
slaughter there, any more than moving them to another
province will make it easier to kill them there. As for the
carabeef, the prohibition is made to apply to it as otherwise,
so says executive order, it could be easily circumvented by
simply killing the animal. Perhaps so. However, if the
movement of the live animals for the purpose of preventing
their slaughter cannot be prohibited, it should follow that
there is no reason either to prohibit their transfer as, not to
be flippant dead meat.
Even if a reasonable relation between the means and the end
were to be assumed, we would still have to reckon with the
sanction that the measure applies for violation of the
prohibition. The penalty is outright confiscation of the
carabao or carabeef being transported, to be meted out by

the executive authorities, usually the police only. In the

Toribio Case, the statute was sustained because the penalty
prescribed was fine and imprisonment, to be imposed by the
court after trial and conviction of the accused. Under the
challenged measure, significantly, no such trial is prescribed,
and the property being transported is immediately
impounded by the police and declared, by the measure itself,
as forfeited to the government.
In the instant case, the carabaos were arbitrarily confiscated
by the police station commander, were returned to the
petitioner only after he had filed a complaint for recovery and
given a supersedeas bond of P12,000.00, which was ordered
confiscated upon his failure to produce the carabaos when
ordered by the trial court. The executive order defined the
prohibition, convicted the petitioner and immediately
imposed punishment, which was carried out forthright. The
measure struck at once and pounced upon the petitioner
without giving him a chance to be heard, thus denying him
the centuries-old guaranty of elementary fair play.
It has already been remarked that there are occasions when
notice and hearing may be validly dispensed with
notwithstanding the usual requirement for these minimum
guarantees of due process. It is also conceded that summary
action may be validly taken in administrative proceedings as
procedural due process is not necessarily judicial only. 20 In
the exceptional cases accepted, however. there is a
justification for the omission of the right to a previous
hearing, to wit, the immediacy of the problem sought to be
corrected and the urgency of the need to correct it.
In the case before us, there was no such pressure of time or
action calling for the petitioner's peremptory treatment. The
properties involved were not even inimical per se as to
require their instant destruction. There certainly was no
reason why the offense prohibited by the executive order
should not have been proved first in a court of justice, with
the accused being accorded all the rights safeguarded to him
under the Constitution. Considering that, as we held
in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in
nature, the violation thereof should have been pronounced
not by the police only but by a court of justice, which alone
would have had the authority to impose the prescribed
penalty, and only after trial and conviction of the accused.

We also mark, on top of all this, the questionable manner of

the disposition of the confiscated property as prescribed in
the questioned executive order. It is there authorized that the
seized property shall "be distributed to charitable institutions
and other similar institutions as the Chairman of the National
Meat Inspection Commissionmay see fit, in the case of
carabeef, and to deserving farmers through dispersal as the
Director of Animal Industrymay see fit, in the case of
carabaos." (Emphasis supplied.) The phrase "may see fit" is
an extremely generous and dangerous condition, if condition
it is. It is laden with perilous opportunities for partiality and
abuse, and even corruption. One searches in vain for the
usual standard and the reasonable guidelines, or better still,
the limitations that the said officers must observe when they
make their distribution. There is none. Their options are
apparently boundless. Who shall be the fortunate
beneficiaries of their generosity and by what criteria shall
they be chosen? Only the officers named can supply the
answer, they and they alone may choose the grantee as they
see fit, and in their own exclusive discretion. Definitely, there
is here a "roving commission," a wide and sweeping authority
that is not "canalized within banks that keep it from
overflowing," in short, a clearly profligate and therefore
invalid delegation of legislative powers.
To sum up then, we find that the challenged measure is an
invalid exercise of the police power because the method
employed to conserve the carabaos is not reasonably
necessary to the purpose of the law and, worse, is unduly
oppressive. Due process is violated because the owner of the
property confiscated is denied the right to be heard in his
defense and is immediately condemned and punished. The
conferment on the administrative authorities of the power to
adjudge the guilt of the supposed offender is a clear
encroachment on judicial functions and militates against the
doctrine of separation of powers. There is, finally, also an
invalid delegation of legislative powers to the officers
mentioned therein who are granted unlimited discretion in
the distribution of the properties arbitrarily taken. For these
reasons, we hereby declare Executive Order No. 626-A
unconstitutional.
We agree with the respondent court, however, that the police
station commander who confiscated the petitioner's carabaos

is not liable in damages for enforcing the executive order in

accordance with its mandate. The law was at that time
presumptively valid, and it was his obligation, as a member
of the police, to enforce it. It would have been impertinent of
him, being a mere subordinate of the President, to declare
the executive order unconstitutional and, on his own
responsibility alone, refuse to execute it. Even the trial court,
in fact, and the Court of Appeals itself did not feel they had
the competence, for all their superior authority, to question
the order we now annul.
The Court notes that if the petitioner had not seen fit to
assert and protect his rights as he saw them, this case would
never have reached us and the taking of his property under
the challenged measure would have become
afait accompli despite its invalidity. We commend him for his
spirit. Without the present challenge, the matter would have
ended in that pump boat in Masbate and another violation of
the Constitution, for all its obviousness, would have been
perpetrated, allowed without protest, and soon forgotten in
the limbo of relinquished rights.
The strength of democracy lies not in the rights it guarantees
but in the courage of the people to invoke them whenever
they are ignored or violated. Rights are but weapons on the
wall if, like expensive tapestry, all they do is embellish and
impress. Rights, as weapons, must be a promise of
protection. They become truly meaningful, and fulfill the role
assigned to them in the free society, if they are kept bright
and sharp with use by those who are not afraid to assert
them.
WHEREFORE, Executive Order No. 626-A is hereby declared
unconstitutional. Except as affirmed above, the decision of
the Court of Appeals is reversed. The supersedeas bond is
cancelled and the amount thereof is ordered restored to the
petitioner. No costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras,
Gancayco, Padilla Bidin Sarmiento and Cortes, JJ., concur.
Melencio-Herrera and Feliciano, JJ., are on leave.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-57883 March 12, 1982
GUALBERTO J. DE LA LLANA Presiding Judge, Branch II
of the City Court of Olongapo, ESTANISLAO L. CESA,
JR., FIDELA Y. VARGAS, BENJAMIN C. ESCOLANGO,
JUANITO C. ATIENZA, MANUEL REYES ROSAPAPAN, JR.,
VIRGILIO E. ACIERTO, and PORFIRIO AGUILLON AGUILA,
petitioners,
vs.
MANUEL ALBA, Minister of Budget, FRANCISCO
TANTUICO, Chairman, Commission on Audit, and
RICARDO PUNO, Minister of Justice, Respondents.
FERNANDO, C.J.:
This Court, pursuant to its grave responsibility of passing
upon the validity of any executive or legislative act in an

appropriate cases, has to resolve the crucial issue of the

constitutionality of Batas Pambansa Blg. 129, entitled "An act
reorganizing the Judiciary, Appropriating Funds Therefor and
for Other Purposes." The task of judicial review, aptly
characterized as exacting and delicate, is never more so than
when a conceded legislative power, that of judicial
reorganization, 1 may possibly collide with the time-honored
principle of the independence of the judiciary 2as protected
and safeguarded by this constitutional provision: "The
Members of the Supreme Court and judges of inferior courts
shall hold office during good behavior until they reach the
age of seventy years or become incapacitated to discharge
the duties of their office. The Supreme Court shall have the
power to discipline judges of inferior courts and, by a vote of
at least eight Members, order their dismissal." 3 For the
assailed legislation mandates that Justices and judges of
inferior courts from the Court of Appeals to municipal circuit
courts, except the occupants of the Sandiganbayan and the
Court of Tax Appeals, unless appointed to the inferior courts
established by such Act, would be considered separated from
the judiciary. It is the termination of their incumbency that for
petitioners justifies a suit of this character, it being alleged
that thereby the security of tenure provision of the
Constitution has been ignored and disregarded,
That is the fundamental issue raised in this proceeding,
erroneously entitled Petition for Declaratory Relief and/or for
Prohibition 4 considered by this Court as an action for
prohibited petition, seeking to enjoin respondent Minister of
the Budget, respondent Chairman of the Commission on
Audit, and respondent Minister of Justice from taking any
action implementing Batas Pambansa Blg. 129.
Petitioners 5 sought to bolster their claim by imputing lack of
good faith in its enactment and characterizing as an undue
delegation of legislative power to the President his authority
to fix the compensation and allowances of the Justices and
judges thereafter appointed and the determination of the
date when the reorganization shall be deemed completed. In
the very comprehensive and scholarly Answer of Solicitor
General Estelito P. Mendoza, 6 it was pointed out that there is
no valid justification for the attack on the constitutionality of
this statute, it being a legitimate exercise of the power
vested in the Batasang Pambansa to reorganize the judiciary,

the allegations of absence of good faith as well as the attack

on the independence of the judiciary being unwarranted and
devoid of any support in law. A Supplemental Answer was
likewise filed on October 8, 1981, followed by a Reply of
petitioners on October 13. After the hearing in the morning
and afternoon of October 15, in which not only petitioners
and respondents were heard through counsel but also
the amici curiae, 7 and thereafter submission of the minutes
of the proceeding on the debate on Batas Pambansa Blg.
129, this petition was deemed submitted for decision.
The importance of the crucial question raised called for
intensive and rigorous study of all the legal aspects of the
case. After such exhaustive deliberation in several sessions,
the exchange of views being supplemented by memoranda
from the members of the Court, it is our opinion and so hold
that Batas Pambansa Blg. 129 is not unconstitutional.
1. The argument as to the lack of standing of petitioners is
easily resolved. As far as Judge de la Llana is concerned, he
certainly falls within the principle set forth in Justice Laurel's
opinion in People v. Vera. 8 Thus: "The unchallenged rule is
that the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that
he has sustained, or will sustain, direct injury as a result of its
enforcement." 9 The other petitioners as members of the bar
and officers of the court cannot be considered as devoid of
"any personal and substantial interest" on the matter. There
is relevance to this excerpt from a separate opinion
in Aquino, Jr. v. Commission on Elections: 10 "Then there is the
attack on the standing of petitioners, as vindicating at most
what they consider a public right and not protecting their
rights as individuals. This is to conjure the specter of the
public right dogma as an inhibition to parties intent on
keeping public officials staying on the path of
constitutionalism. As was so well put by Jaffe: 'The protection
of private rights is an essential constituent of public interest
and, conversely, without a well-ordered state there could be
no enforcement of private rights. Private and public interests
are, both in substantive and procedural sense, aspects of the
totality of the legal order.' Moreover, petitioners have
convincingly shown that in their capacity as taxpayers, their
standing to sue has been amply demonstrated. There would
be a retreat from the liberal approach followed in Pascual v.

Secretary of Public Works,foreshadowed by the very decision

of People v. Vera where the doctrine was first fully discussed,
if we act differently now. I do not think we are prepared to
take that step. Respondents, however, would hark back to
the American Supreme Court doctrine in Mellon v.
Frothingham with their claim that what petitioners possess 'is
an interest which is shared in common by other people and is
comparatively so minute and indeterminate as to afford any
basis and assurance that the judicial process can act on it.'
That is to speak in the language of a bygone era even in the
United States. For as Chief Justice Warren clearly pointed out
in the later case of Flast v. Cohen, the barrier thus set up if
not breached has definitely been lowered." 11
2. The imputation of arbitrariness to the legislative body in
the enactment of Batas Pambansa Blg. 129 to demonstrate
lack of good faith does manifest violence to the facts.
Petitioners should have exercised greater care in informing
themselves as to its antecedents. They had laid themselves
open to the accusation of reckless disregard for the truth, On
August 7, 1980, a Presidential Committee on Judicial
Reorganization was organized.12 This Executive Order was
later amended by Executive Order No. 619-A., dated
September 5 of that year. It clearly specified the task
assigned to it: "1. The Committee shall formulate plans on
the reorganization of the Judiciary which shall be submitted
within seventy (70) days from August 7, 1980 to provide the
President sufficient options for the reorganization of the
entire Judiciary which shall embrace all lower courts,
including the Court of Appeals, the Courts of First Instance,
the City and Municipal Courts, and all Special Courts, but
excluding the Sandigan Bayan." 13 On October 17, 1980, a
Report was submitted by such Committee on Judicial
Reorganization. It began with this paragraph: "The
Committee on Judicial Reorganization has the honor to
submit the following Report. It expresses at the outset its
appreciation for the opportunity accorded it to study ways
and means for what today is a basic and urgent need,
nothing less than the restructuring of the judicial system.
There are problems, both grave and pressing, that call for
remedial measures. The felt necessities of the time, to
borrow a phrase from Holmes, admit of no delay, for if no
step be taken and at the earliest opportunity, it is not too

much to say that the people's faith in the administration of

justice could be shaken. It is imperative that there be a
greater efficiency in the disposition of cases and that
litigants, especially those of modest means much more so,
the poorest and the humblest can vindicate their rights in
an expeditious and inexpensive manner. The rectitude and
the fairness in the way the courts operate must be manifest
to all members of the community and particularly to those
whose interests are affected by the exercise of their
functions. It is to that task that the Committee addresses
itself and hopes that the plans submitted could be a starting
point for an institutional reform in the Philippine judiciary. The
experience of the Supreme Court, which since 1973 has been
empowered to supervise inferior courts, from the Court of
Appeals to the municipal courts, has proven that reliance on
improved court management as well as training of judges for
more efficient administration does not suffice. I hence, to
repeat, there is need for a major reform in the judicial so
stem it is worth noting that it will be the first of its kind since
the Judiciary Act became effective on June 16, 1901." 14 I t
went to say: "I t does not admit of doubt that the last two
decades of this century are likely to be attended with
problems of even greater complexity and delicacy. New social
interests are pressing for recognition in the courts. Groups
long inarticulate, primarily those economically
underprivileged, have found legal spokesmen and are
asserting grievances previously ignored. Fortunately, the
judicially has not proved inattentive. Its task has thus
become even more formidable. For so much grist is added to
the mills of justice. Moreover, they are likewise to be quite
novel. The need for an innovative approach is thus apparent.
The national leadership, as is well-known, has been
constantly on the search for solutions that will prove to be
both acceptable and satisfactory. Only thus may there be
continued national progress." 15 After which comes: "To be
less abstract, the thrust is on development. That has been
repeatedly stressed and rightly so. All efforts are geared to
its realization. Nor, unlike in the past, was it to b "considered
as simply the movement towards economic progress and
growth measured in terms of sustained increases in per
capita income and Gross National Product (GNP). 16 For the
New Society, its implication goes further than economic

advance, extending to "the sharing, or more appropriately,

the democratization of social and economic opportunities,
the substantiation of the true meaning of social
justice." 17 This process of modernization and change
compels the government to extend its field of activity and its
scope of operations. The efforts towards reducing the gap
between the wealthy and the poor elements in the nation call
for more regulatory legislation. That way the social justice
and protection to labor mandates of the Constitution could be
effectively implemented." 18 There is likelihood then "that
some measures deemed inimical by interests adversely
affected would be challenged in court on grounds of validity.
Even if the question does not go that far, suits may be filed
concerning their interpretation and application. ... There
could be pleas for injunction or restraining orders. Lack of
success of such moves would not, even so, result in their
prompt final disposition. Thus delay in the execution of the
policies embodied in law could thus be reasonably expected.
That is not conducive to progress in development." 19 For, as
mentioned in such Report, equally of vital concern is the
problem of clogged dockets, which "as is well known, is one
of the utmost gravity. Notwithstanding the most determined
efforts exerted by the Supreme Court, through the leadership
of both retired Chief Justice Querube Makalintal and the late
Chief Justice Fred Ruiz Castro, from the time supervision of
the courts was vested in it under the 1973 Constitution, the
trend towards more and more cases has continued." 20 It is
understandable why. With the accelerated economic
development, the growth of population, the increasing
urbanization, and other similar factors, the judiciary is called
upon much oftener to resolve controversies. Thus confronted
with what appears to be a crisis situation that calls for a
remedy, the Batasang Pambansa had no choice. It had to act,
before the ailment became even worse. Time was of the
essence, and yet it did not hesitate to be duly mindful, as it
ought to be, of the extent of its coverage before enacting
Batas Pambansa Blg. 129.
3. There is no denying, therefore, the need for "institutional
reforms," characterized in the Report as "both pressing and
urgent." 21 It is worth noting, likewise, as therein pointed out,
that a major reorganization of such scope, if it were to take
place, would be the most thorough after four

generations. 22 The reference was to the basic Judiciary Act

generations . enacted in June of 1901, 23 amended in a
significant way, only twice previous to the Commonwealth.
There was, of course, the creation of the Court of Appeals in
1935, originally composed "of a Presiding Judge and ten
appellate Judges, who shall be appointed by the President of
the Philippines, with the consent of the Commission on
Appointments of the National Assembly, 24 It could "sit en
banc, but it may sit in two divisions, one of six and another of
five Judges, to transact business, and the two divisions may
sit at the same time." 25 Two years after the establishment of
independence of the Republic of the Philippines, the Judiciary
Act of 1948 26 was passed. It continued the existing system of
regular inferior courts, namely, the Court of Appeals, Courts
of First Instance, 27 the Municipal Courts, at present the City
Courts, and the Justice of the Peace Courts, now the
Municipal Circuit Courts and Municipal Courts. The
membership of the Court of Appeals has been continuously
increased. 28 Under a 1978 Presidential Decree, there would
be forty-five members, a Presiding Justice and forty-four
Associate Justices, with fifteen divisions. 29 Special courts
were likewise created. The first was the Court of Tax Appeals
in 1954, 30 next came the Court of Agrarian Relations in
1955, 31 and then in the same year a Court of the Juvenile
and Domestic Relations for Manila in 1955, 32 subsequently
followed by the creation of two other such courts for Iloilo
and Quezon City in 1966. 33 In 1967, Circuit Criminal Courts
were established, with the Judges having the same
qualifications, rank, compensation, and privileges as judges
of Courts of First Instance. 34
4. After the submission of such Report, Cabinet Bill No. 42,
which later became the basis of Batas Pambansa Blg. 129,
was introduced. After setting forth the background as above
narrated, its Explanatory Note continues: "Pursuant to the
President's instructions, this proposed legislation has been
drafted in accordance with the guidelines of that report with
particular attention to certain objectives of the
reorganization, to wit, the attainment of more efficiency in
disposal of cases, a reallocation of jurisdiction, and a revision
of procedures which do not tend to the proper meeting out of
justice. In consultation with, and upon a consensus of, the
governmental and parliamentary leadership, however, it was

