EN BANC

LOUIS BAROK C. BIRAOGO, G.R. No. 192935

Petitioner,

- versus -

THE PHILIPPINE TRUTH

COMMISSION OF 2010,
Respondent.
x-----------------------x
REP. EDCEL C. LAGMAN, G.R. No. 193036
REP. RODOLFO B. ALBANO, JR., REP.
SIMEON A. DATUMANONG, and REP. Present:
ORLANDO B. FUA, SR.,
Petitioners, CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
- versus - NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
EXECUTIVE SECRETARY PAQUITO MENDOZA, and
N. OCHOA, JR. and DEPARTMENT OF SERENO, JJ.
BUDGET AND MANAGEMENT
SECRETARY FLORENCIO B. ABAD, Promulgated:
Respondents.
December 7, 2010

x -------------------------------------------------------------------------------------- x

DECISION

MENDOZA, J.:
 When the judiciary mediates to allocate constitutional boundaries, it does
not assert any superiority over the other departments; it does not in reality nullify
or invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them.

--- Justice Jose P. Laurel[1]

The role of the Constitution cannot be overlooked. It is through the Constitution that the
fundamental powers of government are established, limited and defined, and by which these
powers are distributed among the several departments.[2] The Constitution is the basic and
paramount law to which all other laws must conform and to which all persons, including the
highest officials of the land, must defer.[3] Constitutional doctrines must remain steadfast no
matter what may be the tides of time. It cannot be simply made to sway and accommodate the
call of situations and much more tailor itself to the whims and caprices of government and the
people who run it.[4]

For consideration before the Court are two consolidated cases[5] both of which essentially assail
the validity and constitutionality of Executive Order No. 1, dated July 30, 2010, entitled Creating
the Philippine Truth Commission of 2010.

The first case is G.R. No. 192935, a special civil action for prohibition instituted by
petitioner Louis Biraogo (Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails
Executive Order No. 1 for being violative of the legislative power of Congress under Section 1,
Article VI of the Constitution[6] as it usurps the constitutional authority of the legislature to
create a public office and to appropriate funds therefor.[7]

The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by
petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B.
Fua, Sr. (petitioners-legislators) as incumbent members of the House of Representatives.

The genesis of the foregoing cases can be traced to the events prior to the historic May 2010
elections, when then Senator Benigno Simeon Aquino III declared his staunch condemnation of
graft and corruption with his slogan, Kung walang corrupt, walang mahirap. The Filipino
people, convinced of his sincerity and of his ability to carry out this noble objective, catapulted
the good senator to the presidency.
 To transform his campaign slogan into reality, President Aquino found a need for a
special body to investigate reported cases of graft and corruption allegedly committed during the
previous administration.

Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive
Order No. 1 establishing the Philippine Truth Commission of 2010 (Truth
Commission). Pertinent provisions of said executive order read:
EXECUTIVE ORDER NO. 1

CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010

WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines

solemnly enshrines the principle that a public office is a public trust and mandates
that public officers and employees, who are servants of the people, must at all
times be accountable to the latter, serve them with utmost responsibility, integrity,
loyalty and efficiency, act with patriotism and justice, and lead modest lives;

WHEREAS, corruption is among the most despicable acts of defiance of this

principle and notorious violation of this mandate;

WHEREAS, corruption is an evil and scourge which seriously affects the

political, economic, and social life of a nation; in a very special way it inflicts
untold misfortune and misery on the poor, the marginalized and underprivileged
sector of society;

WHEREAS, corruption in the Philippines has reached very alarming levels, and
undermined the peoples trust and confidence in the Government and its
institutions;

WHEREAS, there is an urgent call for the determination of the truth regarding
certain reports of large scale graft and corruption in the government and to put a
closure to them by the filing of the appropriate cases against those involved, if
warranted, and to deter others from committing the evil, restore the peoples faith
and confidence in the Government and in their public servants;

WHEREAS, the Presidents battlecry during his campaign for the Presidency in
the last elections kung walang corrupt, walang mahirap expresses a solemn
pledge that if elected, he would end corruption and the evil it breeds;

WHEREAS, there is a need for a separate body dedicated solely to investigating

and finding out the truth concerning the reported cases of graft and corruption
during the previous administration, and which will recommend the prosecution of
the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292,
otherwise known as the Revised Administrative Code of the Philippines, gives the
President the continuing authority to reorganize the Office of the President.

NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the

Republic of the Philippines, by virtue of the powers vested in me by law, do
hereby order:

SECTION 1. Creation of a Commission. There is hereby created

the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the COMMISSION, which shall primarily seek and find the truth on, and toward
this end, investigate reports of graft and corruption of such scale and magnitude
that shock and offend the moral and ethical sensibilities of the people, committed
by public officers and employees, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration; and thereafter
recommend the appropriate action or measure to be taken thereon to ensure that
the full measure of justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members who
will act as an independent collegial body.

SECTION 2. Powers and Functions. The Commission, which shall have all the
powers of an investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987, is primarily tasked to conduct a thorough fact-
finding investigation of reported cases of graft and corruption referred to in
Section 1, involving third level public officers and higher, their co-principals,
accomplices and accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and recommendations to the
President, Congress and the Ombudsman.
In particular, it shall:

a) Identify and determine the reported cases of such graft and corruption which
it will investigate;

b) Collect, receive, review and evaluate evidence related to or regarding the

cases of large scale corruption which it has chosen to investigate, and to this end
require any agency, official or employee of the Executive Branch, including
government-owned or controlled corporations, to produce documents, books,
records and other papers;

c) Upon proper request or representation, obtain information and documents

from the Senate and the House of Representatives records of investigations
conducted by committees thereof relating to matters or subjects being investigated
by the Commission;

d) Upon proper request and representation, obtain information from the courts,
including the Sandiganbayan and the Office of the Court Administrator,
information or documents in respect to corruption cases filed with the
Sandiganbayan or the regular courts, as the case may be;

e) Invite or subpoena witnesses and take their testimonies and for that purpose,
administer oaths or affirmations as the case may be;

f) Recommend, in cases where there is a need to utilize any person as a state

witness to ensure that the ends of justice be fully served, that such person who
qualifies as a state witness under the Revised Rules of Court of the Philippines be
admitted for that purpose;

g) Turn over from time to time, for expeditious prosecution, to the appropriate
prosecutorial authorities, by means of a special or interim report and
recommendation, all evidence on corruption of public officers and employees and
their private sector co-principals, accomplices or accessories, if any, when in the
course of its investigation the Commission finds that there is reasonable ground to
believe that they are liable for graft and corruption under pertinent applicable
laws;

h) Call upon any government investigative or prosecutorial agency such as the

Department of Justice or any of the agencies under it, and the Presidential Anti-
Graft Commission, for such assistance and cooperation as it may require in the
discharge of its functions and duties;

i) Engage or contract the services of resource persons, professionals and other

personnel determined by it as necessary to carry out its mandate;

j) Promulgate its rules and regulations or rules of procedure it deems

necessary to effectively and efficiently carry out the objectives of this Executive
Order and to ensure the orderly conduct of its investigations, proceedings and
hearings, including the presentation of evidence;

k) Exercise such other acts incident to or are appropriate and necessary in

connection with the objectives and purposes of this Order.
SECTION 3. Staffing Requirements. x x x.

SECTION 4. Detail of Employees. x x x.

SECTION 5. Engagement of Experts. x x x

SECTION 6. Conduct of Proceedings. x x x.

SECTION 7. Right to Counsel of Witnesses/Resource Persons. x x x.
SECTION 8. Protection of Witnesses/Resource Persons. x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any
government official or personnel who, without lawful excuse, fails to appear upon
subpoena issued by the Commission or who, appearing before the Commission
refuses to take oath or affirmation, give testimony or produce documents for
inspection, when required, shall be subject to administrative disciplinary action.
Any private person who does the same may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. x x x.
SECTION 11. Budget for the Commission. The Office of the President shall
provide the necessary funds for the Commission to ensure that it can exercise its
powers, execute its functions, and perform its duties and responsibilities as
effectively, efficiently, and expeditiously as possible.
SECTION 12. Office. x x x.

SECTION 13. Furniture/Equipment. x x x.

SECTION 14. Term of the Commission. The Commission shall accomplish its
mission on or before December 31, 2012.

SECTION 15. Publication of Final Report. x x x.

SECTION 16. Transfer of Records and Facilities of the Commission. x x x.

SECTION 17. Special Provision Concerning Mandate. If and when in the

judgment of the President there is a need to expand the mandate of the
Commission as defined in Section 1 hereof to include the investigation of cases
and instances of graft and corruption during the prior administrations, such
mandate may be so extended accordingly by way of a supplemental Executive
Order.

SECTION 18. Separability Clause. If any provision of this Order is declared

unconstitutional, the same shall not affect the validity and effectivity of the other
provisions hereof.

SECTION 19. Effectivity. This Executive Order shall take effect immediately.

DONE in the City of Manila, Philippines, this 30th day of July 2010.

(SGD.) BENIGNO S. AQUINO III

By the President:

(SGD.) PAQUITO N. OCHOA, JR.

Executive Secretary

Nature of the Truth Commission

 As can be gleaned from the above-quoted provisions, the Philippine Truth
Commission (PTC) is a mere ad hoc body formed under the Office of the President with
the primary task to investigate reports of graft and corruption committed by third-level public
officers and employees, their co-principals, accomplices and accessories during the previous
administration, and thereafter to submit its finding and recommendations to the President,
Congress and the Ombudsman. Though it has been described as an independent collegial body, it
is essentially an entity within the Office of the President Proper and subject to his
control. Doubtless, it constitutes a public office, as an ad hoc body is one.[8]

To accomplish its task, the PTC shall have all the powers of an investigative body under
Section 37, Chapter 9, Book I of the Administrative Code of 1987. It is not, however, a quasi-
judicial body as it cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes
between contending parties. All it can do is gather, collect and assess evidence of graft and
corruption and make recommendations. It may have subpoena powers but it has no power to cite
people in contempt, much less order their arrest. Although it is a fact-finding body, it cannot
determine from such facts if probable cause exists as to warrant the filing of an information in
our courts of law. Needless to state, it cannot impose criminal, civil or administrative penalties or
sanctions.
The PTC is different from the truth commissions in other countries which have been
created as official, transitory and non-judicial fact-finding bodies to establish the facts and
context of serious violations of human rights or of international humanitarian law in a countrys
past.[9] They are usually established by states emerging from periods of internal unrest, civil
strife or authoritarianism to serve as mechanisms for transitional justice.

Truth commissions have been described as bodies that share the following characteristics:
(1) they examine only past events; (2) they investigate patterns of abuse committed over a period
of time, as opposed to a particular event; (3) they are temporary bodies that finish their work
with the submission of a report containing conclusions and recommendations; and (4) they are
officially sanctioned, authorized or empowered by the State.[10] Commissions members are
usually empowered to conduct research, support victims, and propose policy recommendations
to prevent recurrence of crimes. Through their investigations, the commissions may aim to
discover and learn more about past abuses, or formally acknowledge them. They may aim to
prepare the way for prosecutions and recommend institutional reforms.[11]

Thus, their main goals range from retribution to reconciliation. The Nuremburg and
Tokyo war crime tribunals are examples of a retributory or vindicatory body set up to try and
punish those responsible for crimes against humanity. A form of a reconciliatory tribunal is the
Truth and Reconciliation Commission of South Africa, the principal function of which was to
heal the wounds of past violence and to prevent future conflict by providing a cathartic
experience for victims.

The PTC is a far cry from South Africas model. The latter placed more emphasis on
reconciliation than on judicial retribution, while the marching order of the PTC is the
identification and punishment of perpetrators. As one writer[12] puts it:

The order ruled out reconciliation. It translated the Draconian code spelled
out by Aquino in his inaugural speech: To those who talk about reconciliation, if
they mean that they would like us to simply forget about the wrongs that they
have committed in the past, we have this to say: There can be no reconciliation
without justice. When we allow crimes to go unpunished, we give consent to their
occurring over and over again.

The Thrusts of the Petitions

Barely a month after the issuance of Executive Order No. 1, the petitioners asked the
Court to declare it unconstitutional and to enjoin the PTC from performing its functions. A
perusal of the arguments of the petitioners in both cases shows that they are essentially the
same. The petitioners-legislators summarized them in the following manner:

(a) E.O. No. 1 violates the separation of powers as it arrogates the power
of the Congress to create a public office and appropriate funds for its operation.

(b) The provision of Book III, Chapter 10, Section 31 of the

Administrative Code of 1987 cannot legitimize E.O. No. 1 because the delegated
authority of the President to structurally reorganize the Office of the President to
achieve economy, simplicity and efficiency does not include the power to create
an entirely new public office which was hitherto inexistent like the Truth
Commission.

(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes
when it vested the Truth Commission with quasi-judicial powers duplicating, if
not superseding, those of the Office of the Ombudsman created under the 1987
Constitution and the Department of Justice created under the Administrative Code
of 1987.

(d) E.O. No. 1 violates the equal protection clause as it selectively targets
for investigation and prosecution officials and personnel of the previous
 administration as if corruption is their peculiar species even as it excludes those of
the other administrations, past and present, who may be indictable.

(e) The creation of the Philippine Truth Commission of 2010 violates the
consistent and general international practice of four decades wherein States
constitute truth commissions to exclusively investigate human rights violations,
which customary practice forms part of the generally accepted principles of
international law which the Philippines is mandated to adhere to pursuant to the
Declaration of Principles enshrined in the Constitution.

(f) The creation of the Truth Commission is an exercise in futility, an

adventure in partisan hostility, a launching pad for trial/conviction by publicity
and a mere populist propaganda to mistakenly impress the people that widespread
poverty will altogether vanish if corruption is eliminated without even addressing
the other major causes of poverty.

(g) The mere fact that previous commissions were not constitutionally
challenged is of no moment because neither laches nor estoppel can bar an
eventual question on the constitutionality and validity of an executive issuance or
even a statute.[13]

In their Consolidated Comment,[14] the respondents, through the Office of the Solicitor
General (OSG), essentially questioned the legal standing of petitioners and defended the assailed
executive order with the following arguments:

1] E.O. No. 1 does not arrogate the powers of Congress to create a public
office because the Presidents executive power and power of control necessarily
include the inherent power to conduct investigations to ensure that laws are
faithfully executed and that, in any event, the Constitution, Revised
Administrative Code of 1987 (E.O. No. 292), [15] Presidential Decree (P.D.) No.
1416[16] (as amended by P.D. No. 1772), R.A. No. 9970,[17] and settled
jurisprudence that authorize the President to create or form such bodies.

2] E.O. No. 1 does not usurp the power of Congress to appropriate funds
because there is no appropriation but a mere allocation of funds already
appropriated by Congress.

3] The Truth Commission does not duplicate or supersede the functions of

the Office of the Ombudsman (Ombudsman) and the Department of
Justice (DOJ),because it is a fact-finding body and not a quasi-judicial body and
its functions do not duplicate, supplant or erode the latters jurisdiction.