felt that some options set forth in the Report be not availed
of. Instead of the proposal to confine the jurisdiction of the
intermediate appellate court merely to appellate
adjudication, the preference has been opted to increase
rather than diminish its jurisdiction in order to enable it to
effectively assist the Supreme Court. This preference has
been translated into one of the innovations in the proposed
Bill." 35 In accordance with the parliamentary procedure, the
Bill was sponsored by the Chairman of the Committee on
Justice, Human Rights and Good Government to which it was
referred. Thereafter, Committee Report No. 225 was
submitted by such Committee to the Batasang Pambansa
recommending the approval with some amendments. In the
sponsorship speech of Minister Ricardo C. Puno, there was
reference to the Presidential Committee on Judicial
Reorganization. Thus: "On October 17, 1980, the Presidential
Committee on Judicial Reorganization submitted its report to
the President which contained the 'Proposed Guidelines for
Judicial Reorganization.' Cabinet Bill No. 42 was drafted
substantially in accordance with the options presented by
these guidelines. Some options set forth in the aforesaid
report were not availed of upon consultation with and upon
consensus of the government and parliamentary leadership.
Moreover, some amendments to the bill were adopted by the
Committee on Justice, Human Rights and Good Government,
to which The bill was referred, following the public hearings
on the bill held in December of 1980. The hearings consisted
of dialogues with the distinguished members of the bench
and the bar who had submitted written proposals,
suggestions, and position papers on the bill upon the
invitation of the Committee on Justice, Human Rights and
Good Government." 36 Stress was laid by the sponsor that the
enactment of such Cabinet Bill would, firstly, result in the
attainment of more efficiency in the disposal of cases.
Secondly, the improvement in the quality of justice dispensed
by the courts is expected as a necessary consequence of the
easing of the court's dockets. Thirdly, the structural changes
introduced in the bill, together with the reallocation of
jurisdiction and the revision of the rules of procedure, are
designated to suit the court system to the exigencies of the
present day Philippine society, and hopefully, of the
foreseeable future." 37 it may be observed that the volume

containing the minutes of the proceedings of the Batasang

Pambansa show that 590 pages were devoted to its
discussion. It is quite obvious that it took considerable time
and effort as well as exhaustive study before the act was
signed by the President on August 14, 1981. With such a
background, it becomes quite manifest how lacking in factual
basis is the allegation that its enactment is tainted by the
vice of arbitrariness. What appears undoubted and
undeniable is the good faith that characterized its enactment
from its inception to the affixing of the Presidential signature.
5. Nothing is better settled in our law than that the abolition
of an office within the competence of a legitimate body if
done in good faith suffers from no infirmity. The ponencia of
Justice J.B.L. Reyes in Cruz v. Primicias, Jr. 38reiterated such a
doctrine: "We find this point urged by respondents, to be
without merit. No removal or separation of petitioners from
the service is here involved, but the validity of the abolition
of their offices. This is a legal issue that is for the Courts to
decide. It is well-known rule also that valid abolition of offices
is neither removal nor separation of the incumbents. ... And,
of course, if the abolition is void, the incumbent is deemed
never to have ceased to hold office. The preliminary question
laid at rest, we pass to the merits of the case. As well-settled
as the rule that the abolition of an office does not amount to
an illegal removal of its incumbent is the principle that, in
order to be valid, the abolition must be made in good
faith." 39 The above excerpt was quoted with approval
in Bendanillo, Sr. v. Provincial Governor, 40 two earlier cases
enunciating a similar doctrine having preceded it. 41 As with
the offices in the other branches of the government, so it is
with the judiciary. The test remains whether the abolition is in
good faith. As that element is conspicuously present in the
enactment of Batas Pambansa Blg. 129, then the lack of
merit of this petition becomes even more apparent. The
concurring opinion of Justice Laurel in Zandueta v. De la
Costa 42 cannot be any clearer. This is a quo warranto
proceeding filed by petitioner, claiming that he, and not
respondent, was entitled to he office of judge of the Fifth
Branch of the Court of First Instance of Manila. There was a
Judicial Reorganization Act in 1936, 43 a year after the
inauguration of the Commonwealth, amending the
Administrative Code to organize courts of original jurisdiction

known as the Courts of First Instance Prior to such statute,

petitioner was the incumbent of such branch. Thereafter, he
received an ad interim appointment, this time to the Fourth
Judicial District, under the new legislation. Unfortunately for
him, the Commission on Appointments of then National
Assembly disapproved the same, with respondent being
appointed in his place. He contested the validity of the Act
insofar as it resulted in his being forced to vacate his position
This Court did not rule squarely on the matter. His petition
was dismissed on the ground of estoppel. Nonetheless, the
separate concurrence of Justice Laurel in the result reached,
to repeat, reaffirms in no uncertain terms the standard of
good faith to preclude any doubt as to the abolition of an
inferior court, with due recognition of the security of tenure
guarantee. Thus: " I am of the opinion that Commonwealth
Act No. 145 in so far as it reorganizes, among other judicial
districts, the Ninth Judicial District, and establishes an
entirely new district comprising Manila and the provinces of
Rizal and Palawan, is valid and constitutional. This conclusion
flows from the fundamental proposition that the legislature
may abolish courts inferior to the Supreme Court and
therefore may reorganize them territorially or otherwise
thereby necessitating new appointments and commissions.
Section 2, Article VIII of the Constitution vests in the National
Assembly the power to define, prescribe and apportion the
jurisdiction of the various courts, subject to certain
limitations in the case of the Supreme Court. It is admitted
that section 9 of the same article of the Constitution provides
for the security of tenure of all the judges. The principles
embodied in these two sections of the same article of the
Constitution must be coordinated and harmonized. A mere
enunciation of a principle will not decide actual cases and
controversies of every sort. (Justice Holmes in Lochner vs.
New York, 198 U.S., 45; 49 Law. ed; 937)" 44 justice Laurel
continued: "I am not insensible to the argument that the
National Assembly may abuse its power and move
deliberately to defeat the constitutional provision
guaranteeing security of tenure to all judges, But, is this the
case? One need not share the view of Story, Miller and Tucker
on the one hand, or the opinion of Cooley, Watson and
Baldwin on the other, to realize that the application of a legal
or constitutional principle is necessarily factual and

circumstantial and that fixity of principle is the rigidity of the

dead and the unprogressive. I do say, and emphatically,
however, that cases may arise where the violation of the
constitutional provision regarding security of tenure is
palpable and plain, and that legislative power of
reorganization may be sought to cloak an unconstitutional
and evil purpose. When a case of that kind arises, it will be
the time to make the hammer fall and heavily. But not until
then. I am satisfied that, as to the particular point here
discussed, the purpose was the fulfillment of what was
considered a great public need by the legislative department
and that Commonwealth Act No. 145 was not enacted
purposely to affect adversely the tenure of judges or of any
particular judge. Under these circumstances, I am for
sustaining the power of the legislative department under the
Constitution. To be sure, there was greater necessity for
reorganization consequent upon the establishment of the
new government than at the time Acts Nos. 2347 and 4007
were approved by the defunct Philippine Legislature, and
although in the case of these two Acts there was an express
provision providing for the vacation by the judges of their
offices whereas in the case of Commonwealth Act No. 145
doubt is engendered by its silence, this doubt should be
resolved in favor of the valid exercise of the legislative
power." 45
6. A few more words on the question of abolition. In the
above-cited opinion of Justice Laurel in Zandueta, reference
was made to Act No. 2347 46 on the reorganization of the
Courts of First Instance and to Act No. 4007 47 on the
reorganization of all branches of the government, including
the courts of first instance. In both of them, the then Courts
of First Instance were replaced by new courts with the same
appellation. As Justice Laurel pointed out, there was no
question as to the fact of abolition. He was equally
categorical as to Commonwealth Act No. 145, where also the
system of the courts of first instance was provided for
expressly. It was pointed out by Justice Laurel that the mere
creation of an entirely new district of the same court is valid
and constitutional. such conclusion flowing "from the
fundamental proposition that the legislature may abolish
courts inferior to the Supreme Court and therefore may
reorganize them territorially or otherwise thereby

necessitating new appointments and commissions." 48 The

challenged statute creates an intermediate appellate
court, 49 regional trial courts, 50 metropolitan trial courts of
the national capital region, 51 and other metropolitan trial
courts, 52 municipal trial courts in cities, 53 as well as in
municipalities, 54 and municipal circuit trial courts. 55 There is
even less reason then to doubt the fact that existing inferior
courts were abolished. For the Batasang Pambansa, the
establishment of such new inferior courts was the
appropriate response to the grave and urgent problems that
pressed for solution. Certainly, there could be differences of
opinion as to the appropriate remedy. The choice, however,
was for the Batasan to make, not for this Court, which deals
only with the question of power. It bears mentioning that
in Brillo v. Eage56 this Court, in an unanimous opinion
penned by the late Justice Diokno, citing Zandueta v. De la
Costa, ruled: "La segunda question que el recurrrido plantea
es que la Carta de Tacloban ha abolido el puesto. Si
efectivamente ha sido abolido el cargo, entonces ha quedado
extinguido el derecho de recurente a ocuparlo y a cobrar el
salario correspodiente.Mc Culley vs. State, 46 LRA, 567. El
derecho de un juez de desempenarlo hasta los 70 aos de
edad o se incapacite no priva al Congreso de su facultad de
abolir, fusionar o reorganizar juzgados no
constitucionales." 57 Nonetheless, such well-established
principle was not held applicable to the situation there
obtaining, the Charter of Tacloban City creating a city court in
place of the former justice of the peace court. Thus: "Pero en
el caso de autos el Juzgado de Tacloban no ha sido abolido.
Solo se le ha cambiado el nombre con el cambio de forma del
gobierno local." 58 The present case is anything but that.
Petitioners did not and could not prove that the challenged
statute was not within the bounds of legislative authority.
7. This opinion then could very well stop at this point. The
implementation of Batas Pambansa Blg. 129, concededly a
task incumbent on the Executive, may give rise, however, to
questions affecting a judiciary that should be kept
independent. The all-embracing scope of the assailed
legislation as far as all inferior courts from the Courts of
Appeals to municipal courts are concerned, with the
exception solely of the Sandiganbayan and the Court of Tax
Appeals 59 gave rise, and understandably so, to misgivings as

to its effect on such cherished Ideal. The first paragraph of

the section on the transitory provision reads: "The provisions
of this Act shall be immediately carried out in accordance
with an Executive Order to be issued by the President. The
Court of Appeals, the Courts of First Instance, the Circuit
Criminal Courts, the Juvenile and Domestic Relations Courts,
the Courts of Agrarian Relations, the City Courts, the
Municipal Courts, and the Municipal Circuit Courts shall
continue to function as presently constituted and organized,
until the completion of the reorganization provided in this Act
as declared by the President. Upon such declaration, the said
courts shall be deemed automatically abolished and the
incumbents thereof shall cease to hold the office." 60 There is
all the more reason then why this Court has no choice but to
inquire further into the allegation by petitioners that the
security of tenure provision, an assurance of a judiciary free
from extraneous influences, is thereby reduced to a barren
form of words. The amended Constitution adheres even more
clearly to the long-established tradition of a strong executive
that antedated the 1935 Charter. As noted in the work of
former Vice-Governor Hayden, a noted political scientist,
President Claro M. Recto of the 1934 Convention, in his
closing address, in stressing such a concept, categorically
spoke of providing "an executive power which, subject to the
fiscalization of the Assembly, and of public opinion, will not
only know how to govern, but will actually govern, with a firm
and steady hand, unembarrassed by vexatious interferences
by other departments, or by unholy alliances with this and
that social group." 61 The above excerpt was cited with
approval by Justice Laurel in Planas v. Gil.62 Moreover, under
the 1981 Amendments, it may be affirmed that once again
the principle of separation of powers, to quote from the same
jurist as ponente in Angara v.
Electoral Commission, 63 "obtains not through express
provision but by actual division." 64 The president, under
Article VII, shall be the head of state and chief executive of
the Republic of the Philippines." 65 Moreover, it is equally
therein expressly provided that all the powers he possessed
under the 1935 Constitution are once again vested in him
unless the Batasang Pambansa provides otherwise." 66 Article
VII of the 1935 Constitution speaks categorically: "The
Executive power shall be vested in a President of the

Philippines." 67 As originally framed, the 1973 Constitution

created the position of President as the "symbolic head of
state." 68 In addition, there was a provision for a Prime
Minister as the head of government exercising the executive
power with the assistance of the Cabinet69 Clearly, a modified
parliamentary system was established. In the light of the
1981 amendments though, this Court in Free Telephone
Workers Union v. Minister of Labor 70 could state: "The
adoption of certain aspects of a parliamentary system in the
amended Constitution does not alter its essentially
presidential character." 71 The retention, however, of the
position of the Prime Minister with the Cabinet, a majority of
the members of which shall come from the regional
representatives of the Batasang Pambansa and the creation
of an Executive Committee composed of the Prime Minister
as Chairman and not more than fourteen other members at
least half of whom shall be members of the Batasang
Pambansa, clearly indicate the evolving nature of the system
of government that is now operative. 72 What is equally
apparent is that the strongest ties bind the executive and
legislative departments. It is likewise undeniable that the
Batasang Pambansa retains its full authority to enact
whatever legislation may be necessary to carry out national
policy as usually formulated in a caucus of the majority party.
It is understandable then why in Fortun v. Labang 73 it was
stressed that with the provision transferring to the Supreme
Court administrative supervision over the Judiciary, there is a
greater need "to preserve unimpaired the independence of
the judiciary, especially so at present, where to all intents
and purposes, there is a fusion between the executive and
the legislative branches." 74
8. To be more specific, petitioners contend that the abolition
of the existing inferior courts collides with the security of
tenure enjoyed by incumbent Justices and judges under
Article X, Section 7 of the Constitution. There was a similar
provision in the 1935 Constitution. It did not, however, go as
far as conferring on this Tribunal the power to supervise
administratively inferior courts. 75 Moreover, this Court is em
powered "to discipline judges of inferior courts and, by a vote
of at least eight members, order their dismissal." 76 Thus it
possesses the competence to remove judges. Under the
Judiciary Act, it was the President who was vested with such

power. 77 Removal is, of course, to be distinguished from

termination by virtue of the abolition of the office. There can
be no tenure to a non-existent office. After the abolition,
there is in law no occupant. In case of removal, there is an
office with an occupant who would thereby lose his position.
It is in that sense that from the standpoint of strict law, the
question of any impairment of security of tenure does not
arise. Nonetheless, for the incumbents of inferior courts
abolished, the effect is one of separation. As to its effect, no
distinction exists between removal and the abolition of the
office. Realistically, it is devoid of significance. He ceases to
be a member of the judiciary. In the implementation of the
assailed legislation, therefore, it would be in accordance with
accepted principles of constitutional construction that as far
as incumbent justices and judges are concerned, this Court
be consulted and that its view be accorded the fullest
consideration. No fear need be entertained that there is a
failure to accord respect to the basic principle that this Court
does not render advisory opinions. No question of law is
involved. If such were the case, certainly this Court could not
have its say prior to the action taken by either of the two
departments. Even then, it could do so but only by way of
deciding a case where the matter has been put in issue.
Neither is there any intrusion into who shall be appointed to
the vacant positions created by the reorganization. That
remains in the hands of the Executive to whom it properly
belongs. There is no departure therefore from the tried and
tested ways of judicial power, Rather what is sought to be
achieved by this liberal interpretation is to preclude any
plausibility to the charge that in the exercise of the conceded
power of reorganizing tulle inferior courts, the power of
removal of the present incumbents vested in this Tribunal is
ignored or disregarded. The challenged Act would thus be
free from any unconstitutional taint, even one not readily
discernidble except to those predisposed to view it with
distrust. Moreover, such a construction would be in
accordance with the basic principle that in the choice of
alternatives between one which would save and another
which would invalidate a statute, the former is to be
preferred. 78 There is an obvious way to do so. The principle
that the Constitution enters into and forms part of every act
to avoid any constitutional taint must be applied Nuez v.