4] The Truth Commission does not violate the equal protection clause
because it was validly created for laudable purposes.
 The OSG then points to the continued existence and validity of other executive orders and
presidential issuances creating similar bodies to justify the creation of the PTC such as
Presidential Complaint and Action Commission (PCAC) by President Ramon B. Magsaysay,
Presidential Committee on Administrative Performance Efficiency (PCAPE)by President Carlos
P. Garcia and Presidential Agency on Reform and Government Operations (PARGO) by
President Ferdinand E. Marcos.[18]
From the petitions, pleadings, transcripts, and memoranda, the following are the principal
issues to be resolved:

1. Whether or not the petitioners have the legal standing to

file their respective petitions and question Executive Order No. 1;

2. Whether or not Executive Order No. 1 violates the

principle of separation of powers by usurping the powers of Congress to create
and to appropriate funds for public offices, agencies and commissions;
3. Whether or not Executive Order No. 1 supplants the powers of the
Ombudsman and the DOJ;

4. Whether or not Executive Order No. 1 violates the equal protection

clause; and

5. Whether or not petitioners are entitled to injunctive relief.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the
Court needs to ascertain whether the requisites for a valid exercise of its power of judicial review
are present.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of
judicial power; (2) the person challenging the act must have the standing to question the validity
of the subject act or issuance; otherwise stated, he 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;
(3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.[19]

Among all these limitations, only the legal standing of the petitioners has been put at issue.

Legal Standing of the Petitioners

The OSG attacks the legal personality of the petitioners-legislators to file their petition
for failure to demonstrate their personal stake in the outcome of the case. It argues that the
petitioners have not shown that they have sustained or are in danger of sustaining any personal
injury attributable to the creation of the PTC. Not claiming to be the subject of the commissions
investigations, petitioners will not sustain injury in its creation or as a result of its
proceedings.[20]

The Court disagrees with the OSG in questioning the legal standing of the petitioners-
legislators to assail Executive Order No. 1. Evidently, their petition primarily invokes usurpation
of the power of the Congress as a body to which they belong as members. This certainly justifies
their resolve to take the cudgels for Congress as an institution and present the complaints on the
usurpation of their power and rights as members of the legislature before the Court. As held
in Philippine Constitution Association v. Enriquez,[21]

To the extent the powers of Congress are impaired, so is the power of each
member thereof, since his office confers a right to participate in the exercise of the
powers of that institution.
An act of the Executive which injures the institution of Congress causes a
derivative but nonetheless substantial injury, which can be questioned by a
member of Congress. In such a case, any member of Congress can have a resort to
the courts.

Indeed, legislators have a legal standing to see to it that the prerogative, powers and
privileges vested by the Constitution in their office remain inviolate. Thus, they are allowed to
question the validity of any official action which, to their mind, infringes on their prerogatives as
legislators.[22]

With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to
question the creation of the PTC and the budget for its operations.[23] It emphasizes that the
funds to be used for the creation and operation of the commission are to be taken from those
funds already appropriated by Congress. Thus, the allocation and disbursement of funds for the
commission will not entail congressional action but will simply be an exercise of the Presidents
power over contingent funds.

As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in
danger of sustaining, any personal and direct injury attributable to the implementation of
Executive Order No. 1. Nowhere in his petition is an assertion of a clear right that may justify his
clamor for the Court to exercise judicial power and to wield the axe over presidential issuances
in defense of the Constitution. The case of David v. Arroyo[24] explained the deep-seated rules
on locus standi. Thus:

Locus standi is defined as a right of appearance in a court of justice on a

given question. 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.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, 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: 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 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, later reaffirmed in Tileston v. Ullman. 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, 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, Manila Race Horse Trainers
Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-
Chinese League of the Philippines v. Felix. [Emphases included. Citations
omitted]

Notwithstanding, the Court leans on the doctrine that the rule on standing is a matter of
procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers,
and legislators when the public interest so requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of paramount public interest.[25]

Thus, in Coconut Oil Refiners Association, Inc. v. Torres,[26] the Court held that in cases
of paramount importance where serious constitutional questions are involved, the standing
requirements may be relaxed and a suit may be allowed to prosper even where there is no direct
injury to the party claiming the right of judicial review. In the first Emergency Powers
Cases,[27] ordinary citizens and taxpayers were allowed to question the constitutionality of
several executive orders although they had only an indirect and general interest shared in
common with the public.

The OSG claims that the determinants of transcendental importance[28] laid down
in CREBA v. ERC and Meralco[29] are non-existent in this case. The Court, however, finds reason
in Biraogos assertion that the petition covers matters of transcendental importance to justify the
exercise of jurisdiction by the Court. There are constitutional issues in the petition which deserve
the attention of this Court in view of their seriousness, novelty and weight as precedents. Where
the issues are of transcendental and paramount importance not only to the public but also to the
Bench and the Bar, they should be resolved for the guidance of all.[30] Undoubtedly, the Filipino
people are more than interested to know the status of the Presidents first effort to bring about a
promised change to the country. The Court takes cognizance of the petition not due to
overwhelming political undertones that clothe the issue in the eyes of the public, but because the
Court stands firm in its oath to perform its constitutional duty to settle legal controversies with
overreaching significance to society.

Power of the President to Create the Truth Commission

In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a
public office and not merely an adjunct body of the Office of the President.[31]Thus, in order that
the President may create a public office he must be empowered by the Constitution, a statute or
an authorization vested in him by law. According to petitioner, such power cannot be
presumed[32] since there is no provision in the Constitution or any specific law that authorizes the
President to create a truth commission.[33] He adds that Section 31 of the Administrative Code of
1987, granting the President the continuing authority to reorganize his office, cannot serve as
basis for the creation of a truth commission considering the aforesaid provision merely uses
verbs such as reorganize, transfer, consolidate, merge, and abolish.[34] Insofar as it vests in the
President the plenary power to reorganize the Office of the President to the extent of creating a
public office, Section 31 is inconsistent with the principle of separation of powers enshrined in
the Constitution and must be deemed repealed upon the effectivity thereof.[35]

Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public
office lies within the province of Congress and not with the executive branch of
government. They maintain that the delegated authority of the President to reorganize under
Section 31 of the Revised Administrative Code: 1) does not permit the President to create a
public office, much less a truth commission; 2) is limited to the reorganization of the
administrative structure of the Office of the President; 3) is limited to the restructuring of the
internal organs of the Office of the President Proper, transfer of functions and transfer of
agencies; and 4) only to achieve simplicity, economy and efficiency.[36] Such continuing
authority of the President to reorganize his office is limited, and by issuing Executive Order No.
1, the President overstepped the limits of this delegated authority.

The OSG counters that there is nothing exclusively legislative about the creation by the
President of a fact-finding body such as a truth commission. Pointing to numerous offices created
by past presidents, it argues that the authority of the President to create public offices within the
Office of the President Proper has long been recognized.[37]According to the OSG, the Executive,
just like the other two branches of government, possesses the inherent authority to create fact-
finding committees to assist it in the performance of its constitutionally mandated functions and
in the exercise of its administrative functions.[38] This power, as the OSG explains it, is but an
adjunct of the plenary powers wielded by the President under Section 1 and his power of control
under Section 17, both of Article VII of the Constitution.[39]

It contends that the President is necessarily vested with the power to conduct fact-finding
investigations, pursuant to his duty to ensure that all laws are enforced by public officials and
employees of his department and in the exercise of his authority to assume directly the functions
of the executive department, bureau and office, or interfere with the discretion of his
officials.[40] The power of the President to investigate is not limited to the exercise of his power
of control over his subordinates in the executive branch, but extends further in the exercise of his
other powers, such as his power to discipline subordinates,[41] his power for rule making,
adjudication and licensing purposes[42] and in order to be informed on matters which he is
entitled to know.[43]

The OSG also cites the recent case of Banda v. Ermita,[44] where it was held that the
President has the power to reorganize the offices and agencies in the executive department in line
with his constitutionally granted power of control and by virtue of a valid delegation of the
legislative power to reorganize executive offices under existing statutes.