Sandiganbayan, 79 promulgated last January, has this relevant

excerpt: "It is true that other Sections of the Decree could
have been so worded as to avoid any constitutional
objection. As of now, however, no ruling is called for. The
view is given expression in the concurring and dissenting
opinion of Justice Makasiar that in such a case to save the
Decree from the direct fate of invalidity, they must be
construed in such a way as to preclude any possible erosion
on the powers vested in this Court by the Constitution. That
is a proposition too plain to be committed. It commends itself
for approval." 80 Nor would such a step be unprecedented.
The Presidential Decree constituting Municipal Courts into
Municipal Circuit Courts, specifically provides: "The Supreme
Court shall carry out the provisions of this Decree through
implementing orders, on a province-to-province basis." 81 It is
true there is no such provision in this Act, but the spirit that
informs it should not be ignored in the Executive Order
contemplated under its Section 44. 82 Thus Batas Pambansa
Blg. 129 could stand the most rigorous test of
constitutionality. 83
9. Nor is there anything novel in the concept that this Court is
called upon to reconcile or harmonize constitutional
provisions. To be specific, the Batasang Pambansa is
expressly vested with the authority to reorganize inferior
courts and in the process to abolish existing ones. As noted
in the preceding paragraph, the termination of office of their
occupants, as a necessary consequence of such abolition, is
hardly distinguishable from the practical standpoint from
removal, a power that is now vested in this Tribunal. It is of
the essence of constitutionalism to assure that neither
agency is precluded from acting within the boundaries of its
conceded competence. That is why it has long been wellsettled under the constitutional system we have adopted that
this Court cannot, whenever appropriate, avoid the task of
reconciliation. As Justice Laurel put it so well in the previously
cited Angara decision, while in the main, "the Constitution
has blocked out with deft strokes and in bold lines, allotment
of power to the executive, the legislative and the judicial
departments of the government, the overlapping and
interlacing of functions and duties between the several
departments, however, sometimes makes it hard to say just
where the one leaves off and the other begins." 84 It is well to

recall another classic utterance from the same jurist, even

more emphatic in its affirmation of such a view, moreover
buttressed by one of those insights for which Holmes was so
famous "The classical separation of government powers,
whether viewed in the light of the political philosophy of
Aristotle, Locke, or Motesquieu or of the postulations of
Mabini, Madison, or Jefferson, is a relative theory of
government. There is more truism and actuality in
interdependence than in independence and separation of
powers, for as observed by Justice Holmes in a case of
Philippine origin, we cannot lay down 'with mathematical
precision and divide the branches into water-tight
compartments' not only because 'the great ordinances of the
Constitution do not establish and divide fields of black and
white but also because 'even the more specific of them are
found to terminate in a penumbra shading gradually from
one extreme to the other.'" 85 This too from Justice Tuazon,
likewise expressing with force and clarity why the need for
reconciliation or balancing is well-nigh unavodiable under the
fundamental principle of separation of powers: "The
constitutional structure is a complicated system, and
overlappings of governmental functions are recognized,
unavoidable, and inherent necessities of governmental
coordination." 86 In the same way that the academe has
noted the existence in constitutional litigation of right versus
right, there are instances, and this is one of them, where,
without this attempt at harmonizing the provisions in
question, there could be a case of power against power. That
we should avoid.
10. There are other objections raised but they pose no
difficulty. Petitioners would characterize as an undue
delegation of legislative power to the President the grant of
authority to fix the compensation and the allowances of the
Justices and judges thereafter appointed. A more careful
reading of the challenged Batas Pambansa Blg. 129 ought to
have cautioned them against raising such an issue. The
language of the statute is quite clear. The questioned
provisions reads as follows: "Intermediate Appellate Justices,
Regional Trial Judges, Metropolitan Trial Judges, municipal
Trial Judges, and Municipal Circuit Trial Judges shall receive
such receive such compensation and allowances as may be
authorized by the President along the guidelines set forth in

Letter of Implementation No. 93 pursuant to Presidential

Decree No. 985, as amended by Presidential Decree No.
1597." 87 The existence of a standard is thus clear. The basic
postulate that underlies the doctrine of non-delegation is that
it is the legislative body which is entrusted with the
competence to make laws and to alter and repeal them, the
test being the completeness of the statue in all its terms and
provisions when enacted. As pointed out in Edu v.
Ericta: 88 "To avoid the taint of unlawful delegation, there
must be a standard, which implies at the very least that the
legislature itself determines matters of principle and lays
down fundamental policy. Otherwise, the charge of complete
abdication may be hard to repel. A standard thus defines
legislative policy, marks its limits, maps out its boundaries
and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be
effected. It is the criterion by which legislative purpose may
be carried out. Thereafter, the executive or administrative
office designated may in pursuance of the above guidelines
promulgate supplemental rules and regulations. The standard
may be either express or implied. If the former, the nondelegation objection is easily met. The standard though does
not have to be spelled out specifically. It could be implied
from the policy and purpose of the act considered as a
whole." 89 The undeniably strong links that bind the executive
and legislative departments under the amended Constitution
assure that the framing of policies as well as their
implementation can be accomplished with unity,
promptitude, and efficiency. There is accuracy, therefore, to
this observation in the Free Telephone Workers Union
decision: "There is accordingly more receptivity to laws
leaving to administrative and executive agencies the
adoption of such means as may be necessary to effectuate a
valid legislative purpose. It is worth noting that a highlyrespected legal scholar, Professor Jaffe, as early as 1947,
could speak of delegation as the 'dynamo of modern
government.'" 90 He warned against a "restrictive approach"
which could be "a deterrent factor to much-needed
legislation."91 Further on this point from the same opinion"
"The spectre of the non-delegation concept need not haunt,
therefore, party caucuses, cabinet sessions or legislative
chambers." 92 Another objection based on the absence in the

statue of what petitioners refer to as a "definite time frame

limitation" is equally bereft of merit. They ignore the
categorical language of this provision: "The Supreme Court
shall submit to the President, within thirty (30) days from the
date of the effectivity of this act, a staffing pattern for all
courts constituted pursuant to this Act which shall be the
basis of the implementing order to be issued by the President
in accordance with the immediately succeeding
section." 93 The first sentence of the next section is even
more categorical: "The provisions of this Act shall be
immediately carried out in accordance with an Executive
Order to be issued by the President." 94 Certainly petitioners
cannot be heard to argue that the President is insensible to
his constitutional duty to take care that the laws be faithfully
executed. 95 In the meanwhile, the existing inferior courts
affected continue functioning as before, "until the completion
of the reorganization provided in this Act as declared by the
President. Upon such declaration, the said courts shall be
deemed automatically abolished and the incumbents thereof
shall cease to hold office." 96 There is no ambiguity. The
incumbents of the courts thus automatically abolished "shall
cease to hold office." No fear need be entertained by
incumbents whose length of service, quality of performance,
and clean record justify their being named anew, 97 in legal
contemplation without any interruption in the continuity of
their service. 98 It is equally reasonable to assume that from
the ranks of lawyers, either in the government service,
private practice, or law professors will come the new
appointees. In the event that in certain cases a little more
time is necessary in the appraisal of whether or not certain
incumbents deserve reappointment, it is not from their
standpoint undesirable. Rather, it would be a reaffirmation of
the good faith that will characterize its implementation by
the Executive. There is pertinence to this observation of
Justice Holmes that even acceptance of the generalization
that courts ordinarily should not supply omissions in a law, a
generalization qualified as earlier shown by the principle that
to save a statute that could be done, "there is no canon
against using common sense in construing laws as saying
what they obviously mean." 99 Where then is the
unconstitutional flaw

11. On the morning of the hearing of this petition on

September 8, 1981, petitioners sought to have the writer of
this opinion and Justices Ramon C. Aquino and Ameurfina
Melencio-Herrera disqualified because the first-named was
the chairman and the other two, members of the Committee
on Judicial Reorganization. At the hearing, the motion was
denied. It was made clear then and there that not one of the
three members of the Court had any hand in the framing or
in the discussion of Batas Pambansa Blg. 129. They were not
consulted. They did not testify. The challenged legislation is
entirely the product of the efforts of the legislative
body. 100 Their work was limited, as set forth in the Executive
Order, to submitting alternative plan for reorganization. That
is more in the nature of scholarly studies. That the
undertook. There could be no possible objection to such
activity. Ever since 1973, this Tribunal has had administrative
supervision over interior courts. It has had the opportunity to
inform itself as to the way judicial business is conducted and
how it may be improved. Even prior to the 1973 Constitution,
it is the recollection of the writer of this opinion that either
the then Chairman or members of the Committee on Justice
of the then Senate of the Philippines 101consulted members of
the Court in drafting proposed legislation affecting the
judiciary. It is not inappropriate to cite this excerpt from an
article in the 1975 Supreme Court Review: "In the twentieth
century the Chief Justice of the United States has played a
leading part in judicial reform. A variety of conditions have
been responsible for the development of this role, and
foremost among them has been the creation of explicit
institutional structures designed to facilitate reform." 102 Also:
"Thus the Chief Justice cannot avoid exposure to and direct
involvement in judicial reform at the federal level and, to the
extent issues of judicial federalism arise, at the state level as
well." 103
12. It is a cardinal article of faith of our constitutional regime
that it is the people who are endowed with rights, to secure
which a government is instituted. Acting as it does through
public officials, it has to grant them either expressly or
impliedly certain powers. Those they exercise not for their
own benefit but for the body politic. The Constitution does
not speak in the language of ambiguity: "A public office is a
public trust." 104 That is more than a moral adjuration It is a

legal imperative. The law may vest in a public official certain

rights. It does so to enable them to perform his functions and
fulfill his responsibilities more efficiently. It is from that
standpoint that the security of tenure provision to assure
judicial independence is to be viewed. It is an added
guarantee that justices and judges can administer justice
undeterred by any fear of reprisal or untoward consequence.
Their judgments then are even more likely to be inspired
solely by their knowledge of the law and the dictates of their
conscience, free from the corrupting influence of base or
unworthy motives. The independence of which they are
assured is impressed with a significance transcending that of
a purely personal right. As thus viewed, it is not solely for
their welfare. The challenged legislation Thus subject d to the
most rigorous scrutiny by this Tribunal, lest by lack of due
care and circumspection, it allow the erosion of that Ideal so
firmly embedded in the national consciousness There is this
farther thought to consider. independence in thought and
action necessarily is rooted in one's mind and heart. As
emphasized by former Chief Justice Paras in Ocampo v.
Secretary of Justice, 105 there is no surer guarantee of judicial
independence than the God-given character and fitness of
those appointed to the Bench. The judges may be
guaranteed a fixed tenure of office during good behavior, but
if they are of such stuff as allows them to be subservient to
one administration after another, or to cater to the wishes of
one litigant after another, the independence of the judiciary
will be nothing more than a myth or an empty Ideal. Our
judges, we are confident, can be of the type of Lord Coke,
regardless or in spite of the power of Congress we do not
say unlimited but as herein exercised to reorganize inferior
courts." 106 That is to recall one of the greatest Common Law
jurists, who at the cost of his office made clear that he would
not just blindly obey the King's order but "will do what
becomes [him] as a judge." So it was pointed out in the first
leading case stressing the independence of the
judiciary, Borromeo v. Mariano, 107 Theponencia of Justice
Malcolm Identified good judges with "men who have a
mastery of the principles of law, who discharge their duties in
accordance with law, who are permitted to perform the
duties of the office undeterred by outside influence, and who
are independent and self-respecting human units in a judicial

system equal and coordinate to the other two departments of

government." 108 There is no reason to assume that the
failure of this suit to annul Batas Pambansa Blg. 129 would
be attended with deleterious consequences to the
administration of justice. It does not follow that the abolition
in good faith of the existing inferior courts except the
Sandiganbayan and the Court of Tax Appeals and the
creation of new ones will result in a judiciary unable or
unwilling to discharge with independence its solemn duty or
one recreant to the trust reposed in it. Nor should there be
any fear that less than good faith will attend the exercise be
of the appointing power vested in the Executive. It cannot be
denied that an independent and efficient judiciary is
something to the credit of any administration. Well and truly
has it been said that the fundamental principle of separation
of powers assumes, and justifiably so, that the three
departments are as one in their determination to pursue the
Ideals and aspirations and to fulfilling the hopes of the
sovereign people as expressed in the Constitution. There is
wisdom as well as validity to this pronouncement of Justice
Malcolm in Manila Electric Co. v. Pasay Transportation
Company, 109 a decision promulgated almost half a century
ago: "Just as the Supreme Court, as the guardian of
constitutional rights, should not sanction usurpations by any
other department or the government, so should it as strictly
confine its own sphere of influence to the powers expressly
or by implication conferred on it by the Organic Act." 110 To
that basic postulate underlying our constitutional system,
this Court remains committed.
WHEREFORE, the unconstitutionality of Batas Pambansa Blg.
129 not having been shown, this petition is dismissed. No
costs.
Makasiar and Escolin, JJ., concur.
Concepcion, Jr., concur in the result.

HON. NATIONAL TREASURER ROSALINA

CAJUCOM, respondents.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 96754 June 22, 1995
CONGRESSMAN JAMES L. CHIONGBIAN (Third District,
South Cotobato) ADELBERT W. ANTONINO (First
District, South Cotobato), WILFREDO G. CAINGLET
(Third District, Zamboanga del Norte), HILARION
RAMIRO, JR. (Second Division, Misamis Occidental),
ERNESTO S. AMATONG (Second District, Zamboanga
del Norte), ALVIN G. DANS (Lone District, Basilan),
ABDULLAH M. DIMAPORO (Second District, Lanao del
Norte), and CONGRESSWOMAN MARIA CLARA A.
LOBREGAT (Lone District, Zamboanga City) petitioners,
vs.
HON. OSCAR M. ORBOS, Executive Secretary;
COMMITTEE CHAIRMAN SEC. FIDEL V. RAMOS, CABINET
OFFICERS FOR REGIONAL DEVELOPMENT FOR REGIONS
X AND XII, CHAIRMAN OF THE REGIONAL
DEVELOPMENT COUNCIL FOR REGION X, CHAIRMAN
JESUS V. AYALA, CABINET OFFICERS FOR REGIONAL
DEVELOPMENT FOR REGIONS XI and XII, DEPARTMENT
OF LOCAL GOVERNMENT, NATIONAL ECONOMIC AND
DEVELOPMENT AUTHORITY SECRETARIAT,
PRESIDENTIAL MANAGEMENT STAFF, HON. GUILLERMO
CARAGUE, Secretary of the DEPARTMENT OF BUDGET
and MANAGEMENT; and HON. ROSALINA S. CAJUCUM,
OIC National Treasurer, respondents.
IMMANUEL JALDON, petitioner,
vs.
HON. EXECUTIVE SECRETARY OSCAR M. ORBOS, HON.
FIDEL RAMOS, HON. SECRETARY LUIS SANTOS, AND

MENDOZA, J.:
These suits challenge the validity of a provision of the
Organic Act for the Autonomous Region in Muslim Mindanao
(R.A. No. 6734), authorizing the President of the Philippines to
"merge" by administrative determination the regions
remaining after the establishment of the Autonomous Region,
and the Executive Order issued by the President pursuant to
such authority, "Providing for the Reorganization of
Administrative Regions in Mindanao." A temporary restraining
order prayed for by the petitioners was issued by this Court
on January 29, 1991, enjoining the respondents from
enforcing the Executive Order and statute in question.
The facts are as follows:
Pursuant to Art. X, 18 of the 1987 Constitution, Congress
passed R.A. No. 6734, the Organic Act for the Autonomous
Region in Muslim Mindanao, calling for a plebiscite to be held
in the provinces of Basilan, Cotobato, Davao del Sur, Lanao
del Norte, Lanao del Sur, Maguindanao, Palawan, South
Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del
Norte, and Zamboanga del Sur, and the cities of Cotabato,
Dapitan, Dipolog, General Santos, Iligan, Marawi, Pagadian,
Puerto Princesa and Zamboanga. In the ensuing plebiscite
held on November 16, 1989, four provinces voted in favor of
creating an autonomous region. These are the provinces of
Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi. In
accordance with the constitutional provision, these provinces
became the Autonomous Region in Muslim Mindanao.
On the other hand, with respect to provinces and cities not
voting in favor of the Autonomous Region, Art. XIX, 13 of
R.A. No. 6734 provides,
That only the provinces and cities voting favorably in such
plebiscites shall be included in the Autonomous Region in
Muslim Mindanao. The provinces and cities which in the
plebiscite do not vote for inclusion in the Autonomous Region
shall remain in the existing administrative regions. Provided,
however, that the President may, by administrative
determination, merge the existing regions.
Pursuant to the authority granted by this provision, then
President Corazon C. Aquino issued on October 12, 1990

Executive Order No. 429, "providing for the Reorganization of

the Administrative Regions in Mindanao." Under this Order,
as amended by E.O. No. 439
(1) Misamis Occidental, at present part of Region X, will
become part of Region IX.
(2) Oroquieta City, Tangub City and Ozamiz City, at present
parts of Region X will become parts of Region IX.
(3) South Cotobato, at present a part of Region XI, will
become part of Region XII.
(4) General Santos City, at present part of Region XI, will
become part of Region XII.
(5) Lanao del Norte, at present part of Region XII, will become
part of Region IX.
(6) Iligan City and Marawi City, at present part of Region XII,
will become part of Region IX.
Petitioners in G.R. No. 96754 are, or at least at the time of
the filing of their petition, members of Congress representing
various legislative districts in South Cotobato, Zamboanga
del Norte, Basilan, Lanao del Norte and Zamboanga City. On
November 12, 1990, they wrote then President Aquino
protesting E.O. No. 429. They contended that
There is no law which authorizes the President to pick certain
provinces and cities within the existing regions some of
which did not even take part in the plebiscite as in the case
of the province of Misamis Occidental and the cities of
Oroquieta, Tangub and Ozamiz and restructure them to
new administrative regions. On the other hand, the law (Sec.
13, Art. XIX, R.A. 6734) is specific to the point, that is, that
"the provinces and cities which in the plebiscite do not vote
for inclusion in the Autonomous Region shall remain in the
existing administrative regions."
The transfer of the provinces of Misamis Occidental from
Region X to Region IX; Lanao del Norte from Region XII to
Region IX, and South Cotobato from Region XI to Region XII
are alterations of the existing structures of governmental
units, in other words, reorganization. This can be gleaned
from Executive Order No. 429, thus
Whereas, there is an urgent need to reorganize the
administrative regions in Mindanao to guarantee the effective
delivery of field services of government agencies taking into
consideration the formation of the Autonomous Region in
Muslim Mindanao.

With due respect to Her Excellency, we submit that while the

authority necessarily includes the authority to merge, the
authority to merge does not include the authority to
reorganize. Therefore, the President's authority under RA
6734 to "merge existing regions" cannot be construed to
include the authority to reorganize them. To do so will violate
the rules of statutory construction.
The transfer of regional centers under Executive Order 429 is
actually a restructuring (reorganization) of administrative
regions. While this reorganization, as in Executive Order 429,
does not affect the apportionment of congressional
representatives, the same is not valid under the penultimate
paragraph of Sec. 13, Art. XIX of R.A. 6734 and Ordinance
appended to the 1986 Constitution apportioning the seats of
the House of Representatives of Congress of the Philippines
to the different legislative districts in provinces and cities. 1
As their protest went unheeded, while Inauguration
Ceremonies of the New Administrative Region IX were
scheduled on January 26, 1991, petitioners brought this suit
for certiorari and prohibition.
On the other hand, the petitioner in G.R. No. 96673,
Immanuel Jaldon, is a resident of Zamboanga City, who is
suing in the capacity of taxpayer and citizen of the Republic
of the Philippines.
Petitioners in both cases contend that Art. XIX, 13 of R.A. No.
6734 is unconstitutional because (1) it unduly delegates
legislative power to the President by authorizing him to
"merge [by administrative determination] the existing
regions" or at any rate provides no standard for the exercise
of the power delegated and (2) the power granted is not
expressed in the title of the law.
In addition, petitioner in G.R. No. 96673 challenges the
validity of E.O. No. 429 on the ground that the power granted
by Art. XIX, 13 to the President is only to "merge regions IX
and XII" but not to reorganize the entire administrative
regions in Mindanao and certainly not to transfer the regional
center of Region IX from Zamboanga City to Pagadian City.
The Solicitor General defends the reorganization of regions in
Mindanao by E.O. No. 429 as merely the exercise of a power
"traditionally lodged in the President," as held in Abbas
v. Comelec, 2 and as a mere incident of his power of general
supervision over local governments and control of executive

departments, bureaus and offices under Art. X, 16 and Art.

VII, 17, respectively, of the Constitution.
He contends that there is no undue delegation of legislative
power but only a grant of the power to "fill up" or provide the
details of legislation because Congress did not have the
facility to provide for them. He cites by analogy the case
of Municipality of Cardona v. Municipality of Binangonan, 3 in
which the power of the Governor-General to fix municipal
boundaries was sustained on the ground that
[such power] is simply a transference of certain details with
respect to provinces, municipalities, and townships, many of
them newly created, and all of them subject to a more or less
rapid change both in development and centers of population,
the proper regulation of which might require not only prompt
action but action of such a detailed character as not to
permit the legislative body, as such, to take it efficiently.
The Solicitor General justifies the grant to the President of
the power "to merge the existing regions" as something fairly
embraced in the title of R.A. No. 6734, to wit, "An Act
Providing for an Organic Act for the Autonomous Region in
Muslim Mindanao," because it is germane to it.
He argues that the power is not limited to the merger of
those regions in which the provinces and cities which took
part in the plebiscite are located but that it extends to all
regions in Mindanao as necessitated by the establishment of
the autonomous region.
Finally, he invokes P.D. No. 1416, as amended by P.D. No.
1772 which provides:
1. The President of the Philippines shall have the continuing
authority to reorganize the National Government. In
exercising this authority, the President shall be guided by
generally acceptable principles of good government and
responsive national government, including but not limited to
the following guidelines for a more efficient, effective,
economical and development-oriented governmental
framework:
(a) More effective planning implementation, and review
functions;
(b) Greater decentralization and responsiveness in decisionmaking process;
(c) Further minimization, if not, elimination, of duplication or
overlapping of purposes, functions, activities, and programs;

(d) Further development of as standardized as possible

ministerial, sub-ministerial and corporate organizational
structures;
(e) Further development of the regionalization process; and
(f) Further rationalization of the functions of and
administrative relationships among government entities.
For purposes of this Decree, the coverage of the continuing
authority of the President to reorganize shall be interpreted
to encompass all agencies, entities, instrumentalities, and
units of the National Government, including all government
owned or controlled corporations as well as the entire range
of the powers, functions, authorities, administrative
relationships, acid related aspects pertaining to these
agencies, entities, instrumentalities, and units.
2. [T]he President may, at his discretion, take the following
actions:
xxx xxx xxx
f. Create, abolish, group, consolidate, merge, or integrate
entities, agencies, instrumentalities, and units of the National
Government, as well as expand, amend, change, or
otherwise modify their powers, functions and authorities,
including, with respect to government-owned or controlled
corporations, their corporate life, capitalization, and other
relevant aspects of their charters.
g. Take such other related actions as may be necessary to
carry out the purposes and objectives of this Decree.
Considering the arguments of the parties, the issues are:
(1) whether the power to "merge" administrative regions is
legislative in character, as petitioners contend, or whether it
is executive in character, as respondents claim it is, and, in
any event, whether Art. XIX, 13 is invalid because it contains
no standard to guide the President's discretion;
(2) whether the power given is fairly expressed in the title of
the statute; and
(3) whether the power granted authorizes the reorganization
even of regions the provinces and cities in which either did
not take part in the plebiscite on the creation of the
Autonomous Region or did not vote in favor of it; and
(4) whether the power granted to the President includes the
power to transfer the regional center of Region IX from
Zamboanga City to Pagadian City.

It will be useful to recall first the nature of administrative

regions and the basis and purpose for their creation. On
September 9, 1968, R.A. No. 5435 was passed "authorizing
the President of the Philippines, with the help of a
Commission on Reorganization, to reorganize the different
executive departments, bureaus, offices, agencies and
instrumentalities of the government, including banking or
financial institutions and corporations owned or controlled by
it." The purpose was to promote "simplicity, economy and
efficiency in the government." 4 The Commission on
Reorganization created under the law was required to submit
an integrated reorganization plan not later than December
31, 1969 to the President who was in turn required to submit
the plan to Congress within forty days after the opening of its
next regular session. The law provided that any
reorganization plan submitted would become effective only
upon the approval of Congress. 5
Accordingly, the Reorganization Commission prepared an
Integrated Reorganization Plan which divided the country into
eleven administrative regions. 6 By P.D. No. 1, the Plan was
approved and made part of the law of the land on September
24, 1972. P.D. No. 1 was twice amended in 1975, first by P.D.
No. 742 which "restructur[ed] the regional organization of
Mindanao, Basilan, Sulu and Tawi-Tawi" and later by P.D. No.
773 which further "restructur[ed] the regional organization of
Mindanao and divid[ed] Region IX into two sub-regions." In
1978, P.D. No. 1555 transferred the regional center of Region
IX from Jolo to Zamboanga City.
Thus the creation and subsequent reorganization of
administrative regions have been by the President pursuant
to authority granted to him by law. In conferring on the
President the power "to merge [by administrative
determination] the existing regions" following the
establishment of the Autonomous Region in Muslim
Mindanao, Congress merely followed the pattern set in
previous legislation dating back to the initial organization of
administrative regions in 1972. The choice of the President as
delegate is logical because the division of the country into
regions is intended to facilitate not only the administration of
local governments but also the direction of executive
departments which the law requires should have regional
offices. As this Court observed in Abbas, "while the power to

merge administrative regions is not expressly provided for in

the Constitution, it is a power which has traditionally been
lodged with the President to facilitate the exercise of the
power of general supervision over local governments
[see Art. X, 4 of the Constitution]." The regions themselves
are not territorial and political divisions like provinces, cities,
municipalities and barangays but are "mere groupings of
contiguous provinces for administrative purposes." 7 The
power conferred on the President is similar to the power to
adjust municipal boundaries 8which has been described
in Pelaez v. Auditor General 9 or as "administrative in nature."
There is, therefore, no abdication by Congress of its
legislative power in conferring on the President the power to
merge administrative regions. The question is whether
Congress has provided a sufficient standard by which the
President is to be guided in the exercise of the power granted
and whether in any event the grant of power to him is
included in the subject expressed in the title of the law.
First, the question of standard. A legislative standard need
not be expressed. It may simply be gathered or
implied. 10 Nor need it be found in the law challenged
because it may be embodied in other statutes on the same
subject as that of the challenged legislation. 11
With respect to the power to merge existing administrative
regions, the standard is to be found in the same policy
underlying the grant to the President in R.A. No. 5435 of the
power to reorganize the Executive Department, to wit: "to
promote simplicity, economy and efficiency in the
government to enable it to pursue programs consistent with
national goals for accelerated social and economic
development and to improve the service in the transaction of
the public business." 12 Indeed, as the original eleven
administrative regions were established in accordance with
this policy, it is logical to suppose that in authorizing the
President to "merge [by administrative determination] the
existing regions" in view of the withdrawal from some of
those regions of the provinces now constituting the
Autonomous Region, the purpose of Congress was to
reconstitute the original basis for the organization of
administrative regions.
Nor is Art. XIX, 13 susceptible to charge that its subject is
not embraced in the title of R.A. No. 6734. The constitutional

requirement that "every bill passed by the Congress shall

embrace only one subject which shall be expressed in the
title thereof" 13 has always been given a practical rather than
a technical construction. The title is not required to be an
index of the content of the bill. It is a sufficient compliance
with the constitutional requirement if the title expresses the
general subject and all provisions of the statute are germane
to that subject. 14 Certainly the reorganization of the
remaining administrative regions is germane to the general
subject of R.A. No. 6734, which is the establishment of the
Autonomous Region in Muslim Mindanao.
Finally, it is contended that the power granted to the
President is limited to the reorganization of administrative
regions in which some of the provinces and cities which
voted in favor of regional autonomy are found, because Art.
XIX, 13 provides that those which did not vote for autonomy
"shall remain in the existing administrative regions." More
specifically, petitioner in G.R. No. 96673 claims:
The questioned Executive Order No. 429 distorted and, in
fact, contravened the clear intent of this provision by moving
out or transferring certain political subdivisions
(provinces/cities) out of their legally designated regions.
Aggravating this unacceptable or untenable situation is EO
No. 429's effecting certain movements on areas which did
not even participate in the November 19, 1989 plebiscite.
The unauthorized action of the President, as effected by and
under the questioned EO No. 429, is shown by the following
dispositions: (1) Misamis Occidental, formerly of Region X
and which did not even participate in the plebiscite, was
moved from said Region X to Region IX; (2) the cities of
Ozamis, Oroquieta, and Tangub, all formerly belonging to
Region X, which likewise did not participate in the said
plebiscite, were transferred to Region IX; (3) South Cotobato,
from Region XI to Region XII; (4) General Santos City: from
Region XI to Region XII; (5) Lanao del Norte, from Region XII
to Region IX; and (6) the cities of Marawi and Iligan from
Region XII to Region IX. All of the said provinces and cities
voted "NO", and thereby rejected their entry into the
Autonomous Region in Muslim Mindanao, as provided under
RA No. 6734. 15
The contention has no merit. While Art. XIX, 13 provides that
"The provinces and cities which do not vote for inclusion in

the Autonomous Region shall remain in the existing

administrative regions," this provision is subject to the
qualification that "the President may by administrative
determination merge the existing regions." This means that
while non-assenting provinces and cities are to remain in the
regions as designated upon the creation of the Autonomous
Region, they may nevertheless be regrouped with contiguous
provinces forming other regions as the exigency of
administration may require.
The regrouping is done only on paper. It involves no more
than are definition or redrawing of the lines separating
administrative regions for the purpose of facilitating the
administrative supervision of local government units by the
President and insuring the efficient delivery of essential
services. There will be no "transfer" of local governments
from one region to another except as they may thus be
regrouped so that a province like Lanao del Norte, which is at
present part of Region XII, will become part of Region IX.
The regrouping of contiguous provinces is not even
analogous to a redistricting or to the division or merger of
local governments, which all have political consequences on
the right of people residing in those political units to vote and
to be voted for. It cannot be overemphasized that
administrative regions are mere groupings of contiguous
provinces for administrative purposes, not for political
representation.
Petitioners nonetheless insist that only those regions, in
which the provinces and cities which voted for inclusion in
the Autonomous Region are located, can be "merged" by the
President.
To be fundamental reason Art. XIX, 13 is not so limited. But
the more fundamental reason is that the President's power
cannot be so limited without neglecting the necessities of
administration. It is noteworthy that the petitioners do not
claim that the reorganization of the regions in E.O. No. 429 is
irrational. The fact is that, as they themselves admit, the
reorganization of administrative regions in E.O. No. 429 is
based on relevant criteria, to wit: (1) contiguity and
geographical features; (2) transportation and communication
facilities; (3) cultural and language groupings; (4) land area
and population; (5) existing regional centers adopted by

several agencies; (6) socio-economic development programs

in the regions and (7) number of provinces and cities.
What has been said above applies to the change of the
regional center from Zamboanga City to Pagadian City.
Petitioners contend that the determination of provincial
capitals has always been by act of Congress. But as, this
Court said in Abbas, 16 administrative regions are mere
"groupings of contiguous provinces for administrative
purposes, . . . [They] are not territorial and political
subdivisions like provinces, cities, municipalities and
barangays." There is, therefore, no basis for contending that
only Congress can change or determine regional centers. To
the contrary, the examples of P.D. Nos. 1, 742, 773 and 1555
suggest that the power to reorganize administrative regions
carries with it the power to determine the regional center.
It may be that the transfer of the regional center in Region IX
from Zamboanga City to Pagadian City may entail the
expenditure of large sums of money for the construction of
buildings and other infrastructure to house regional offices.
That contention is addressed to the wisdom of the transfer
rather than to its legality and it is settled that courts are not
the arbiters of the wisdom or expediency of legislation. In
any event this is a question that we will consider only if fully
briefed and upon a more adequate record than that
presented by petitioners.
WHEREFORE, the petitions for certiorari and prohibition are
DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr.,
Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and
Francisco, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 124360 November 5, 1997
FRANCISCO S. TATAD, petitioner,
vs.
THE SECRETARY OF THE DEPARTMENT OF ENERGY AND
THE SECRETARY OF THE DEPARTMENT OF
FINANCE, respondents.
G.R. No. 127867 November 5, 1997
EDCEL C. LAGMAN, JOKER P. ARROYO, ENRIQUE
GARCIA, WIGBERTO TANADA, FLAG HUMAN RIGHTS
FOUNDATION, INC., FREEDOM FROM DEBT COALITION
(FDC), SANLAKAS, petitioners,
vs.
HON. RUBEN TORRES in his capacity as the Executive
Secretary, HON. FRANCISCO VIRAY, in his capacity as
the Secretary of Energy, CALTEX Philippines, Inc.,
PETRON Corporation and PILIPINAS SHELL
Corporation, respondents.
PUNO, J.:
The petitions at bar challenge the constitutionality of
Republic Act No. 8180 entitled "An Act Deregulating the
Downstream Oil Industry and For Other Purposes". 1 R.A. No.
8180 ends twenty six (26) years of government regulation of
the downstream oil industry. Few cases carry a surpassing
importance on the life of every Filipino as these petitions for
the upswing and downswing of our economy materially
depend on the oscillation of oil.
First, the facts without the fat. Prior to 1971, there was no
government agency regulating the oil industry other than
those dealing with ordinary commodities. Oil companies were

free to enter and exit the market without any government

interference. There were four (4) refining companies (Shell,
Caltex, Bataan Refining Company and Filoil Refining) and six
(6) petroleum marketing companies (Esso, Filoil, Caltex,
Getty, Mobil and Shell), then operating in the country. 2
In 1971, the country was driven to its knees by a crippling oil
crisis. The government, realizing that petroleum and its
products are vital to national security and that their
continued supply at reasonable prices is essential to the
general welfare, enacted the Oil Industry Commission Act. 3 It
created the Oil Industry Commission (OIC) to regulatethe
business of importing, exporting, re-exporting, shipping,
transporting, processing, refining, storing, distributing,
marketing and selling crude oil, gasoline, kerosene, gas and
other refined petroleum products. The OIC was vested with
the power to fix the market prices of petroleum products, to
regulate the capacities of refineries, to license new refineries
and to regulate the operations and trade practices of the
industry. 4
In addition to the creation of the OIC, the government saw
the imperious need for a more active role of Filipinos in the
oil industry. Until the early seventies, the downstream oil
industry was controlled by multinational companies. All the
oil refineries and marketing companies were owned
by foreigners whose economic interests did not always
coincide with the interest of the Filipino. Crude oil was
transported to the country by foreign-controlled tankers.
Crude processing was done locally by foreign-owned
refineries and petroleum products were marketed through
foreign-owned retail outlets. On November 9, 1973, President
Ferdinand E. Marcos boldly created the Philippine National Oil
Corporation (PNOC) to break the control by foreigners of our
oil industry. 5 PNOC engaged in the business of refining,
marketing, shipping, transporting, and storing petroleum. It
acquired ownership of ESSO Philippines and Filoil to serve as
its marketing arm. It bought the controlling shares of Bataan
Refining Corporation, the largest refinery in the
country. 6 PNOC later put up its own marketing subsidiary
Petrophil. PNOC operated under the business name PETRON
Corporation. For the first time, there was a Filipino presence
in the Philippine oil market.

In 1984, President Marcos through Section 8 of Presidential

Decree No. 1956, created the Oil Price Stabilization
Fund (OPSF) to cushion the effects of frequent changes in the
price of oil caused by exchange rate adjustments or increase
in the world market prices of crude oil and imported
petroleum products. The fund is used (1) to reimburse the oil
companies for cost increases in crude oil and imported
petroleum products resulting from exchange rate adjustment
and/or increase in world market prices of crude oil, and (2) to
reimburse oil companies for cost underrecovery incurred as a
result of the reduction of domestic prices of petroleum
products. Under the law, the OPSF may be sourced from:
1. any increase in the tax collection from ad valorem tax or
customs duty imposed on petroleum products subject to tax
under P.D. No. 1956 arising from exchange rate adjustment,
2. any increase in the tax collection as a result of the lifting of
tax exemptions of government corporations, as may be
determined by the Minister of Finance in consultation with
the Board of Energy,
3. any additional amount to be imposed on petroleum
products to augment the resources of the fund through an
appropriate order that may be issued by the Board of Energy
requiring payment of persons or companies engaged in the
business of importing, manufacturing and/or marketing
petroleum products, or
4. any resulting peso costs differentials in case the actual
peso costs paid by oil companies in the importation of crude
oil and petroleum products is less than the peso costs
computed using the reference foreign exchange rate as fixed
by the Board of Energy. 7
By 1985, only three (3) oil companies were operating in the
country Caltex, Shell and the government-owned PNOC.
In May, 1987, President Corazon C. Aquino signed Executive
Order No. 172 creating the Energy Regulatory Board to
regulate the business of importing, exporting, re-exporting,
shipping, transporting, processing, refining, marketing and
distributing energy resources "when warranted and only
when public necessity requires." The Board had the following
powers and functions:
1. Fix and regulate the prices of petroleum products;

2. Fix and regulate the rate schedule or prices of piped gas to

be charged by duly franchised gas companies which
distribute gas by means of underground pipe system;
3. Fix and regulate the rates of pipeline concessionaries
under the provisions of R.A. No. 387, as amended . . . ;
4. Regulate the capacities of new refineries or additional
capacities of existing refineries and license refineries that
may be organized after the issuance of (E.O. No. 172) under
such terms and conditions as are consistent with the national
interest; and
5. Whenever the Board has determined that there is a
shortage of any petroleum product, or when public interest
so requires, it may take such steps as it may consider
necessary, including the temporary adjustment of the levels
of prices of petroleum products and the payment to the Oil
Price Stabilization Fund . . . by persons or entities engaged in
the petroleum industry of such amounts as may be
determined by the Board, which may enable the importer to
recover its cost of importation. 8
On December 9, 1992, Congress enacted R.A. No. 7638 which
created the Department of Energy to prepare, integrate,
coordinate, supervise and control all plans, programs,
projects, and activities of the government in relation to
energy exploration, development, utilization, distribution and
conservation. 9 The thrust of the Philippine energy program
under the law was toward privatization of government
agencies related to energy, deregulation of the power and
energy industry and reduction of dependency on oil-fired
plants. 10 The law also aimed to encourage free and active
participation and investment by the private sector in all
energy activities. Section 5(e) of the law states that "at the
end of four (4) years from the effectivity of this Act, the
Department shall, upon approval of the President, institute
the programs and timetable of deregulation of appropriate
energy projects and activities of the energy industry."
Pursuant to the policies enunciated in R.A. No. 7638, the
government approved the privatization of Petron
Corporation in 1993. On December 16, 1993, PNOC sold 40%
of its equity in Petron Corporation to the Aramco Overseas
Company.
In March 1996, Congress took the audacious step
of deregulating the downstream oil industry. It

enacted R.A.No. 8180, entitled the "Downstream Oil Industry

Deregulation Act of 1996." Under the deregulated
environment, "any person or entity may import or purchase
any quantity of crude oil and petroleum products from a
foreign or domestic source, lease or own and operate
refineries and other downstream oil facilities and market
such crude oil or use the same for his own requirement,"
subject only to monitoring by the Department of
Energy. 11
The deregulation process has two phases: the transition
phase and the full deregulation phase. During the transition
phase, controls of the non-pricing aspects of the oil industry
were to be lifted. The following were to be accomplished: (1)
liberalization of oil importation, exportation, manufacturing,
marketing and distribution, (2) implementation of an
automatic pricing mechanism, (3) implementation of an
automatic formula to set margins of dealers and rates of
haulers, water transport operators and pipeline
concessionaires, and (4) restructuring of oil taxes. Upon full
deregulation, controls on the price of oil and the foreign
exchange cover were to be lifted and the OPSF was to be
abolished.
The first phase of deregulation commenced on August 12,
1996.
On February 8, 1997, the President implemented the full
deregulation of the Downstream Oil Industry through
E.O. No. 372.
The petitions at bar assail the constitutionality of various
provisions of R.A No. 8180 and E.O. No. 372.
In G.R. No. 124360, petitioner Francisco S. Tatad seeks the
annulment of section 5(b) of R.A. No. 8180. Section 5(b)
provides:
b) Any law to the contrary notwithstanding and starting with
the effectivity of this Act, tariff duty shall be imposed and
collected on imported crude oil at the rate of three percent
(3%) and imported refined petroleum products at the rate of
seven percent (7%), except fuel oil and LPG, the rate for
which shall be the same as that for imported crude oil:
Provided, That beginning on January 1, 2004 the tariff rate on
imported crude oil and refined petroleum products shall be
the same: Provided, further, That this provision may be
amended only by an Act of Congress.