Thus, the OSG concludes that the power of control necessarily includes the power to
create offices. For the OSG, the President may create the PTC in order to, among others, put a
closure to the reported large scale graft and corruption in the government.[45]

The question, therefore, before the Court is this: Does the creation of the PTC fall within
the ambit of the power to reorganize as expressed in Section 31 of the Revised Administrative
Code? Section 31 contemplates reorganization as limited by the following functional and
structural lines: (1) restructuring the internal organization of the Office of the President Proper
by abolishing, consolidating or merging units thereof or transferring functions from one unit to
another; (2) transferring any function under the Office of the President to any other
Department/Agency or vice versa; or (3) transferring any agency under the Office of the
President to any other Department/Agency or vice versa.Clearly, the provision refers to reduction
of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy
of functions. These point to situations where a body or an office is already existent but a
modification or alteration thereof has to be effected. The creation of an office is nowhere
mentioned, much less envisioned in said provision. Accordingly, the answer to the question is in
the negative.

To say that the PTC is borne out of a restructuring of the Office of the President under
Section 31 is a misplaced supposition, even in the plainest meaning attributable to the term
restructure an alteration of an existing structure. Evidently, the PTC was not part of the structure
of the Office of the President prior to the enactment of Executive Order No. 1. As held in Buklod
ng Kawaning EIIB v. Hon. Executive Secretary,[46]

But of course, the list of legal basis authorizing the President to reorganize
any department or agency in the executive branch does not have to end here. We
must not lose sight of the very source of the power that which constitutes an
express grant of power. Under Section 31, Book III of Executive Order No. 292
(otherwise known as the Administrative Code of 1987), "the President, subject to
the policy in the Executive Office and in order to achieve simplicity, economy
and efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the President." For this purpose, he may
transfer the functions of other Departments or Agencies to the Office of the
President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that
reorganization "involves the reduction of personnel, consolidation of offices, or
abolition thereof by reason of economy or redundancy of functions." It takes
place when there is an alteration of the existing structure of government
offices or units therein, including the lines of control, authority and
responsibility between them. The EIIB is a bureau attached to the Department of
Finance. It falls under the Office of the President. Hence, it is subject to the
Presidents continuing authority to reorganize. [Emphasis Supplied]

In the same vein, the creation of the PTC is not justified by the Presidents power of
control. Control is essentially the power to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment of
the former with that of the latter.[47] Clearly, the power of control is entirely different from the
power to create public offices. The former is inherent in the Executive, while the latter finds
basis from either a valid delegation from Congress, or his inherent duty to faithfully execute the
laws.

The question is this, is there a valid delegation of power from Congress, empowering the
President to create a public office?
 According to the OSG, the power to create a truth commission pursuant to the above
provision finds statutory basis under P.D. 1416, as amended by P.D. No. 1772.[48] The said law
granted the President the continuing authority to reorganize the national government, including
the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to
create and classify functions, services and activities, transfer appropriations, and to standardize
salaries and materials. This decree, in relation to Section 20, Title I, Book III of E.O. 292 has
been invoked in several cases such as Larin v. Executive Secretary.[49]

The Court, however, declines to recognize P.D. No. 1416 as a justification for the
President to create a public office. Said decree is already stale, anachronistic and inoperable.
P.D. No. 1416 was a delegation to then President Marcos of the authority to reorganize the
administrative structure of the national government including the power to create offices and
transfer appropriations pursuant to one of the purposes of the decree, embodied in its last
Whereas clause:

WHEREAS, the transition towards the parliamentary form of

government will necessitate flexibility in the organization of the national
government.

Clearly, as it was only for the purpose of providing manageability and resiliency during
the interim, P.D. No. 1416, as amended by P.D. No. 1772, became functus oficioupon the
convening of the First Congress, as expressly provided in Section 6, Article XVIII of the 1987
Constitution. In fact, even the Solicitor General agrees with this view. Thus:

ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last
whereas clause of P.D. 1416 says it was
enacted to prepare the transition from
presidential to parliamentary. Now, in a
parliamentary form of government, the
legislative and executive powers are fused,
correct?

SOLICITOR GENERAL CADIZ: Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now
would you agree with me that P.D. 1416
should not be considered effective
 anymore upon the promulgation, adoption,
ratification of the 1987 Constitution.

SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor.

ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the

entire National Government is deemed
repealed, at least, upon the adoption of the
1987 Constitution, correct.

SOLICITOR GENERAL CADIZ: Yes, Your Honor.[50]

While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416
as amended by P.D. No. 1772, the creation of the PTC finds justification under Section 17,
Article VII of the Constitution, imposing upon the President the duty to ensure that the laws are
faithfully executed. Section 17 reads:

Section 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully
executed. (Emphasis supplied).

As correctly pointed out by the respondents, the allocation of power in the three principal
branches of government is a grant of all powers inherent in them. The Presidents power to
conduct investigations to aid him in ensuring the faithful execution of laws in this case,
fundamental laws on public accountability and transparency is inherent in the Presidents powers
as the Chief Executive. That the authority of the President to conduct investigations and to create
bodies to execute this power is not explicitly mentioned in the Constitution or in statutes does not
mean that he is bereft of such authority.[51] As explained in the landmark case of Marcos v.
Manglapus:[52]

x x x. The 1987 Constitution, however, brought back the presidential

system of government and restored the separation of legislative, executive and
judicial powers by their actual distribution among three distinct branches of
government with provision for checks and balances.

It would not be accurate, however, to state that "executive power" is the

power to enforce the laws, for the President is head of state as well as head of
government and whatever powers inhere in such positions pertain to the office
unless the Constitution itself withholds it. Furthermore, the Constitution itself
provides that the execution of the laws is only one of the powers of the
President. It also grants the President other powers that do not involve the
 execution of any provision of law, e.g., his power over the country's foreign
relations.

On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it
maintains intact what is traditionally considered as within the scope of "executive
power." Corollarily, the powers of the President cannot be said to be limited only
to the specific powers enumerated in the Constitution. In other words, executive
power is more than the sum of specific powers so enumerated.

It has been advanced that whatever power inherent in the government that
is neither legislative nor judicial has to be executive. x x x.

Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As
stated above, the powers of the President are not limited to those specific powers under the
Constitution.[53] One of the recognized powers of the President granted pursuant to this
constitutionally-mandated duty is the power to create ad hoc committees. This flows from the
obvious need to ascertain facts and determine if laws have been faithfully executed. Thus,
in Department of Health v. Camposano,[54] the authority of the President to issue Administrative
Order No. 298, creating an investigative committee to look into the administrative charges filed
against the employees of the Department of Health for the anomalous purchase of medicines was
upheld. In said case, it was ruled:

The Chief Executives power to create the Ad hoc Investigating Committee

cannot be doubted. Having been constitutionally granted full control of the
Executive Department, to which respondents belong, the President has the
obligation to ensure that all executive officials and employees faithfully comply
with the law. With AO 298 as mandate, the legality of the investigation is
sustained. Such validity is not affected by the fact that the investigating team and
the PCAGC had the same composition, or that the former used the offices and
facilities of the latter in conducting the inquiry. [Emphasis supplied]

It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to
allow an inquiry into matters which the President is entitled to know so that he can be properly
advised and guided in the performance of his duties relative to the execution and enforcement of
the laws of the land. And if history is to be revisited, this was also the objective of the
investigative bodies created in the past like the PCAC, PCAPE, PARGO, the Feliciano
Commission, the Melo Commission and the Zenarosa Commission. There being no changes in
the government structure, the Court is not inclined to declare such executive power as non-
existent just because the direction of the political winds have changed.