The petition is anchored on three arguments:

First, that the imposition of different tariff rates on imported
crude oil and imported refined petroleum products violates
the equal protection clause. Petitioner contends that the 3%7% tariff differential unduly favors the three existing oil
refineries and discriminates against prospective investors in
the downstream oil industry who do not have their own
refineries and will have to source refined petroleum products
from abroad.
Second, that the imposition of different tariff rates does not
deregulate the downstream oil industry but instead controls
the oil industry, contrary to the avowed policy of the law.
Petitioner avers that the tariff differential between imported
crude oil and imported refined petroleum products bars the
entry of other players in the oil industry because it effectively
protects the interest of oil companies with existing refineries.
Thus, it runs counter to the objective of the law "to foster a
truly competitive market."
Third, that the inclusion of the tariff provision in section 5(b)
of R.A. No. 8180 violates Section 26(1) Article VI of the
Constitution requiring every law to have only one subject
which shall be expressed in its title. Petitioner contends that
the imposition of tariff rates in section 5(b) of R.A. No. 8180 is
foreign to the subject of the law which is the deregulation of
the downstream oil industry.
In G.R. No. 127867, petitioners Edcel C. Lagman, Joker P.
Arroyo, Enrique Garcia, Wigberto Tanada, Flag Human Rights
Foundation, Inc., Freedom from Debt Coalition (FDC) and
Sanlakas contest the constitutionality of section 15 of R.A.
No. 8180 and E.O. No. 392. Section 15 provides:
Sec. 15. Implementation of Full Deregulation. Pursuant to
Section 5(e) of Republic Act No. 7638, the DOE shall, upon
approval of the President, implement the full deregulation of
the downstream oil industry not later than March 1997. As far
as practicable, the DOE shall time the full deregulation when
the prices of crude oil and petroleum products in the world
market are declining and when the exchange rate of the peso
in relation to the US dollar is stable. Upon the
implementation of the full deregulation as provided herein,
the transition phase is deemed terminated and the following
laws are deemed repealed:
xxx xxx xxx

E.O. No. 372 states in full, viz.:

WHEREAS, Republic Act No. 7638, otherwise known as the
"Department of Energy Act of 1992," provides that, at the
end of four years from its effectivity last December 1992,
"the Department (of Energy) shall, upon approval of the
President, institute the programs and time table of
deregulation of appropriate energy projects and activities of
the energy sector;"
WHEREAS, Section 15 of Republic Act No. 8180, otherwise
known as the "Downstream Oil Industry Deregulation Act of
1996," provides that "the DOE shall, upon approval of the
President, implement full deregulation of the downstream oil
industry not later than March, 1997. As far as practicable, the
DOE shall time the full deregulation when the prices of crude
oil and petroleum products in the world market are declining
and when the exchange rate of the peso in relation to the US
dollar is stable;"
WHEREAS, pursuant to the recommendation of the
Department of Energy, there is an imperative need to
implement the full deregulation of the downstream oil
industry because of the following recent developments: (i)
depletion of the buffer fund on or about 7 February 1997
pursuant to the Energy Regulatory Board's Order dated 16
January 1997; (ii) the prices of crude oil had been stable at
$21-$23 per barrel since October 1996 while prices of
petroleum products in the world market had been stable
since mid-December of last year. Moreover, crude oil prices
are beginning to soften for the last few days while prices of
some petroleum products had already declined; and (iii) the
exchange rate of the peso in relation to the US dollar has
been stable for the past twelve (12) months, averaging at
around P26.20 to one US dollar;
WHEREAS, Executive Order No. 377 dated 31 October 1996
provides for an institutional framework for the administration
of the deregulated industry by defining the functions and
responsibilities of various government agencies;
WHEREAS, pursuant to Republic Act No. 8180, the
deregulation of the industry will foster a truly competitive
market which can better achieve the social policy objectives
of fair prices and adequate, continuous supply of
environmentally-clean and high quality petroleum products;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the

Republic of the Philippines, by the powers vested in me by
law, do hereby declare the full deregulation of the
downstream oil industry.
In assailing section 15 of R.A. No. 8180 and E.O. No. 392,
petitioners offer the following submissions:
First, section 15 of R.A. No. 8180 constitutes an undue
delegation of legislative power to the President and the
Secretary of Energy because it does not provide a
determinate or determinable standard to guide the Executive
Branch in determining when to implement the full
deregulation of the downstream oil industry. Petitioners
contend that the law does not define when it is practicable
for the Secretary of Energy to recommend to the President
the full deregulation of the downstream oil industry or when
the President may consider it practicable to declare full
deregulation. Also, the law does not provide any specific
standard to determine when the prices of crude oil in the
world market are considered to be declining nor when the
exchange rate of the peso to the US dollar is considered
stable.
Second, petitioners aver that E.O. No. 392 implementing the
full deregulation of the downstream oil industry is arbitrary
and unreasonable because it was enacted due to the alleged
depletion of the OPSF fund a condition not found in R.A.
No. 8180.
Third, section 15 of R.A. No. 8180 and E.O. No. 392 allow the
formation of a de facto cartel among the three existing oil
companies Petron, Caltex and Shell in violation of the
constitutional prohibition against monopolies, combinations
in restraint of trade and unfair competition.
Respondents, on the other hand, fervently defend the
constitutionality of R.A. No. 8180 and E.O. No. 392. In
addition, respondents contend that the issues raised by the
petitions are not justiciable as they pertain to the wisdom of
the law. Respondents further aver that petitioners have
no locus standi as they did not sustain nor will they sustain
direct injury as a result of the implementation of R.A. No.
8180.
The petitions were heard by the Court on September 30,
1997. On October 7, 1997, the Court ordered the private
respondents oil companies "to maintain the status quo and to

cease and desist from increasing the prices of gasoline and

other petroleum fuel products for a period of thirty (30)
days . . . subject to further orders as conditions may
warrant."
We shall now resolve the petitions on the merit. The petitions
raise procedural and substantive issues bearing on the
constitutionality of R.A. No. 8180 and E.O. No. 392.
The procedural issues are: (1) whether or not the petitions
raise a justiciable controversy, and (2) whether or not the
petitioners have the standing to assail the validity of the
subject law and executive order. The substantive issues are:
(1) whether or not section 5 (b) violates the one title one
subject requirement of the Constitution; (2) whether or not
the same section violates the equal protection clause of the
Constitution; (3) whether or not section 15 violates the
constitutional prohibition on undue delegation of power; (4)
whether or not E.O. No. 392 is arbitrary and unreasonable;
and (5) whether or not R.A. No. 8180 violates the
constitutional prohibition against monopolies, combinations
in restraint of trade and unfair competition.
We shall first tackle the procedural issues. Respondents claim
that the avalanche of arguments of the petitioners assail the
wisdom of R.A. No. 8180. They aver that deregulation of the
downstream oil industry is a policy decision made by
Congress and it cannot be reviewed, much less be reversed
by this Court. In constitutional parlance, respondents contend
that the petitions failed to raise a justiciable controversy.
Respondents' joint stance is unnoteworthy. Judicial power
includes not only the duty of the courts to settle actual
controversies involving rights which are legally demandable
and enforceable, but also 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. 12 The courts, as
guardians of the Constitution, have the inherent authority to
determine whether a statute enacted by the legislature
transcends the limit imposed by the fundamental law. Where
a statute violates the Constitution, it is not only the right but
the duty of the judiciary to declare such act as
unconstitutional and void. 13 We held in the recent case
of Tanada v. Angara: 14
xxx xxx xxx

In seeking to nullify an act of the Philippine Senate on the

ground that it contravenes the Constitution, the petition no
doubt raises a justiciable controversy. 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. The question thus
posed is judicial rather than political. The duty to adjudicate
remains to assure that the supremacy of the Constitution is
upheld. Once a controversy as to the application or
interpretation of a constitutional provision is raised before
this Court, it becomes a legal issue which the Court is bound
by constitutional mandate to decide.
Even a sideglance at the petitions will reveal that petitioners
have raised constitutional issues which deserve the
resolution of this Court in view of their seriousness and their
value as precedents. Our statement of facts and definition of
issues clearly show that petitioners are assailing R.A. No.
8180 because its provisions infringe the Constitution and not
because the law lacks wisdom. The principle of separation of
power 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. Every now and then, a law may be denounced in
court both as bereft of wisdom and constitutionally infirmed.
Such denunciation will not deny this Court of its jurisdiction
to resolve the constitutionality of the said law while
prudentially refusing to pass on its wisdom.
The effort of respondents to question the locus standi of
petitioners must also fall on barren ground. In language too
lucid to be misunderstood, this Court has brightlined its
liberal stance on a petitioner's locus standi where the
petitioner is able to craft an issue of transcendental
significance to the people. 15 In Kapatiran ng mga
Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 16 we
stressed:
xxx xxx xxx
Objections to taxpayers' suit for lack of sufficient personality,
standing or interest are, however, in the main procedural
matters. Considering the importance to the public of the
cases at bar, and in keeping with the Court's duty, under the
1987 Constitution, to determine whether or not the other
branches of government have kept themselves within the

limits of the Constitution and the laws and that they have not
abused the discretion given to them, the Court has brushed
aside technicalities of procedure and has taken cognizance of
these petitions.
There is not a dot of disagreement between the petitioners
and the respondents on the far reaching importance of the
validity of RA No. 8180 deregulating our downstream oil
industry. Thus, there is no good sense in being hypertechnical
on the standing of petitioners for they pose issues which are
significant to our people and which deserve our forthright
resolution.
We shall now track down the substantive issues. In G.R. No.
124360 where petitioner is Senator Tatad, it is contended
that section 5(b) of R.A. No. 8180 on tariff differential violates
the provision 17 of the Constitution requiring every law to
have only one subject which should be expressed in its title.
We do not concur with this contention. As a policy, this Court
has adopted a liberal construction of the one title one
subject rule. We have consistently ruled 18that the title need
not mirror, fully index or catalogue all contents and minute
details of a law. A law having a single general subject
indicated in the title may contain any number of provisions,
no matter how diverse they may be, so long as they are not
inconsistent with or foreign to the general subject, and may
be considered in furtherance of such subject by providing for
the method and means of carrying out the general
subject. 19 We hold that section 5(b) providing for tariff
differential is germane to the subject of R.A. No. 8180 which
is the deregulation of the downstream oil industry. The
section is supposed to sway prospective investors to put up
refineries in our country and make them rely less on
imported petroleum. 20 We shall, however, return to the
validity of this provision when we examine its blocking effect
on new entrants to the oil market.
We shall now slide to the substantive issues in G.R. No.
127867. Petitioners assail section 15 of R.A. No. 8180 which
fixes the time frame for the full deregulation of the
downstream oil industry. We restate its pertinent portion for
emphasis, viz.:
Sec. 15. Implementation of Full Deregulation Pursuant to
section 5(e) of Republic Act No. 7638, the DOE shall, upon
approval of the President, implement the full deregulation of

the downstream oil industry not later than March 1997. As

far as practicable, the DOE shall time the full deregulation
when the prices of crude oil and petroleum products in the
world market are declining and when the exchange rate of
the peso in relation to the US dollar is stable . . .
Petitioners urge that the phrases "as far as practicable,"
"decline of crude oil prices in the world market" and "stability
of the peso exchange rate to the US dollar" are ambivalent,
unclear and inconcrete in meaning. They submit that they do
not provide the "determinate or determinable standards"
which can guide the President in his decision to fully
deregulate the downstream oil industry. In addition, they
contend that E.O. No. 392 which advanced the date of full
deregulation is void for it illegally considered the depletion of
the OPSF fund as a factor.
The power of Congress to delegate the execution of laws has
long been settled by this Court. As early as 1916 inCompania
General de Tabacos de Filipinas vs. The Board of Public Utility
Commissioners, 21 this Court thru, Mr. Justice Moreland, held
that "the true distinction is between the delegation of power
to make the law, which necessarily involves a discretion as to
what it shall be, and conferring authority or discretion as to
its execution, to be exercised under and in pursuance of the
law. The first cannot be done; to the latter no valid objection
can be made." Over the years, as the legal engineering of
men's relationship became more difficult, Congress has to
rely more on the practice of delegating the execution of laws
to the executive and other administrative agencies. Two tests
have been developed to determine whether the delegation of
the power to execute laws does not involve the abdication of
the power to make law itself. We delineated the metes and
bounds of these tests in Eastern Shipping Lines,
Inc. VS. POEA, 22 thus:
There are two accepted tests to determine whether or not
there is a valid delegation of legislative power,viz: the
completeness test and the sufficient standard test. Under the
first test, the law must be complete in all its terms and
conditions when it leaves the legislative such that when it
reaches the delegate the only thing he will have to do is to
enforce it. Under the sufficient standard test, there must be
adequate guidelines or limitations in the law to map out the
boundaries of the delegate's authority and prevent the

delegation from running riot. Both tests are intended to

prevent a total transference of legislative authority to the
delegate, who is not allowed to step into the shoes of the
legislature and exercise a power essentially legislative.
The validity of delegating legislative power is now a quiet
area in our constitutional landscape. As sagely observed,
delegation of legislative power has become an inevitability in
light of the increasing complexity of the task of government.
Thus, courts bend as far back as possible to sustain the
constitutionality of laws which are assailed as unduly
delegating legislative powers. Citing Hirabayashi v. United
States 23 as authority, Mr. Justice Isagani A. Cruz states "that
even if the law does not expressly pinpoint the standard, the
courts will bend over backward to locate the same elsewhere
in order to spare the statute, if it can, from constitutional
infirmity." 24
Given the groove of the Court's rulings, the attempt of
petitioners to strike down section 15 on the ground of undue
delegation of legislative power cannot prosper. Section 15
can hurdle both the completeness test and the sufficient
standard test. It will be noted that Congress expressly
provided in R.A. No. 8180 that full deregulation will start at
the end of March 1997, regardless of the occurrence of any
event. Full deregulation at the end of March 1997 is
mandatory and the Executive has no discretion to postpone it
for any purported reason. Thus, the law is complete on the
question of the final date of full deregulation. The discretion
given to the President is to advance the date of full
deregulation before the end of March 1997. Section 15 lays
down the standard to guide the judgment of the President
he is to time it as far as practicable when the prices of crude
oil and petroleum products in the world market
are declining and when the exchange rate of the peso in
relation to the US dollar isstable.
Petitioners contend that the words "as far as practicable,"
"declining" and "stable" should have been defined in R.A. No.
8180 as they do not set determinate or determinable
standards. The stubborn submission deserves scant
consideration. The dictionary meanings of these words are
well settled and cannot confuse men of reasonable
intelligence. Webster defines "practicable" as meaning
possible to practice or perform, "decline" as meaning to take

a downward direction, and "stable" as meaning firmly

established. 25 The fear of petitioners that these words will
result in the exercise of executive discretion that will run riot
is thus groundless. To be sure, the Court has sustained the
validity of similar, if not more general standards in other
cases. 26
It ought to follow that the argument that E.O. No. 392 is null
and void as it was based on indeterminate standards set by
R.A. 8180 must likewise fail. If that were all to the attack
against the validity of E.O. No. 392, the issue need not
further detain our discourse. But petitioners further posit the
thesis that the Executive misapplied R.A. No. 8180 when it
considered the depletion of the OPSF fund as a factor in fully
deregulating the downstream oil industry in February 1997. A
perusal of section 15 of R.A. No. 8180 will readily reveal that
it only enumerated two factors to be considered by the
Department of Energy and the Office of the President, viz.:
(1) the time when the prices of crude oil and petroleum
products in the world market are declining, and (2) the time
when the exchange rate of the peso in relation to the US
dollar is stable. Section 15 did not mention the depletion of
the OPSF fund as a factor to be given weight by the
Executive before ordering full deregulation. On the contrary,
the debates in Congress will show that some of our
legislators wanted to impose as a pre-condition to
deregulation a showing that the OPSF fund must not be in
deficit. 27 We therefore hold that the Executive department
failed to follow faithfully the standards set by R.A. No. 8180
when it considered the extraneous factor of depletion of the
OPSF fund. The misappreciation of this extra factor cannot be
justified on the ground that the Executive department
considered anyway the stability of the prices of crude oil in
the world market and the stability of the exchange rate of the
peso to the dollar. By considering another factor to hasten
full deregulation, the Executive department rewrote the
standards set forth in R.A. 8180. The Executive is bereft of
any right to alter either by subtraction or addition the
standards set in R.A. No. 8180 for it has no power to make
laws. To cede to the Executive the power to make law is to
invite tyranny, indeed, to transgress the principle of
separation of powers. The exercise of delegated power is
given a strict scrutiny by courts for the delegate is a mere

agent whose action cannot infringe the terms of agency. In

the cases at bar, the Executive co-mingled the factor of
depletion of the OPSF fund with the factors of decline of the
price of crude oil in the world market and the stability of the
peso to the US dollar. On the basis of the text of E.O. No. 392,
it is impossible to determine the weight given by the
Executive department to the depletion of the OPSF fund. It
could well be the principal consideration for the early
deregulation. It could have been accorded an equal
significance. Or its importance could be nil. In light of this
uncertainty, we rule that the early deregulation under E.O.
No. 392 constitutes a misapplication of R.A. No. 8180.
We now come to grips with the contention that some
provisions of R.A. No. 8180 violate section 19 of Article XII of
the 1987 Constitution. These provisions are:
(1) Section 5 (b) which states "Any law to the contrary
notwithstanding and starting with the effectivity of this Act,
tariff duty shall be imposed and collected on imported crude
oil at the rate of three percent (3%) and imported refined
petroleum products at the rate of seven percent (7%) except
fuel oil and LPG, the rate for which shall be the same as that
for imported crude oil. Provided, that beginning on January 1,
2004 the tariff rate on imported crude oil and refined
petroleum products shall be the same. Provided, further, that
this provision may be amended only by an Act of Congress."
(2) Section 6 which states "To ensure the security and
continuity of petroleum crude and products supply, the DOE
shall require the refiners and importers to maintain a
minimum inventory equivalent to ten percent (10%) of their
respective annual sales volume or forty (40) days of supply,
whichever is lower," and
(3) Section 9 (b) which states "To ensure fair competition
and prevent cartels and monopolies in the downstream oil
industry, the following acts shall be prohibited:
xxx xxx xxx
(b) Predatory pricing which means selling or offering to sell
any product at a price unreasonably below the industry
average cost so as to attract customers to the detriment of
competitors.
On the other hand, section 19 of Article XII of the Constitution
allegedly violated by the aforestated provisions of R.A. No.
8180 mandates: "The State shall regulate or prohibit

monopolies when the public interest so requires. No

combinations in restraint of trade or unfair competition shall
be allowed."
A monopoly is a privilege or peculiar advantage vested in one
or more persons or companies, consisting in the exclusive
right or power to carry on a particular business or trade,
manufacture a particular article, or control the sale or the
whole supply of a particular commodity. It is a form of market
structure in which one or only a few firms dominate the total
sales of a product or service. 28 On the other hand, a
combination in restraint of trade is an agreement or
understanding between two or more persons, in the form of a
contract, trust, pool, holding company, or other form of
association, for the purpose of unduly restricting competition,
monopolizing trade and commerce in a certain commodity,
controlling its, production, distribution and price, or otherwise
interfering with freedom of trade without statutory
authority. 29 Combination in restraint of trade refers to the
means while monopoly refers to the end. 30
Article 186 of the Revised Penal Code and Article 28 of the
New Civil Code breathe life to this constitutional policy.
Article 186 of the Revised Penal Code penalizes
monopolization and creation of combinations in restraint of
trade, 31 while Article 28 of the New Civil Code makes any
person who shall engage in unfair competition liable for
damages. 32
Respondents aver that sections 5(b), 6 and 9(b) implement
the policies and objectives of R.A. No. 8180. They explain
that the 4% tariff differential is designed to encourage new
entrants to invest in refineries. They stress that the inventory
requirement is meant to guaranty continuous domestic
supply of petroleum and to discourage fly-by-night operators.
They also submit that the prohibition against predatory
pricing is intended to protect prospective entrants.
Respondents manifested to the Court that new players have
entered the Philippines after deregulation and have now
captured 3% 5% of the oil market.
The validity of the assailed provisions of R.A. No. 8180 has to
be decided in light of the letter and spirit of our Constitution,
especially section 19, Article XII. Beyond doubt, the
Constitution committed us to the free enterprise system but
it is a system impressed with its own distinctness. Thus, while

the Constitution embraced free enterprise as an economic

creed, it did not prohibit per se the operation of monopolies
which can, however, be regulated in the public
interest. 33 Thus too, our free enterprise system is not based
on a market of pure and unadulterated competition where
the State pursues a strict hands-off policy and follows the letthe-devil devour the hindmost rule. Combinations in restraint
of trade and unfair competitions are absolutely proscribed
and the proscription is directed both against the State as well
as the private sector. 34 This distinct free enterprise system is
dictated by the need to achieve the goals of our national
economy as defined by section 1, Article XII of the
Constitution which are: more equitable distribution of
opportunities, income and wealth; a sustained increase in the
amount of goods and services produced by the nation for the
benefit of the people; and an expanding productivity as the
key to raising the quality of life for all, especially the
underprivileged. It also calls for the State to protect Filipino
enterprises against unfair competition and trade practices.
Section 19, Article XII of our Constitution is anti-trust in
history and in spirit. It espouses competition. The desirability
of competition is the reason for the prohibition against
restraint of trade, the reason for the interdiction of unfair
competition, and the reason for regulation of unmitigated
monopolies. Competition is thus the underlying principle of
section 19, Article XII of our Constitution which cannot be
violated by R.A. No. 8180. We subscribe to the observation of
Prof. Gellhorn that the objective of anti-trust law is "to assure
a competitive economy, based upon the belief that through
competition producers will strive to satisfy consumer wants
at the lowest price with the sacrifice of the fewest resources.
Competition among producers allows consumers to bid for
goods and services, and thus matches their desires with
society's opportunity costs." 35 He adds with appropriateness
that there is a reliance upon "the operation of the 'market'
system (free enterprise) to decide what shall be produced,
how resources shall be allocated in the production process,
and to whom the various products will be distributed. The
market system relies on the consumer to decide what and
how much shall be produced, and on competition, among
producers to determine who will manufacture it."

Again, we underline in scarlet that the fundamental principle

espoused by section 19, Article XII of the Constitution is
competition for it alone can release the creative forces of the
market. But the competition that can unleash these creative
forces is competition that is fighting yet is fair. Ideally, this
kind of competition requires the presence of not one, not just
a few but several players. A market controlled by one player
(monopoly) or dominated by a handful of players (oligopoly)
is hardly the market where honest-to-goodness competition
will prevail. Monopolistic or oligopolistic markets deserve our
careful scrutiny and laws which barricade the entry points of
new players in the market should be viewed with suspicion.
Prescinding from these baseline propositions, we shall
proceed to examine whether the provisions of R.A. No. 8180
on tariff differential, inventory reserves, and predatory prices
imposed substantial barriers to the entry and exit of new
players in our downstream oil industry. If they do, they have
to be struck down for they will necessarily inhibit the
formation of a truly competitive market. Contrariwise, if they
are insignificant impediments, they need not be stricken
down.
In the cases at bar, it cannot be denied that our downstream
oil industry is operated and controlled by an oligopoly, a
foreign oligopoly at that. Petron, Shell and Caltex stand as
the only major league players in the oil market. All other
players belong to the lilliputian league. As the dominant
players, Petron, Shell and Caltex boast of existing refineries
of various capacities. The tariff differential of 4% therefore
works to their immense benefit. Yet, this is only one edge of
the tariff differential. The other edge cuts and cuts deep in
the heart of their competitors. It erects a high barrier to the
entry of new players. New players that intend to equalize the
market power of Petron, Shell and Caltex by building
refineries of their own will have to spend billions of pesos.
Those who will not build refineries but compete with them
will suffer the huge disadvantage of increasing their product
cost by 4%. They will be competing on an uneven field. The
argument that the 4% tariff differential is desirable because it
will induce prospective players to invest in refineries puts the
cart before the horse. The first need is to attract new players
and they cannot be attracted by burdening them with heavy
disincentives. Without new players belonging to the league of

Petron, Shell and Caltex, competition in our downstream oil

industry is an idle dream.
The provision on inventory widens the balance of advantage
of Petron, Shell and Caltex against prospective new players.
Petron, Shell and Caltex can easily comply with the inventory
requirement of R.A. No. 8180 in view of their existing storage
facilities. Prospective competitors again will find compliance
with this requirement difficult as it will entail a prohibitive
cost. The construction cost of storage facilities and the cost
of inventory can thus scare prospective players. Their net
effect is to further occlude the entry points of new players,
dampen competition and enhance the control of the market
by the three (3) existing oil companies.
Finally, we come to the provision on predatory pricing which
is defined as ". . . selling or offering to sell any product at a
price unreasonably below the industry average cost so as to
attract customers to the detriment of competitors."
Respondents contend that this provision works against
Petron, Shell and Caltex and protects new entrants. The ban
on predatory pricing cannot be analyzed in isolation. Its
validity is interlocked with the barriers imposed by R.A. No.
8180 on the entry of new players. The inquiry should be to
determine whether predatory pricing on the part of the
dominant oil companies is encouraged by the provisions in
the law blocking the entry of new players. Text-writer
Hovenkamp, 36 gives the authoritative answer and we quote:
xxx xxx xxx
The rationale for predatory pricing is the sustaining of losses
today that will give a firm monopoly profits in the future. The
monopoly profits will never materialize, however, if the
market is flooded with new entrants as soon as the
successful predator attempts to raise its price. Predatory
pricing will be profitable only if the market contains
significant barriers to new entry.
As aforediscsussed, the 4% tariff differential and the
inventory requirement are significant barriers which
discourage new players to enter the market. Considering
these significant barriers established by R.A. No. 8180 and
the lack of players with the comparable clout of PETRON,
SHELL and CALTEX, the temptation for a dominant player to
engage in predatory pricing and succeed is a chilling reality.

Petitioners' charge that this provision on predatory pricing is

anti-competitive is not without reason.
Respondents belittle these barriers with the allegation that
new players have entered the market since deregulation. A
scrutiny of the list of the alleged new players will, however,
reveal that not one belongs to the class and category of
PETRON, SHELL and CALTEX. Indeed, there is no showing that
any of these new players intends to install any refinery and
effectively compete with these dominant oil companies. In
any event, it cannot be gainsaid that the new players could
have been more in number and more impressive in might if
the illegal entry barriers in R.A. No. 8180 were not erected.
We come to the final point. We now resolve the total effect of
the untimely deregulation, the imposition of 4% tariff
differential on imported crude oil and refined petroleum
products, the requirement of inventory and the prohibition on
predatory pricing on the constitutionality of R.A. No. 8180.
The question is whether these offending provisions can be
individually struck down without invalidating the entire R.A.
No. 8180. The ruling case law is well stated by
author Agpalo, 37 viz.:
xxx xxx xxx
The general rule is that where part of a statute is void as
repugnant to the Constitution, while another part is valid, the
valid portion, if separable from the invalid, may stand and be
enforced. The presence of a separability clause in a statute
creates the presumption that the legislature intended
separability, rather than complete nullity of the statute. To
justify this result, the valid portion must be so far
independent of the invalid portion that it is fair to presume
that the legislature would have enacted it by itself if it had
supposed that it could not constitutionally enact the other.
Enough must remain to make a complete, intelligible and
valid statute, which carries out the legislative intent. . . .
The exception to the general rule is that when the parts of a
statute are so mutually dependent and connected, as
conditions, considerations, inducements, or compensations
for each other, as to warrant a belief that the legislature
intended them as a whole, the nullity of one part will vitiate
the rest. In making the parts of the statute dependent,
conditional, or connected with one another, the legislature
intended the statute to be carried out as a whole and would

not have enacted it if one part is void, in which case if some

parts are unconstitutional, all the other provisions thus
dependent, conditional, or connected must fall with them.
R.A. No. 8180 contains a separability clause. Section 23
provides that "if for any reason, any section or provision of
this Act is declared unconstitutional or invalid, such parts not
affected thereby shall remain in full force and effect." This
separability clause notwithstanding, we hold that the
offending provisions of R.A. No. 8180 so permeate its essence
that the entire law has to be struck down. The provisions on
tariff differential, inventory and predatory pricing are among
the principal props of R.A. No. 8180. Congress could not have
deregulated the downstream oil industry without these
provisions. Unfortunately, contrary to their intent, these
provisions on tariff differential, inventory and predatory
pricing inhibit fair competition, encourage monopolistic
power and interfere with the free interaction of market
forces. R.A. No. 8180 needs provisions to vouchsafe free and
fair competition. The need for these vouchsafing provisions
cannot be overstated. Before deregulation, PETRON, SHELL
and CALTEX had no real competitors but did not have a free
run of the market because government controls both the
pricing and non-pricing aspects of the oil industry. After
deregulation, PETRON, SHELL and CALTEX remain
unthreatened by real competition yet are no longer subject to
control by government with respect to their pricing and nonpricing decisions. The aftermath of R.A. No. 8180 is a
deregulated market where competition can be corrupted and
where market forces can be manipulated by oligopolies.
The fall out effects of the defects of R.A. No. 8180 on our
people have not escaped Congress. A lot of our leading
legislators have come out openly with bills seeking the repeal
of these odious and offensive provisions in R.A. No. 8180. In
the Senate, Senator Freddie Webb has filed S.B. No. 2133
which is the result of the hearings conducted by the Senate
Committee on Energy. The hearings revealed that (1) there
was a need to level the playing field for the new entrants in
the downstream oil industry, and (2) there was no law
punishing a person for selling petroleum products at
unreasonable prices. Senator Alberto G. Romulo also filed
S.B. No. 2209 abolishing the tariff differential beginning
January 1, 1998. He declared that the amendment ". . . would

mean that instead of just three (3) big oil companies there
will be other major oil companies to provide more
competitive prices for the market and the consuming
public." Senator Heherson T . Alvarez, one of the principal
proponents of R.A. No. 8180, also filed S.B. No. 2290
increasing the penalty for violation of its section 9. It is his
opinion as expressed in the explanatory note of the bill
that the present oil companies are engaged in cartelization
despite R.A. No. 8180,viz,:
xxx xxx xxx
Since the downstream oil industry was fully deregulated in
February 1997, there have been eight (8) fuel price
adjustments made by the three oil majors, namely: Caltex
Philippines, Inc.; Petron Corporation; and Pilipinas Shell
Petroleum Corporation. Very noticeable in the price
adjustments made, however, is the uniformity in the pump
prices of practically all petroleum products of the three oil
companies. This, despite the fact, that their selling rates
should be determined by a combination of any of the
following factors: the prevailing peso-dollar exchange rate at
the time payment is made for crude purchases, sources of
crude, and inventory levels of both crude and refined
petroleum products. The abovestated factors should have
resulted in different, rather than identical prices.
The fact that the three (3) oil companies' petroleum products
are uniformly priced suggests collusion, amounting to
cartelization, among Caltex Philippines, Inc., Petron
Corporation and Pilipinas Shell Petroleum Corporation to fix
the prices of petroleum products in violation of paragraph (a),
Section 9 of R.A. No. 8180.
To deter this pernicious practice and to assure that present
and prospective players in the downstream oil industry
conduct their business with conscience and propriety, cartellike activities ought to be severely penalized.
Senator Francisco S. Tatad also filed S.B. No. 2307 providing
for a uniform tariff rate on imported crude oil and refined
petroleum products. In the explanatory note of the bill, he
declared in no uncertain terms that ". . . the present setup has raised serious public concern over the way the three
oil companies have uniformly adjusted the prices of oil in the
country, an indication of a possible existence of a cartel or a
cartel-like situation within the downstream oil industry. This

situation is mostly attributed to the foregoing provision on

tariff differential, which has effectively discouraged the entry
of new players in the downstream oil industry."
In the House of Representatives, the moves to rehabilitate
R.A. No. 8180 are equally feverish. Representative Leopoldo
E. San Buenaventura has filed H.B. No. 9826 removing the
tariff differential for imported crude oil and imported refined
petroleum products. In the explanatory note of the bill, Rep.
Buenaventura explained:
xxx xxx xxx
As we now experience, this difference in tariff rates between
imported crude oil and imported refined petroleum
products, unwittingly provided a built-in-advantage for the
three existing oil refineries in the country and eliminating
competition which is a must in a free enterprise economy.
Moreover, it created a disincentive for other players to
engage even initially in the importation and distribution of
refined petroleum products and ultimately in the putting up
of refineries. This tariff differential virtually created a
monopoly of the downstream oil industry by the existing
three oil companies as shown by their uniform and capricious
pricing of their products since this law took effect, to the
great disadvantage of the consuming public.
Thus, instead of achieving the desired effects of deregulation,
that of free enterprise and a level playing field in the
downstream oil industry, R.A. 8180 has created an
environment conducive to cartelization, unfavorable,
increased, unrealistic prices of petroleum products in the
country by the three existing refineries.
Representative Marcial C. Punzalan, Jr., filed H.B. No. 9981 to
prevent collusion among the present oil companies by
strengthening the oversight function of the government,
particularly its ability to subject to a review any adjustment
in the prices of gasoline and other petroleum products. In the
explanatory note of the bill, Rep. Punzalan, Jr., said:
xxx xxx xxx
To avoid this, the proposed bill seeks to strengthen the
oversight function of government, particularly its ability to
review the prices set for gasoline and other petroleum
products. It grants the Energy Regulatory Board (ERB) the
authority to review prices of oil and other petroleum
products, as may be petitioned by a person, group or any

entity, and to subsequently compel any entity in the industry

to submit any and all documents relevant to the imposition of
new prices. In cases where the Board determines that there
exist collusion, economic conspiracy, unfair trade practice,
profiteering and/or overpricing, it may take any step
necessary to protect the public, including the readjustment of
the prices of petroleum products. Further, the Board may also
impose the fine and penalty of imprisonment, as prescribed
in Section 9 of R.A. 8180, on any person or entity from the oil
industry who is found guilty of such prohibited acts.
By doing all of the above, the measure will effectively provide
Filipino consumers with a venue where their grievances can
be heard and immediately acted upon by government.
Thus, this bill stands to benefit the Filipino consumer by
making the price-setting process more transparent and
making it easier to prosecute those who perpetrate such
prohibited acts as collusion, overpricing, economic
conspiracy and unfair trade.
Representative Sergio A.F . Apostol filed H.B. No. 10039 to
remedy an omission in R.A. No. 8180 where there is no
agency in government that determines what is "reasonable"
increase in the prices of oil products.Representative Dente
O. Tinga, one of the principal sponsors of R.A. No. 8180, filed
H.B. No. 10057 to strengthen its anti-trust provisions. He
elucidated in its explanatory note:
xxx xxx xxx
The definition of predatory pricing, however, needs to be
tightened up particularly with respect to the definitive
benchmark price and the specific anti-competitive intent. The
definition in the bill at hand which was taken from
the Areeda-Turner test in the United States on predatory
pricing resolves the questions. The definition reads,
"Predatory pricing means selling or offering to sell any oil
product at a price below the average variable cost for the
purpose of destroying competition, eliminating a competitor
or discouraging a competitor from entering the market."
The appropriate actions which may be resorted to under the
Rules of Court in conjunction with the oil deregulation law are
adequate. But to stress their availability and dynamism, it is
a good move to incorporate all the remedies in the law itself.
Thus, the present bill formalizes the concept of government
intervention and private suits to address the problem of