On the charge that Executive Order No. 1 transgresses the power of Congress to
appropriate funds for the operation of a public office, suffice it to say that there will be no
appropriation but only an allotment or allocations of existing funds already
appropriated. Accordingly, there is no usurpation on the part of the Executive of the power of
Congress to appropriate funds. Further, there is no need to specify the amount to be earmarked
for the operation of the commission because, in the words of the Solicitor General, whatever
funds the Congress has provided for the Office of the President will be the very source of the
funds for the commission.[55] Moreover, since the amount that would be allocated to the PTC
shall be subject to existing auditing rules and regulations, there is no impropriety in the funding.

Power of the Truth Commission to Investigate

The Presidents power to conduct investigations to ensure that laws are faithfully executed is well
recognized. It flows from the faithful-execution clause of the Constitution under Article VII,
Section 17 thereof.[56] As the Chief Executive, the president represents the government as a
whole and sees to it that all laws are enforced by the officials and employees of his
department. He has the authority to directly assume the functions of the executive department.[57]

Invoking this authority, the President constituted the PTC to primarily investigate reports of graft
and corruption and to recommend the appropriate action. As previously stated, no quasi-judicial
powers have been vested in the said body as it cannot adjudicate rights of persons who come
before it. It has been said that Quasi-judicial powers involve the power to hear and determine
questions of fact to which the legislative policy is to apply and to decide in accordance with the
standards laid down by law itself in enforcing and administering the same law.[58] In simpler
terms, judicial discretion is involved in the exercise of these quasi-judicial power, such that it is
exclusively vested in the judiciary and must be clearly authorized by the legislature in the case of
administrative agencies.

The distinction between the power to investigate and the power to adjudicate was
delineated by the Court in Cario v. Commission on Human Rights.[59] Thus:

"Investigate," commonly understood, means to examine, explore, inquire

or delve or probe into, research on, study. The dictionary definition of
"investigate" is "to observe or study closely: inquire into systematically: "to
 search or inquire into: x x to subject to an official probe x x: to conduct an official
inquiry." The purpose of investigation, of course, is to discover, to find out, to
learn, obtain information. Nowhere included or intimated is the notion of settling,
deciding or resolving a controversy involved in the facts inquired into by
application of the law to the facts established by the inquiry.

The legal meaning of "investigate" is essentially the same: "(t)o follow up

step by step by patient inquiry or observation. To trace or track; to search into; to
examine and inquire into with care and accuracy; to find out by careful
inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to
make an investigation," "investigation" being in turn described as "(a)n
administrative function, the exercise of which ordinarily does not require a
hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or otherwise, for the
discovery and collection of facts concerning a certain matter or matters."

"Adjudicate," commonly or popularly understood, means to adjudge,

arbitrate, judge, decide, determine, resolve, rule on, settle. The dictionary defines
the term as "to settle finally (the rights and duties of the parties to a court case) on
the merits of issues raised: x x to pass judgment on: settle judicially: x x act as
judge." And "adjudge" means "to decide or rule upon as a judge or with judicial or
quasi-judicial powers: x x to award or grant judicially in a case of controversy x
x."
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial
authority. To determine finally. Synonymous with adjudge in its strictest sense;"
and "adjudge" means: "To pass on judicially, to decide, settle or decree, or to
sentence or condemn. x x. Implies a judicial determination of a fact, and the entry
of a judgment." [Italics included. Citations Omitted]

Fact-finding is not adjudication and it cannot be likened to the judicial function of a court
of justice, or even a quasi-judicial agency or office. The function of receiving evidence and
ascertaining therefrom the facts of a controversy is not a judicial function. To be considered as
such, the act of receiving evidence and arriving at factual conclusions in a controversy must be
accompanied by the authority of applying the law to the factual conclusions to the end that the
controversy may be decided or resolved authoritatively, finally and definitively, subject to
appeals or modes of review as may be provided by law.[60] Even respondents themselves admit
that the commission is bereft of any quasi-judicial power.[61]

Contrary to petitioners apprehension, the PTC will not supplant the Ombudsman or the DOJ or
erode their respective powers. If at all, the investigative function of the commission will
complement those of the two offices. As pointed out by the Solicitor General, the
recommendation to prosecute is but a consequence of the overall task of the commission to
conduct a fact-finding investigation.[62] The actual prosecution of suspected offenders, much less
adjudication on the merits of the charges against them,[63] is certainly not a function given to the
commission. The phrase, when in the course of its investigation, under Section 2(g), highlights
this fact and gives credence to a contrary interpretation from that of the petitioners. The function
of determining probable cause for the filing of the appropriate complaints before the courts
remains to be with the DOJ and the Ombudsman.[64]

At any rate, the Ombudsmans power to investigate under R.A. No. 6770 is not exclusive but is
shared with other similarly authorized government agencies. Thus, in the case of Ombudsman v.
Galicia,[65] it was written:

This power of investigation granted to the Ombudsman by the 1987 Constitution

and The Ombudsman Act is not exclusive but is shared with other similarly
authorized government agencies such as the PCGG and judges of municipal
trial courts and municipal circuit trial courts. The power to conduct preliminary
investigation on charges against public employees and officials is likewise
concurrently shared with the Department of Justice. Despite the passage of the
Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction
with the Office of the President and the local Sanggunians to investigate
complaints against local elective officials. [Emphasis supplied].

Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate
criminal cases under Section 15 (1) of R.A. No. 6770, which states:

(1) Investigate and prosecute on its own or on complaint by any person,

any act or omission of any public officer or employee, office or agency, when
such act or omission appears to be illegal, unjust, improper or inefficient. It
has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the
exercise of its primary jurisdiction, it may take over, at any stage, from any
investigatory agency of government, the investigation of such
cases. [Emphases supplied]

The act of investigation by the Ombudsman as enunciated above contemplates the

conduct of a preliminary investigation or the determination of the existence of probable
cause. This is categorically out of the PTCs sphere of functions. Its power to investigate is
limited to obtaining facts so that it can advise and guide the President in the performance of his
duties relative to the execution and enforcement of the laws of the land. In this regard, the PTC
commits no act of usurpation of the Ombudsmans primordial duties.
The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title
III, Book IV in the Revised Administrative Code is by no means exclusive and, thus, can be
shared with a body likewise tasked to investigate the commission of crimes.

Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to
be accorded conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano
Commission and the Zenarosa Commission, its findings would, at best, be recommendatory in
nature. And being so, the Ombudsman and the DOJ have a wider degree of latitude to decide
whether or not to reject the recommendation. These offices, therefore, are not deprived of their
mandated duties but will instead be aided by the reports of the PTC for possible indictments for
violations of graft laws.

Violation of the Equal Protection Clause

Although the purpose of the Truth Commission falls within the investigative power of the
President, the Court finds difficulty in upholding the constitutionality of Executive Order No. 1
in view of its apparent transgression of the equal protection clause enshrined in Section 1, Article
III (Bill of Rights) of the 1987 Constitution. Section 1 reads:

Section 1. No person shall be deprived of life, liberty, or property without

due process of law, nor shall any person be denied the equal protection of the
laws.