antitrust violations. Specifically, the government may file an

action to prevent or restrain any act of cartelization or
predatory pricing, and if it has suffered any loss or damage
by reason of the antitrust violation it may recover damages.
Likewise, a private person or entity may sue to prevent or
restrain any such violation which will result in damage to his
business or property, and if he has already suffered damage
he shall recover treble damages. A class suit may also be
allowed.
To make the DOE Secretary more effective in the
enforcement of the law, he shall be given additional powers
to gather information and to require reports.
Representative Erasmo B. Damasing filed H.B. No. 7885 and
has a more unforgiving view of R.A. No. 8180. He wants it
completely repealed. He explained:
xxx xxx xxx
Contrary to the projections at the time the bill on the
Downstream Oil Industry Deregulation was discussed and
debated upon in the plenary session prior to its approval into
law, there aren't any new players or investors in the oil
industry. Thus, resulting in practically a cartel or monopoly in
the oil industry by the three (3) big oil companies, Caltex,
Shell and Petron. So much so, that with the deregulation now
being partially implemented, the said oil companies have
succeeded in increasing the prices of most of their petroleum
products with little or no interference at all from the
government. In the month of August, there was an increase
of Fifty centavos (50) per liter by subsidizing the same with
the OPSF, this is only temporary as in March 1997, or a few
months from now, there will be full deregulation (Phase II)
whereby the increase in the prices of petroleum products will
be fully absorbed by the consumers since OPSF will already
be abolished by then. Certainly, this would make the lives of
our people, especially the unemployed ones, doubly difficult
and unbearable.
The much ballyhooed coming in of new players in the oil
industry is quite remote considering that these prospective
investors cannot fight the existing and well established oil
companies in the country today, namely, Caltex, Shell and
Petron. Even if these new players will come in, they will still
have no chance to compete with the said three (3) existing
big oil companies considering that there is an imposition of

oil tariff differential of 4% between importation of crude oil by

the said oil refineries paying only 3% tariff rate for the said
importation and 7% tariff rate to be paid by businessmen
who have no oil refineries in the Philippines but will import
finished petroleum/oil products which is being taxed with 7%
tariff rates.
So, if only to help the many who are poor from further
suffering as a result of unmitigated increase in oil products
due to deregulation, it is a must that the Downstream Oil
Industry Deregulation Act of 1996, or R.A. 8180 be repealed
completely.
Various resolutions have also been filed in the Senate calling
for an immediate and comprehensive review of R.A. No. 8180
to prevent the downpour of its ill effects on the people. Thus,
S. Res. No. 574 was filed by Senator Gloria
M. Macapagal entitled Resolution "Directing the Committee
on Energy to Inquire Into The Proper Implementation of the
Deregulation of the Downstream Oil Industry and Oil Tax
Restructuring As Mandated Under R.A. Nos. 8180 and 8184,
In Order to Make The Necessary Corrections In the Apparent
Misinterpretation Of The Intent And Provision Of The Laws
And Curb The Rising Tide Of Disenchantment Among The
Filipino Consumers And Bring About The Real Intentions And
Benefits Of The Said Law." Senator Blas P. Ople filed S. Res.
No. 664 entitled resolution "Directing the Committee on
Energy To Conduct An Inquiry In Aid Of Legislation To Review
The Government's Oil Deregulation Policy In Light Of The
Successive Increases In Transportation, Electricity And Power
Rates, As well As Of Food And Other Prime Commodities And
Recommend Appropriate Amendments To Protect The
Consuming Public." Senator Ople observed:
xxx xxx xxx
WHEREAS, since the passage of R.A. No. 8180, the Energy
Regulatory Board (ERB) has imposed successive increases in
oil prices which has triggered increases in electricity and
power rates, transportation fares, as well as in prices of food
and other prime commodities to the detriment of our people,
particularly the poor;
WHEREAS, the new players that were expected to compete
with the oil cartel-Shell, Caltex and Petron-have not come in;
WHEREAS, it is imperative that a review of the oil
deregulation policy be made to consider appropriate

amendments to the existing law such as an extension of the

transition phase before full deregulation in order to give the
competitive market enough time to develop;
WHEREAS, the review can include the advisability of
providing some incentives in order to attract the entry of new
oil companies to effect a dynamic competitive market;
WHEREAS, it may also be necessary to defer the setting up of
the institutional framework for full deregulation of the oil
industry as mandated under Executive Order No. 377 issued
by President Ramos last October 31, 1996 . . .
Senator Alberto G. Romulo filed S. Res. No. 769 entitled
resolution "Directing the Committees on Energy and Public
Services In Aid Of Legislation To Assess The Immediate
Medium And Long Term Impact of Oil Deregulation On Oil
Prices And The Economy." Among the reasons for the
resolution is the finding that "the requirement of a 40-day
stock inventory effectively limits the entry of other oil firms
in the market with the consequence that instead of going
down oil prices will rise."
Parallel resolutions have been filed in the House of
Representatives. Representative Dante O. Tinga filed H. Res.
No. 1311 "Directing The Committee on Energy To Conduct An
Inquiry, In Aid of Legislation, Into The Pricing Policies And
Decisions Of The Oil Companies Since The Implementation of
Full Deregulation Under the Oil Deregulation Act (R.A. No.
8180) For the Purpose of Determining In the Context Of The
Oversight Functions Of Congress Whether The Conduct Of
The Oil Companies, Whether Singly Or Collectively,
Constitutes Cartelization Which Is A Prohibited Act Under R.A.
No. 8180, And What Measures Should Be Taken To Help
Ensure The Successful Implementation Of The Law In
Accordance With Its Letter And Spirit, Including
Recommending Criminal Prosecution Of the Officers
Concerned Of the Oil Companies If Warranted By The
Evidence, And For Other Purposes." Representatives Marcial
C. Punzalan, Jr. Dante O. Tinga and Antonio E. Bengzon
III filed H.R. No. 894 directing the House Committee on
Energy to inquire into the proper implementation of the
deregulation of the downstream oil industry. House
Resolution No. 1013 was also filed by Representatives Edcel
C. Lagman, Enrique T . Garcia, Jr. and Joker P. Arroyo urging

the President to immediately suspend the implementation of

E.O. No. 392.
In recent memory there is no law enacted by the legislature
afflicted with so much constitutional deformities as R.A. No.
8180. Yet, R.A. No. 8180 deals with oil, a commodity whose
supply and price affect the ebb and flow of the lifeblood of
the nation. Its shortage of supply or a slight, upward spiral in
its price shakes our economic foundation. Studies show that
the areas most impacted by the movement of oil are food
manufacture, land transport, trade, electricity and
water. 38 At a time when our economy is in a dangerous
downspin, the perpetuation of R.A. No. 8180 threatens to
multiply the number of our people with bent backs and
begging bowls. R.A. No. 8180 with its anti-competition
provisions cannot be allowed by this Court to stand even
while Congress is working to remedy its defects.
The Court, however, takes note of the plea of PETRON, SHELL
and CALTEX to lift our restraining order to enable them to
adjust upward the price of petroleum and petroleum products
in view of the plummeting value of the peso. Their plea,
however, will now have to be addressed to the Energy
Regulatory Board as the effect of the declaration of
unconstitutionality of R.A. No. 8180 is to revive the former
laws it repealed. 39 The length of our return to the regime of
regulation depends on Congress which can fasttrack the
writing of a new law on oil deregulation in accord with the
Constitution.
With this Decision, some circles will chide the Court for
interfering with an economic decision of Congress. Such
criticism is charmless for the Court is annulling R.A. No. 8180
not because it disagrees with deregulation as an economic
policy but because as cobbled by Congress in its present
form, the law violates the Constitution. The right call therefor
should be for Congress to write a new oil deregulation law
that conforms with the Constitution and not for this Court to
shirk its duty of striking down a law that offends the
Constitution. Striking down R.A. No. 8180 may cost losses in
quantifiable terms to the oil oligopolists. But the loss in
tolerating the tampering of our Constitution is not
quantifiable in pesos and centavos. More worthy of protection
than the supra-normal profits of private corporations is the
sanctity of the fundamental principles of the Constitution.

Indeed when confronted by a law violating the Constitution,

the Court has no option but to strike it down dead. Lest it is
missed, the Constitution is a covenant that grants and
guarantees both the political and economic rights of the
people. The Constitution mandates this Court to be the
guardian not only of the people's political rights but their
economic rights as well. The protection of the economic
rights of the poor and the powerless is of greater importance
to them for they are concerned more with the exoterics of
living and less with the esoterics of liberty. Hence, for as long
as the Constitution reigns supreme so long will this Court be
vigilant in upholding the economic rights of our people
especially from the onslaught of the powerful. Our defense of
the people's economic rights may appear heartless because
it cannot be half-hearted.
IN VIEW WHEREOF, the petitions are granted. R.A. No. 8180 is
declared unconstitutional and E.O. No. 372 void.
SO ORDERED.
Regalado, Davide, Jr., Romero, Bellosillo and Vitug, JJ., concur.
Mendoza, J., concurs in the result.
Narvasa, C.J., is on leave.

EN BANC
ROMEO P. GEROCHI, KATULONG
NG BAYAN (KB) and
ENVIRONMENTALIST CONSUMERS
NETWORK, INC. (ECN),
Petitioners,
-versusDEPARTMENT OF ENERGY (DOE),
ENERGY REGULATORY

G.R. No. 159796

Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,

COMMISSION (ERC), NATIONAL

POWER CORPORATION (NPC),
POWER SECTOR ASSETS AND
LIABILITIES MANAGEMENT
GROUP (PSALM Corp.),
STRATEGIC POWER UTILITIES
GROUP (SPUG),
and PANAYELECTRIC COMPANY
INC. (PECO),
Respondents.

CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, JR. and
NACHURA, JJ.
Promulgated:

July 17, 2007

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -----------x
DECISION

(a) Payment for the stranded debts[4] in excess of the amount

assumed by the National Government and stranded contract
costs of NPC[5] and as well as qualified stranded contract
costs of distribution utilities resulting from the restructuring
of the industry;
(b) Missionary electrification;[6]
(c) The equalization of the taxes and royalties applied to
indigenous or renewable sources of energy vis--vis imported
energy fuels;
(d) An environmental charge equivalent to one-fourth of one
centavo per kilowatt-hour (P0.0025/kWh), which shall accrue
to an environmental fund to be used solely for watershed
rehabilitation and management. Said fund shall be managed
by NPC under existing arrangements; and

NACHURA, J.:

(e) A charge to account for all forms of cross-subsidies for a

period not exceeding three (3) years.

Petitioners Romeo P. Gerochi, Katulong Ng Bayan (KB), and

Environmentalist Consumers Network, Inc. (ECN)
(petitioners), come before this Court in this original action
praying that Section 34 of Republic Act (RA) 9136, otherwise
known as the Electric Power Industry Reform Act of 2001
(EPIRA), imposing the Universal Charge,[1] and Rule 18 of the
Rules and Regulations (IRR)[2] which seeks to implement the
said imposition, be declared unconstitutional. Petitioners also
pray that the Universal Charge imposed upon the consumers
be refunded and that a preliminary injunction and/or
temporary restraining order (TRO) be issued directing the
respondents to refrain from implementing, charging, and
collecting the said charge.[3] The assailed provision of law
reads:

The universal charge shall be a non-bypassable charge which

shall be passed on and collected from all end-users on a
monthly basis by the distribution utilities. Collections by the
distribution utilities and the TRANSCO in any given month
shall be remitted to the PSALM Corp. on or before the
fifteenth (15th) of the succeeding month, net of any amount
due to the distribution utility. Any end-user or self-generating
entity not connected to a distribution utility shall remit its
corresponding universal charge directly to the TRANSCO. The
PSALM Corp., as administrator of the fund, shall create a
Special Trust Fund which shall be disbursed only for the
purposes specified herein in an open and transparent
manner. All amount collected for the universal charge shall
be distributed to the respective beneficiaries within a
reasonable period to be provided by the ERC.

SECTION 34. Universal Charge. Within one (1) year from the
effectivity of this Act, a universal charge to be determined,
fixed and approved by the ERC, shall be imposed on all
electricity end-users for the following purposes:

The Facts
Congress enacted the EPIRA on June 8, 2001; on June 26,
2001, it took effect.[7]

On April 5, 2002, respondent National Power CorporationStrategic Power Utilities Group[8] (NPC-SPUG) filed with
respondent Energy Regulatory Commission (ERC) a petition
for the availment from the Universal Charge of its share for
Missionary Electrification, docketed as ERC Case No. 2002165.[9]

managed by PSALM as its share from the Universal Charge

for Missionary Electrification (UC-ME) effective on the
following billing cycles:
(a) June 26-July 25, 2003 for National Transmission
Corporation (TRANSCO); and
(b) July 2003 for Distribution Utilities (Dus).

On May 7, 2002, NPC filed another petition with ERC,

docketed as ERC Case No. 2002-194, praying that the
proposed share from the Universal Charge for the
Environmental charge of P0.0025 per kilowatt-hour (/kWh), or
a total of P119,488,847.59, be approved for withdrawal from
the Special
Trust Fund (STF) managed by respondent Power Sector Asset
s and

Relative thereto, TRANSCO and Dus are directed to collect

the UC-ME in the amount of P0.0373 per kilowatt-hour and
remit the same to PSALM on or before the 15th day of the
succeeding month.

Liabilities Management Group (PSALM)[10] for the

rehabilitation and management of watershed areas. [11]

Let copies of this Order be furnished petitioner NPC-SPUG

and all distribution utilities (Dus).

On December 20, 2002, the ERC issued an Order [12] in ERC

Case No. 2002-165 provisionally approving the computed
amount of P0.0168/kWh as the share of the NPC-SPUG from
the Universal Charge for Missionary Electrification and
authorizing the National Transmission Corporation (TRANSCO)
and Distribution Utilities to collect the same from its endusers on a monthly basis.

SO ORDERED.

On June 26, 2003, the ERC rendered its Decision [13] (for ERC
Case No. 2002-165) modifying its Order of December 20,
2002, thus:

WHEREFORE, the foregoing premises considered, the Motion

for Reconsideration filed by petitioner National Power
Corporation-Small Power Utilities Group (NPC-SPUG) is hereby
GRANTED. Accordingly, the Decision dated June 26, 2003 is
hereby modified accordingly.

WHEREFORE, the foregoing premises considered, the

provisional authority granted to petitioner National Power
Corporation-Strategic Power Utilities Group (NPC-SPUG) in the
Order dated December 20, 2002 is hereby modified to the
effect that an additional amount of P0.0205 per kilowatt-hour
should be added to the P0.0168 per kilowatt-hour
provisionally authorized by the Commission in the said Order.
Accordingly, a total amount of P0.0373 per kilowatt-hour is
hereby APPROVED for withdrawal from the Special Trust Fund

In the meantime, NPC-SPUG is directed to submit, not later

than April 30, 2004, a detailed report to include Audited
Financial Statements and physical status (percentage of
completion) of the projects using the prescribed format.

On August 13, 2003, NPC-SPUG filed a Motion for

Reconsideration asking the ERC, among others, [14] to set
aside the above-mentioned Decision, which the ERC granted
in its Order dated October 7, 2003, disposing:

Relative thereto, NPC-SPUG is directed to submit a quarterly

report on the following:
1.
2.
3.
4.

Projects for CY 2002 undertaken;

Location
Actual amount utilized to complete the project;
Period of completion;

5.
Start of Operation; and
6.
Explanation of the reallocation of UC-ME funds, if any.
SO ORDERED.[15]
Meanwhile, on April 2, 2003, ERC decided ERC Case No.
2002-194, authorizing the NPC to draw up to P70,000,000.00
from PSALM for its 2003 Watershed Rehabilitation Budget
subject to the availability of funds for the Environmental Fund
component of the Universal Charge.[16]
On the basis of the said ERC decisions, respondent Panay
Electric Company, Inc. (PECO) charged petitioner Romeo P.
Gerochi and all other
end-users with the Universal Charge as reflected in their
respective electric bills starting from the month of July 2003.
[17]

Hence, this original action.

Petitioners submit that the assailed provision of law and its
IRR which sought to implement the same are unconstitutional
on the following grounds:
1)
The universal charge provided for under Sec. 34 of the
EPIRA and sought to be implemented under Sec. 2, Rule 18 of
the IRR of the said law is a tax which is to be collected from
all electric end-users and self-generating entities. The power
to tax is strictly a legislative function and as such, the
delegation of said power to any executive or administrative
agency like the ERC is unconstitutional, giving the same
unlimited authority. The assailed provision clearly provides
that the Universal Charge is to be determined, fixed and
approved by the ERC, hence leaving to the latter complete
discretionary legislative authority.
2)
The ERC is also empowered to approve and determine
where the funds collected should be used.
3)
The imposition of the Universal Charge on all end-users
is oppressive and confiscatory and amounts to taxation

without representation as the consumers were not given a

chance to be heard and represented.[18]
Petitioners contend that the Universal Charge has the
characteristics of a tax and is collected to fund the
operations of the NPC. They argue that the cases[19] invoked
by the respondents clearly show the regulatory purpose of
the charges imposed therein, which is not so in the case at
bench. In said cases, the respective funds [20] were created in
order to balance and stabilize the prices of oil and sugar, and
to act as buffer to counteract the changes and adjustments
in prices, peso devaluation, and other variables which cannot
be adequately and timely monitored by the legislature. Thus,
there was a need to delegate powers to administrative
bodies.[21] Petitioners posit that the Universal Charge is
imposed not for a similar purpose.
On the other hand, respondent PSALM through the Office of
the Government Corporate Counsel (OGCC) contends that
unlike a tax which is imposed to provide income for public
purposes, such as support of the government, administration
of the law, or payment of public expenses, the assailed
Universal Charge is levied for a specific regulatory purpose,
which is to ensure the viability of the country's electric power
industry. Thus, it is exacted by the State in the exercise of its
inherent police power. On this premise, PSALM submits that
there is no undue delegation of legislative power to the ERC
since the latter merely exercises a limited authority or
discretion as to the execution and implementation of the
provisions of the EPIRA.[22]
Respondents Department of Energy (DOE), ERC, and NPC,
through the Office of the Solicitor General (OSG), share the
same view that the Universal Charge is not a tax because it is
levied for a specific regulatory purpose, which is to ensure
the viability of the country's electric power industry, and is,
therefore, an exaction in the exercise of the State's police
power. Respondents further contend that said Universal
Charge does not possess the essential characteristics of a
tax, that its imposition would redound to the benefit of the
electric power industry and not to the public, and that its rate
is uniformly levied on electricity end-users, unlike a tax which

is imposed based on the individual taxpayer's ability to pay.