The petitioners assail Executive Order No. 1 because it is violative of this constitutional
safeguard. They contend that it does not apply equally to all members of the same class such that
the intent of singling out the previous administration as its sole object makes the PTC an
adventure in partisan hostility.[66] Thus, in order to be accorded with validity, the commission
must also cover reports of graft and corruption in virtually all administrations previous to that of
former President Arroyo.[67]

The petitioners argue that the search for truth behind the reported cases of graft and
corruption must encompass acts committed not only during the administration of former
President Arroyo but also during prior administrations where the same magnitude of
controversies and anomalies[68] were reported to have been committed against the Filipino
people. They assail the classification formulated by the respondents as it does not fall under the
recognized exceptions because first, there is no substantial distinction between the group of
officials targeted for investigation by Executive Order No. 1 and other groups or persons who
abused their public office for personal gain; and second, the selective classification is not
germane to the purpose of Executive Order No. 1 to end corruption.[69] In order to attain
constitutional permission, the petitioners advocate that the commission should deal with graft
and grafters prior and subsequent to the Arroyo administration with the strong arm of the law
with equal force.[70]

Position of respondents

According to respondents, while Executive Order No. 1 identifies the previous

administration as the initial subject of the investigation, following Section 17 thereof, the PTC
will not confine itself to cases of large scale graft and corruption solely during the said
administration.[71] Assuming arguendo that the commission would confine its proceedings to
officials of the previous administration, the petitioners argue that no offense is committed against
the equal protection clause for the segregation of the transactions of public officers during the
previous administration as possible subjects of investigation is a valid classification based on
substantial distinctions and is germane to the evils which the Executive Order seeks to
correct.[72] To distinguish the Arroyo administration from past administrations, it recited the
following:

First. E.O. No. 1 was issued in view of widespread reports of large scale
graft and corruption in the previous administration which have eroded public
confidence in public institutions. There is, therefore, an urgent call for the
determination of the truth regarding certain reports of large scale graft and
corruption in the government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to deter others from
committing the evil, restore the peoples faith and confidence in the Government
and in their public servants.

Second. The segregation of the preceding administration as the object of

fact-finding is warranted by the reality that unlike with administrations long gone,
the current administration will most likely bear the immediate consequence of the
policies of the previous administration.

Third. The classification of the previous administration as a separate class

for investigation lies in the reality that the evidence of possible criminal activity,
the evidence that could lead to recovery of public monies illegally dissipated, the
policy lessons to be learned to ensure that anti-corruption laws are faithfully
executed, are more easily established in the regime that immediately precede the
current administration.
 Fourth. Many administrations subject the transactions of their
predecessors to investigations to provide closure to issues that are pivotal to
national life or even as a routine measure of due diligence and good housekeeping
by a nascent administration like the Presidential Commission on Good
Government (PCGG), created by the late President Corazon C. Aquino under
Executive Order No. 1 to pursue the recovery of ill-gotten wealth of her
predecessor former President Ferdinand Marcos and his cronies, and
the Saguisag Commission created by former President Joseph Estrada under
Administrative Order No, 53, to form an ad-hoc and independent citizens
committee to investigate all the facts and circumstances surrounding Philippine
Centennial projects of his predecessor, former President Fidel V.
Ramos.[73] [Emphases supplied]

Concept of the Equal Protection Clause

One of the basic principles on which this government was founded is that of the equality of right
which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the
laws is embraced in the concept of due process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in a separate clause, however, to
provide for a more specific guaranty against any form of undue favoritism or hostility from the
government. Arbitrariness in general may be challenged on the basis of the due process clause.
But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause.[74]

According to a long line of decisions, equal protection simply requires that all persons or
things similarly situated should be treated alike, both as to rights conferred and responsibilities
imposed.[75] It requires public bodies and institutions to treat similarly situated individuals in a
similar manner.[76] The purpose of the equal protection clause is to secure every person within a
states jurisdiction against intentional and arbitrary discrimination, whether occasioned by the
express terms of a statue or by its improper execution through the states duly constituted
authorities.[77] In other words, the concept of equal justice under the law requires the state to
govern impartially, and it may not draw distinctions between individuals solely on differences
that are irrelevant to a legitimate governmental objective.[78]

The equal protection clause is aimed at all official state actions, not just those of the
legislature.[79] Its inhibitions cover all the departments of the government including the political
and executive departments, and extend to all actions of a state denying equal protection of the
laws, through whatever agency or whatever guise is taken. [80]
 It, however, does not require the universal application of the laws to all persons or things
without distinction. What it simply requires is equality among equals as determined according to
a valid classification. Indeed, the equal protection clause permits classification. Such
classification, however, to be valid must pass the test of reasonableness. The test has four
requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose
of the law; (3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.[81] Superficial differences do not make for
a valid classification.[82]

For a classification to meet the requirements of constitutionality, it must include or

embrace all persons who naturally belong to the class.[83] The classification will be regarded as
invalid if all the members of the class are not similarly treated, both as to rights conferred and
obligations imposed. It is not necessary that the classification be made with absolute symmetry,
in the sense that the members of the class should possess the same characteristics in equal
degree. Substantial similarity will suffice; and as long as this is achieved, all those covered by
the classification are to be treated equally. The mere fact that an individual belonging to a class
differs from the other members, as long as that class is substantially distinguishable from all
others, does not justify the non-application of the law to him.[84]

The classification must not be based on existing circumstances only, or so constituted as

to preclude addition to the number included in the class. It must be of such a nature as to
embrace all those who may thereafter be in similar circumstances and conditions. It must not
leave out or underinclude those that should otherwise fall into a certain classification. As
elucidated in Victoriano v. Elizalde Rope Workers' Union[85] and reiterated in a long line of
cases,[86]
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. [Citations omitted]

Applying these precepts to this case, Executive Order No. 1 should be struck down as
violative of the equal protection clause. The clear mandate of the envisioned truth commission is
to investigate and find out the truth concerning the reported cases of graft and corruption during
the previous administration[87] only. The intent to single out the previous administration is plain,
patent and manifest. Mention of it has been made in at least three portions of the questioned
executive order. Specifically, these are:

WHEREAS, there is a need for a separate body dedicated solely to investigating

and finding out the truth concerning the reported cases of graft and corruption
during the previous administration, and which will recommend the prosecution
of the offenders and secure justice for all;

SECTION 1. Creation of a Commission. There is hereby created

the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the COMMISSION, which shall primarily seek and find the truth on, and toward
this end, investigate reports of graft and corruption of such scale and magnitude
that shock and offend the moral and ethical sensibilities of the people, committed
by public officers and employees, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration; and thereafter
recommend the appropriate action or measure to be taken thereon to ensure that
the full measure of justice shall be served without fear or favor.

SECTION 2. Powers and Functions. The Commission, which shall have all the
powers of an investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987, is primarily tasked to conduct a thorough fact-
finding investigation of reported cases of graft and corruption referred to in
Section 1, involving third level public officers and higher, their co-principals,
accomplices and accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and recommendations to the
President, Congress and the Ombudsman. [Emphases supplied]
 In this regard, it must be borne in mind that the Arroyo administration is but just a
member of a class, that is, a class of past administrations. It is not a class of its own. Not to
include past administrations similarly situated constitutes arbitrariness which the equal protection
clause cannot sanction. Such discriminating differentiation clearly reverberates to label the
commission as a vehicle for vindictiveness and selective retribution.