Moreover, respondents deny that there is undue delegation
of legislative power to the ERC since the EPIRA sets forth
sufficient determinable standards which would guide the ERC
in the exercise of the powers granted to it. Lastly,
respondents argue that the imposition of the Universal
Charge is not oppressive and confiscatory since it is an
exercise of the police power of the State and it complies with
the requirements of due process.[23]

the imposition of the Universal Charge as reflected in their

electric bills.

On its part, respondent PECO argues that it is duty-bound to

collect and remit the amount pertaining to the Missionary
Electrification and Environmental Fund components of the
Universal Charge, pursuant to Sec. 34 of the EPIRA and the
Decisions in ERC Case Nos. 2002-194 and 2002165. Otherwise, PECO could be held liable under Sec. 46 [24] of
the EPIRA, which imposes fines and penalties for any
violation of its provisions or its IRR.[25]

Article VIII, Section 5(1) and (2) of the 1987

Constitution[27] categorically provides that:

The Issues

However, petitioners violated the doctrine of hierarchy of

courts when they filed this Complaint directly with
us. Furthermore, the Complaint is bereft of any allegation of
grave abuse of discretion on the part of the ERC or any of the
public respondents, in order for the Court to consider it as a
petition for certiorari or prohibition.

SECTION 5. The Supreme Court shall have the following

powers:
1.
Exercise original jurisdiction over cases affecting
ambassadors, other public ministers and consuls, and
over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
2.
Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the rules of court may provide, final
judgments and orders of lower courts in:

The ultimate issues in the case at bar are:

1)
Whether or not, the Universal Charge imposed under
Sec. 34 of the EPIRA is a tax; and

(a) All cases in which the constitutionality or validity of any

treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.

2)
Whether or not there is undue delegation of legislative
power to tax on the part of the ERC.[26]
Before we discuss the issues, the Court shall first deal with
an obvious procedural lapse.
Petitioners filed before us an original action particularly
denominated as a Complaint assailing the constitutionality of
Sec. 34 of the EPIRA imposing the Universal Charge and Rule
18 of the EPIRA's IRR. No doubt, petitioners have locus
standi. They impugn the constitutionality of Sec. 34 of the
EPIRA because they sustained a direct injury as a result of

But this Court's jurisdiction to issue writs of certiorari,

prohibition, mandamus, quo warranto, and habeas corpus,
while concurrent with that of the regional trial courts and the
Court of Appeals, does not give litigants unrestrained
freedom of choice of forum from which to seek such relief.
[28]
It has long been established that this Court will not
entertain direct resort to it unless the redress desired cannot
be obtained in the appropriate courts, or where exceptional
and compelling circumstances justify availment of a remedy
within and call for the exercise of our primary jurisdiction.
[29]
This circumstance alone warrants the outright dismissal of
the present action.

This procedural infirmity notwithstanding, we opt to resolve

the constitutional issue raised herein. We are aware that if
the constitutionality of Sec. 34 of the EPIRA is not resolved
now, the issue will certainly resurface in the near future,
resulting in a repeat of this litigation, and probably involving
the same parties. In the public interest and to avoid
unnecessary delay, this Court renders its ruling now.
The instant complaint is bereft of merit.
The First Issue
To resolve the first issue, it is necessary to distinguish the
States power of taxation from the police power.
The power to tax is an incident of sovereignty and is
unlimited in its range, acknowledging in its very nature no
limits, so that security against its abuse is to be found only in
the responsibility of the legislature which imposes the tax on
the constituency that is to pay it.[30] It is based on the
principle that taxes are the lifeblood of the government, and
their prompt and certain availability is an imperious need.
[31]
Thus, the theory behind the exercise of the power to tax
emanates from necessity; without taxes, government cannot
fulfill its mandate of promoting the general welfare and wellbeing of the people.[32]
On the other hand, police power is the power of the state to
promote public welfare by restraining and regulating the use
of liberty and property.[33] It is the most pervasive, the least
limitable, and the most demanding of the three fundamental
powers of the State. The justification is found in the Latin
maxims salus populi est suprema lex (the welfare of the
people is the supreme law) and sic utere tuo ut alienum non
laedas (so use your property as not to injure the property of
others). As an inherent attribute of sovereignty which
virtually extends to all public needs, police power grants a
wide panoply of instruments through which the State,
as parens patriae, gives effect to a host of its regulatory
powers.[34] We have held that the power to "regulate" means
the power to protect, foster, promote, preserve, and control,

with due regard for the interests, first and foremost, of the
public, then of the utility and of its patrons. [35]
The conservative and pivotal distinction between these two
powers rests in the purpose for which the charge is made. If
generation of revenue is the primary purpose and regulation
is merely incidental, the imposition is a tax; but if regulation
is the primary purpose, the fact that revenue is incidentally
raised does not make the imposition a tax.[36]
In exacting the assailed Universal Charge through Sec. 34 of
the EPIRA, the State's police power, particularly its regulatory
dimension, is invoked. Such can be deduced from Sec. 34
which enumerates the purposes for which the Universal
Charge is imposed[37] and which can be amply discerned as
regulatory in character. The EPIRA resonates such regulatory
purposes, thus:
SECTION 2. Declaration of Policy. It is hereby declared the
policy of the State:
(a) To ensure and accelerate the total electrification of the
country;
(b) To ensure the quality, reliability, security and affordability
of the supply of electric power;
(c) To ensure transparent and reasonable prices of electricity
in a regime of free and fair competition and full public
accountability to achieve greater operational and economic
efficiency and enhance the competitiveness of Philippine
products in the global market;
(d) To enhance the inflow of private capital and broaden the
ownership base of the power generation, transmission and
distribution sectors;
(e) To ensure fair and non-discriminatory treatment of public
and private sector entities in the process of restructuring the
electric power industry;
(f) To protect the public interest as it is affected by the rates
and services of electric utilities and other providers of electric
power;
(g) To assure socially and environmentally compatible energy
sources and infrastructure;

(h) To promote the utilization of indigenous and new and

renewable energy resources in power generation in order to
reduce dependence on imported energy;
(i) To provide for an orderly and transparent privatization of
the assets and liabilities of the National Power Corporation
(NPC);
(j) To establish a strong and purely independent regulatory
body and system to ensure consumer protection and
enhance the competitive operation of the electricity market;
and
(k) To encourage the efficient use of energy and other
modalities of demand side management.
From the aforementioned purposes, it can be gleaned that
the assailed Universal Charge is not a tax, but an exaction in
the exercise of the State's police power. Public welfare is
surely promoted.
Moreover, it is a well-established doctrine that the taxing
power may be used as an implement of police power.
[38]
In Valmonte v. Energy Regulatory Board, et al.[39] and
in Gaston v. Republic Planters Bank,[40] this Court held that
the Oil Price Stabilization Fund (OPSF) and the Sugar
Stabilization Fund (SSF) were exactions made in the exercise
of the police power. The doctrine was reiterated in Osmea v.
Orbos[41] with respect to the OPSF. Thus, we disagree with
petitioners that the instant case is different from the
aforementioned cases. With the Universal Charge, a Special
Trust Fund (STF) is also created under the administration of
PSALM.[42] The STF has some notable characteristics similar to
the OPSF and the SSF, viz.:
1)
In the implementation of stranded cost recovery, the
ERC shall conduct a review to determine whether there is
under-recovery or over recovery and adjust (true-up) the
level of the stranded cost recovery charge. In case of an
over-recovery, the ERC shall ensure that any excess amount
shall be remitted to the STF. A separate account shall be
created for these amounts which shall be held in trust for any
future claims of distribution utilities for stranded cost
recovery. At the end of the stranded cost recovery period,

any remaining amount in this account shall be used to reduce

the electricity rates to the end-users. [43]
2)
With respect to the assailed Universal Charge, if the
total amount collected for the same is greater than the actual
availments against it, the PSALM shall retain the balance
within the STF to pay for periods where a shortfall occurs. [44]
3)
Upon expiration of the term of PSALM, the
administration of the STF shall be transferred to the DOF or
any of the DOF attached agencies as designated by the DOF
Secretary.[45]

The OSG is in point when it asseverates:

Evidently, the establishment and maintenance of the Special
Trust Fund, under the last paragraph of Section 34, R.A. No.
9136, is well within the pervasive and non-waivable power
and responsibility of the government to secure the physical
and economic survival and well-being of the community, that
comprehensive sovereign authority we designate as the
police power of the State.[46]
This feature of the Universal Charge further boosts the
position that the same is an exaction imposed primarily in
pursuit of the State's police objectives. The STF reasonably
serves and assures the attainment and perpetuity of the
purposes for which the Universal Charge is imposed, i.e., to
ensure the viability of the country's electric power industry.
The Second Issue
The principle of separation of powers ordains that each of the
three branches of government has exclusive cognizance of
and is supreme in matters falling within its own
constitutionally allocated sphere. A logical corollary to the
doctrine of separation of powers is the principle of nondelegation of powers, as expressed in the Latin
maxim potestas delegata non delegari potest (what has been

delegated cannot be delegated). This is based on the ethical

principle that such delegated power constitutes not only a
right but a duty to be performed by the delegate through the
instrumentality of his own judgment and not through the
intervening mind of another. [47]
In the face of the increasing complexity of modern life,
delegation of legislative power to various specialized
administrative agencies is allowed as an exception to this
principle.[48] Given the volume and variety of interactions in
today's society, it is doubtful if the legislature can
promulgate laws that will deal adequately with and respond
promptly to the minutiae of everyday life. Hence, the need to
delegate to administrative bodies - the principal agencies
tasked to execute laws in their specialized fields - the
authority to promulgate rules and regulations to implement a
given statute and effectuate its policies. All that is required
for the valid exercise of this power of subordinate legislation
is that the regulation be germane to the objects and
purposes of the law and that the regulation be not in
contradiction to, but in conformity with, the standards
prescribed by the law. These requirements are denominated
as the completeness test and the sufficient standard test.
Under the first test, the law must be complete in all its terms
and conditions when it leaves the legislature such that when
it reaches the delegate, the only thing he will have to do is to
enforce it. The second test mandates adequate guidelines or
limitations in the law to determine the boundaries of the
delegate's authority and prevent the delegation from running
riot.[49]
The Court finds that the EPIRA, read and appreciated in its
entirety, in relation to Sec. 34 thereof, is complete in all its
essential terms and conditions, and that it contains sufficient
standards.
Although Sec. 34 of the EPIRA merely provides that within
one (1) year from the effectivity thereof, a Universal Charge
to be determined, fixed and approved by the ERC, shall be
imposed on all electricity end-users, and therefore, does not
state the specific amount to be paid as Universal Charge, the

amount nevertheless is made certain by the legislative

parameters provided in the law itself.For one, Sec. 43(b)(ii) of
the EPIRA provides:
SECTION 43. Functions of the ERC. The ERC shall promote
competition, encourage market development, ensure
customer choice and penalize abuse of market power in the
restructured electricity industry. In appropriate cases, the
ERC is authorized to issue cease and desist order after due
notice and hearing. Towards this end, it shall be responsible
for the following key functions in the restructured industry:
xxxx
(b) Within six (6) months from the effectivity of this Act,
promulgate and enforce, in accordance with law, a National
Grid Code and a Distribution Code which shall include, but
not limited to the following:
xxxx
(ii) Financial capability standards for the generating
companies, the TRANSCO, distribution utilities and suppliers:
Provided, That in the formulation of the financial capability
standards, the nature and function of the entity shall be
considered: Provided, further, That such standards are set to
ensure that the electric power industry participants meet the
minimum financial standards to protect the public interest.
Determine, fix, and approve, after due notice and public
hearings the universal charge, to be imposed on all electricity
end-users pursuant to Section 34 hereof;

Moreover, contrary to the petitioners contention, the ERC

does not enjoy a wide latitude of discretion in the
determination of the Universal Charge. Sec. 51(d) and (e) of
the EPIRA[50] clearly provides:

SECTION 51. Powers. The PSALM Corp. shall, in the

performance of its functions and for the attainment of its
objective, have the following powers:
xxxx
(d) To calculate the amount of the stranded debts and
stranded contract costs of NPC which shall form the basis
for ERC in the determination of the universal charge;
(e) To liquidate the NPC stranded contract costs, utilizing the
proceeds from sales and other property contributed to it,
including the proceeds from the universal charge.

Thus, the law is complete and passes the first test for valid
delegation of legislative power.
As to the second test, this Court had, in the past, accepted as
sufficient standards the following: "interest of law and
order;"[51] "adequate and efficient instruction;"[52] "public
interest;"[53] "justice and equity;"[54] "public convenience and
welfare;"[55] "simplicity, economy and
efficiency;"[56] "standardization and regulation of medical
education;"[57] and "fair and equitable employment
practices."[58] Provisions of the EPIRA such as, among others,
to ensure the total electrification of the country and the
quality, reliability, security and affordability of the supply of
electric power[59] and watershed rehabilitation and
management[60] meet the requirements for valid delegation,
as they provide the limitations on the ERCs power to
formulate the IRR. These are sufficient standards.
It may be noted that this is not the first time that the ERC's
conferred powers were challenged. In Freedom from Debt
Coalition v. Energy Regulatory Commission,[61] the Court had
occasion to say:

In determining the extent of powers possessed by the ERC,

the provisions of the EPIRA must not be read in separate
parts. Rather, the law must be read in its entirety, because a
statute is passed as a whole, and is animated by one general
purpose and intent. Its meaning cannot to be extracted from
any single part thereof but from a general consideration of
the statute as a whole. Considering the intent of Congress in
enacting the EPIRA and reading the statute in its entirety, it is
plain to see that the law has expanded the jurisdiction of the
regulatory body, the ERC in this case, to enable the latter to
implement the reforms sought to be accomplished by the
EPIRA. When the legislators decided to broaden the
jurisdiction of the ERC, they did not intend to abolish or
reduce the powers already conferred upon ERC's
predecessors. To sustain the view that the ERC possesses
only the powers and functions listed under Section 43 of the
EPIRA is to frustrate the objectives of the law.
In his Concurring and Dissenting Opinion [62] in the same case,
then Associate Justice, now Chief Justice, Reynato S. Puno
described the immensity of police power in relation to the
delegation of powers to the ERC and its regulatory functions
over electric power as a vital public utility, to wit:
Over the years, however, the range of police power was no
longer limited to the preservation of public health, safety and
morals, which used to be the primary social interests in
earlier times. Police power now requires the State to
"assume an affirmative duty to eliminate the excesses and
injustices that are the concomitants of an unrestrained
industrial economy." Police power is now exerted "to further
the public welfare a concept as vast as the good of society
itself." Hence, "police power is but another name for the
governmental authority to further the welfare of society that
is the basic end of all government." When police power is
delegated to administrative bodies with regulatory functions,
its exercise should be given a wide latitude. Police power
takes on an even broader dimension in developing countries
such as ours, where the State must take a more active role in
balancing the many conflicting interests in society. The
Questioned Order was issued by the ERC, acting as an agent

of the State in the exercise of police power. We should have

exceptionally good grounds to curtail its exercise. This
approach is more compelling in the field of rate-regulation of
electric power rates. Electric power generation and
distribution is a traditional instrument of economic growth
that affects not only a few but the entire nation. It is an
important factor in encouraging investment and promoting
business. The engines of progress may come to a screeching
halt if the delivery of electric power is impaired. Billions of
pesos would be lost as a result of power outages or
unreliable electric power services. The State thru the ERC
should be able to exercise its police power with great
flexibility, when the need arises.

This was reiterated in National Association of Electricity

Consumers for Reforms v. Energy Regulatory
Commission[63] where the Court held that the ERC, as
regulator, should have sufficient power to respond in real
time to changes wrought by multifarious factors affecting
public utilities.
From the foregoing disquisitions, we therefore hold that there
is no undue delegation of legislative power to the ERC.
Petitioners failed to pursue in their Memorandum the
contention in the Complaint that the imposition of the
Universal Charge on all end-users is oppressive and
confiscatory, and amounts to taxation without
representation. Hence, such contention is deemed waived or
abandoned per Resolution[64] of August 3, 2004.[65] Moreover,
the determination of whether or not a tax is excessive,
oppressive or confiscatory is an issue which essentially
involves questions of fact, and thus, this Court is precluded
from reviewing the same.[66]
As a penultimate statement, it may be well to recall what this
Court said of EPIRA:

One of the landmark pieces of legislation enacted by

Congress in recent years is the EPIRA. It established a new
policy, legal structure and regulatory framework for the
electric power industry. The new thrust is to tap private
capital for the expansion and improvement of the industry as
the large government debt and the highly capital-intensive
character of the industry itself have long been acknowledged
as the critical constraints to the program. To attract private
investment, largely foreign, the jaded structure of the
industry had to be addressed. While the generation and
transmission sectors were centralized and monopolistic, the
distribution side was fragmented with over 130 utilities,
mostly small and uneconomic. The pervasive flaws have
caused a low utilization of existing generation capacity;
extremely high and uncompetitive power rates; poor quality
of service to consumers; dismal to forgettable performance
of the government power sector; high system losses; and an
inability to develop a clear strategy for overcoming these
shortcomings.
Thus, the EPIRA provides a framework for the restructuring of
the industry, including the privatization of the assets of the
National Power Corporation (NPC), the transition to a
competitive structure, and the delineation of the roles of
various government agencies and the private entities. The
law ordains the division of the industry into four (4) distinct
sectors, namely: generation, transmission, distribution and su
pply.
Corollarily, the NPC generating plants have to privatized and
its transmission business spun off and privatized thereafter.
[67]

Finally, every law has in its favor the presumption of

constitutionality, and to justify its nullification, there must be
a clear and unequivocal breach of the Constitution and not
one that is doubtful, speculative, or argumentative.
[68]
Indubitably, petitioners failed to overcome this
presumption in favor of the EPIRA. We find no clear violation
of the Constitution which would warrant a pronouncement

that Sec. 34 of the EPIRA and Rule 18 of its IRR are

unconstitutional and void.
WHEREFORE, the instant case is hereby DISMISSED for lack
of merit.

SO ORDERED.