Though the OSG enumerates several differences between the Arroyo administration and
other past administrations, these distinctions are not substantial enough to merit the restriction of
the investigation to the previous administration only. The reports of widespread corruption in the
Arroyo administration cannot be taken as basis for distinguishing said administration from earlier
administrations which were also blemished by similar widespread reports of impropriety. They
are not inherent in, and do not inure solely to, the Arroyo administration. As Justice Isagani Cruz
put it, Superficial differences do not make for a valid classification.[88]

The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope
of the intended investigation to the previous administration only. The OSG ventures to opine that
to include other past administrations, at this point, may unnecessarily overburden the
commission and lead it to lose its effectiveness.[89] The reason given is specious. It is without
doubt irrelevant to the legitimate and noble objective of the PTC to stamp out or end corruption
and the evil it breeds.[90]

The probability that there would be difficulty in unearthing evidence or that the earlier
reports involving the earlier administrations were already inquired into is beside the point.
Obviously, deceased presidents and cases which have already prescribed can no longer be the
subjects of inquiry by the PTC. Neither is the PTC expected to conduct simultaneous
investigations of previous administrations, given the bodys limited time and resources. The law
does not require the impossible (Lex non cogit ad impossibilia).[91]

Given the foregoing physical and legal impossibility, the Court logically recognizes the
unfeasibility of investigating almost a centurys worth of graft cases. However, the fact remains
that Executive Order No. 1 suffers from arbitrary classification. The PTC, to be true to its
mandate of searching for the truth, must not exclude the other past administrations. The PTC
must, at least, have the authority to investigate all past administrations. While reasonable
prioritization is permitted, it should not be arbitrary lest it be struck down for being
unconstitutional. In the often quoted language of Yick Wo v. Hopkins,[92]
 Though the law itself be fair on its face and impartial in appearance, yet,
if applied and administered by public authority with an evil eye and an unequal
hand, so as practically to make unjust and illegal discriminations between
persons in similar circumstances, material to their rights, the denial of equal
justice is still within the prohibition of the constitution. [Emphasis supplied]

It could be argued that considering that the PTC is an ad hoc body, its scope is
limited. The Court, however, is of the considered view that although its focus is restricted, the
constitutional guarantee of equal protection under the laws should not in any way be
circumvented. The Constitution is the fundamental and paramount law of the nation to which all
other laws must conform and in accordance with which all private rights determined and all
public authority administered.[93] Laws that do not conform to the Constitution should be stricken
down for being unconstitutional.[94] While the thrust of the PTC is specific, that is, for
investigation of acts of graft and corruption, Executive Order No. 1, to survive, must be read
together with the provisions of the Constitution. To exclude the earlier administrations in the
guise of substantial distinctions would only confirm the petitioners lament that the subject
executive order is only an adventure in partisan hostility. In the case of US v. Cyprian,[95] it was
written: A rather limited number of such classifications have routinely been held or assumed to
be arbitrary; those include: race, national origin, gender, political activity or membership in a
political party, union activity or membership in a labor union, or more generally the exercise of
first amendment rights.

To reiterate, in order for a classification to meet the requirements of constitutionality, it

must include or embrace all persons who naturally belong to the class.[96] Such a classification
must not be based on existing circumstances only, or so constituted as to preclude additions to
the number included within a class, but must be of such a nature as to embrace all those who may
thereafter be in similar circumstances and conditions. Furthermore, all who are in situations and
circumstances which are relative to the discriminatory legislation and which are
indistinguishable from those of the members of the class must be brought under the influence of
the law and treated by it in the same way as are the members of the class.[97]

The Court is not unaware that mere underinclusiveness is not fatal to the validity of a law
under the equal protection clause.[98] Legislation is not unconstitutional merely because it is not
all-embracing and does not include all the evils within its reach.[99] It has been written that a
regulation challenged under the equal protection clause is not devoid of a rational predicate
simply because it happens to be incomplete.[100] In several instances, the underinclusiveness was
not considered a valid reason to strike down a law or regulation where the purpose can be
attained in future legislations or regulations. These cases refer to the step by step
process.[101] With regard to equal protection claims, a legislature does not run the risk of losing
the entire remedial scheme simply because it fails, through inadvertence or otherwise, to cover
every evil that might conceivably have been attacked.[102]

In Executive Order No. 1, however, there is no inadvertence. That the previous

administration was picked out was deliberate and intentional as can be gleaned from the fact that
it was underscored at least three times in the assailed executive order. It must be noted that
Executive Order No. 1 does not even mention any particular act, event or report to be focused on
unlike the investigative commissions created in the past. The equal protection clause is violated
by purposeful and intentional discrimination.[103]

To disprove petitioners contention that there is deliberate discrimination, the OSG

clarifies that the commission does not only confine itself to cases of large scale graft and
corruption committed during the previous administration.[104] The OSG points to Section 17 of
Executive Order No. 1, which provides:

SECTION 17. Special Provision Concerning Mandate. If and when in the

judgment of the President there is a need to expand the mandate of the
Commission as defined in Section 1 hereof to include the investigation of cases
and instances of graft and corruption during the prior administrations, such
mandate may be so extended accordingly by way of a supplemental Executive
Order.

The Court is not convinced. Although Section 17 allows the President the discretion to
expand the scope of investigations of the PTC so as to include the acts of graft and corruption
committed in other past administrations, it does not guarantee that they would be covered in the
future. Such expanded mandate of the commission will still depend on the whim and caprice of
the President. If he would decide not to include them, the section would then be meaningless.
This will only fortify the fears of the petitioners that the Executive Order No. 1 was crafted to
tailor-fit the prosecution of officials and personalities of the Arroyo administration.[105]
 The Court tried to seek guidance from the pronouncement in the case of Virata v.
Sandiganbayan,[106] that the PCGG Charter (composed of Executive Orders Nos. 1, 2 and 14)
does not violate the equal protection clause. The decision, however, was devoid of any
discussion on how such conclusory statement was arrived at, the principal issue in said case
being only the sufficiency of a cause of action.

A final word

The issue that seems to take center stage at present is - whether or not the Supreme Court,
in the exercise of its constitutionally mandated power of Judicial Review with respect to recent
initiatives of the legislature and the executive department, is exercising undue interference. Is the
Highest Tribunal, which is expected to be the protector of the Constitution, itself guilty of
violating fundamental tenets like the doctrine of separation of powers? Time and again, this issue
has been addressed by the Court, but it seems that the present political situation calls for it to
once again explain the legal basis of its action lest it continually be accused of being a hindrance
to the nations thrust to progress.

The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987
Constitution, is vested with Judicial Power that 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 of abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government.

Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which
is the power to declare a treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation unconstitutional. This power also
includes the duty to rule on the constitutionality of the application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances, and other regulations. These provisions,
however, have been fertile grounds of conflict between the Supreme Court, on one hand, and the
two co-equal bodies of government, on the other. Many times the Court has been accused of
asserting superiority over the other departments.

To answer this accusation, the words of Justice Laurel would be a good source of
enlightenment, to wit: And when the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to
it by the Constitution to determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which that instrument secures and
guarantees to them.[107]

Thus, the Court, in exercising its power of judicial review, is not imposing its own will
upon a co-equal body but rather simply making sure that any act of government is done in
consonance with the authorities and rights allocated to it by the Constitution. And, if after said
review, the Court finds no constitutional violations of any sort, then, it has no more authority of
proscribing the actions under review. Otherwise, the Court will not be deterred to pronounce said
act as void and unconstitutional.

It cannot be denied that most government actions are inspired with noble intentions, all
geared towards the betterment of the nation and its people. But then again, it is important to
remember this ethical principle: The end does not justify the means. No matter how noble and
worthy of admiration the purpose of an act, but if the means to be employed in accomplishing it
is simply irreconcilable with constitutional parameters, then it cannot still be allowed. [108] The
Court cannot just turn a blind eye and simply let it pass. It will continue to uphold the
Constitution and its enshrined principles.

The Constitution must ever remain supreme. All must bow to the mandate
of this law. Expediency must not be allowed to sap its strength nor greed for
power debase its rectitude.[109]

Lest it be misunderstood, this is not the death knell for a truth commission as nobly
envisioned by the present administration. Perhaps a revision of the executive issuance so as to
include the earlier past administrations would allow it to pass the test of reasonableness
and not be an affront to the Constitution. Of all the branches of the government, it is the
judiciary which is the most interested in knowing the truth and so it will not allow itself to be a
hindrance or obstacle to its attainment. It must, however, be emphasized that the search for the
truth must be within constitutional bounds for ours is still a government of laws and not of
men.[110]
 WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby
declared UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the
Constitution.

As also prayed for, the respondents are hereby ordered to cease and desist from carrying
out the provisions of Executive Order No. 1.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-27811 November 17, 1967

LACSON-MAGALLANES CO., INC., plaintiff-appellant,

vs.
JOSE PAÑO, HON. JUAN PAJO, in his capacity as Executive Secretary, and HON. JUAN
DE G. RODRIGUEZ, in his capacity as Secretary of Agriculture and Natural
Resources, defendants-appellees.

Leopoldo M. Abellera for plaintiff-appellant.

Victorio Advincula for defendant Jose Paño.
Office of the Solicitor General for defendant Secretary of Agriculture and Natural Resources and
Executive Secretary.

SANCHEZ, J.:

The question — May the Executive Secretary, acting by authority of the President, reverse a
decision of the Director of Lands that had been affirmed by the Executive Secretary of
Agriculture and Natural Resources — yielded an affirmative answer from the lower court.1
Hence, this appeal certified to this Court by the Court of Appeals upon the provisions of Sections
17 and 31 of the Judiciary Act of 1948, as amended.

The undisputed controlling facts are:

In 1932, Jose Magallanes was a permittee and actual occupant of a 1,103-hectare pasture land
situated in Tamlangon, Municipality of Bansalan, Province of Davao.

On January 9, 1953, Magallanes ceded his rights and interests to a portion (392,7569 hectares) of
the above public land to plaintiff.

On April 13, 1954, the portion Magallanes ceded to plaintiff was officially released from the
forest zone as pasture land and declared agricultural land.

On January 26, 1955, Jose Paño and nineteen other claimants2 applied for the purchase of ninety
hectares of the released area.

On March 29, 1955, plaintiff corporation in turn filed its own sales application covering the
entire released area. This was protested by Jose Paño and his nineteen companions upon the
averment that they are actual occupants of the part thereof covered by their own sales
application.

The Director of Lands, following an investigation of the conflict, rendered a decision on July 31,
1956 giving due course to the application of plaintiff corporation, and dismissing the claim of
Jose Paño and his companions. A move to reconsider failed.

On July 5, 1957, the Secretary of Agriculture and Natural Resources — on appeal by Jose Paño
for himself and his companions — held that the appeal was without merit and dismissed the
same.

The case was elevated to the President of the Philippines.

On June 25, 1958, Executive Secretary Juan Pajo, "[b]y authority of the President" decided the
controversy, modified the decision of the Director of Lands as affirmed by the Secretary of
Agriculture and Natural Resources, and (1) declared that "it would be for the public interest that
appellants, who are mostly landless farmers who depend on the land for their existence, be
allocated that portion on which they have made improvements;" and (2) directed that the
controverted land (northern portion of Block I, LC Map 1749, Project No. 27, of Bansalan,
Davao, with Latian River as the dividing line) "should be subdivided into lots of convenient sizes
and allocated to actual occupants, without prejudice to the corporation's right to reimbursement
for the cost of surveying this portion." It may be well to state, at this point, that the decision just
mentioned, signed by the Executive Secretary, was planted upon the facts as found in said
decision.

Plaintiff corporation took the foregoing decision to the Court of First Instance praying that
judgment be rendered declaring: (1) that the decision of the Secretary of Agriculture and Natural
Resources has full force and effect; and (2) that the decision of the Executive Secretary is
contrary to law and of no legal force and effect.

And now subject of this appeal is the judgment of the court a quo dismissing plaintiff's case.

1. Plaintiff's mainstay is Section 4 of Commonwealth Act 141. The precept there is that decisions
of the Director of Lands "as to questions of facts shall be conclusive when approved" by the
Secretary of Agriculture and Natural Resources. Plaintiff's trenchment claim is that this statute is
controlling not only upon courts but also upon the President.

Plaintiff's position is incorrect. The President's duty to execute the law is of constitutional
origin.3 So, too, is his control of all executive departments.4 Thus it is, that department heads are
men of his confidence. His is the power to appoint them; his, too, is the privilege to dismiss them
at pleasure. Naturally, he controls and directs their acts. Implicit then is his authority to go over,
confirm, modify or reverse the action taken by his department secretaries. In this context, it may
not be said that the President cannot rule on the correctness of a decision of a department
secretary.

Particularly in reference to the decisions of the Director of Lands, as affirmed by the Secretary of
Agriculture and Natural Resources, the standard practice is to allow appeals from such decisions
to the Office of the President.5This Court has recognized this practice in several cases. In one,
the decision of the Lands Director as approved by the Secretary was considered superseded by
that of the President's appeal.6 In other cases, failure to pursue or resort to this last remedy of
appeal was considered a fatal defect, warranting dismissal of the case, for non-exhaustion of all
administrative remedies.7

Parenthetically, it may be stated that the right to appeal to the President reposes upon the
President's power of control over the executive departments.8 And control simply means "the
power of an officer to alter or modify or nullify or set aside what a subordinate officer had done
in the performance of his duties and to substitute the judgment of the former for that of the
latter."9

This unquestionably negates the assertion that the President cannot undo an act of his department
secretary.

2. Plaintiff next submits that the decision of the Executive Secretary herein is an undue
delegation of power. The Constitution, petitioner asserts, does not contain any provision whereby
the presidential power of control may be delegated to the Executive Secretary. It is argued that it
is the constitutional duty of the President to act personally upon the matter.

It is correct to say that constitutional powers there are which the President must exercise in
person.10 Not as correct, however, is it so say that the Chief Executive may not delegate to his
Executive Secretary acts which the Constitution does not command that he perform in
person.11 Reason is not wanting for this view. The President is not expected to perform in person
all the multifarious executive and administrative functions. The Office of the Executive
Secretary is an auxiliary unit which assists the President. The rule which has thus gained
recognition is that "under our constitutional setup the Executive Secretary who acts for and in
behalf and by authority of the President has an undisputed jurisdiction to affirm, modify, or even
reverse any order" that the Secretary of Agriculture and Natural Resources, including the
Director of Lands, may issue.12

3. But plaintiff underscores the fact that the Executive Secretary is equal in rank to the other
department heads, no higher than anyone of them. From this, plaintiff carves the argument that
one department head, on the pretext that he is an alter ego of the President, cannot intrude into
the zone of action allocated to another department secretary. This argument betrays lack of
appreciation of the fact that where, as in this case, the Executive Secretary acts "[b]y authority of
the President," his decision is that of the President's. Such decision is to be given full faith and
credit by our courts. The assumed authority of the Executive Secretary is to be accepted. For,
only the President may rightfully say that the Executive Secretary is not authorized to do so.
Therefore, unless the action taken is "disapproved or reprobated by the Chief Executive,"13 that
remains the act of the Chief Executive, and cannot be successfully assailed.14 No such
disapproval or reprobation is even intimated in the record of this case.

For the reasons given, the judgment under review is hereby affirmed. Costs against plaintiff. So
ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Castro and Angeles,
JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. Nos. L-32370 & 32767 April 20, 1983

SIERRA MADRE TRUST, petitioner,

vs.
HONORABLE SECRETARY OF AGRICULTURE AND NATURAL RESOURCES,
DIRECTOR OF MINES, JUSAN TRUST MINING COMPANY, and J & S
PARTNERSHIP, respondents.

Lobruga Rondoz & Cardenas Law Offices for petitioner.

Fortunato de Leon for respondents.

ABAD SANTOS, J.:

This is a petition to review a decision of the Secretary of Agriculture and Natural Resources
dated July 8, 1970, in DANR Cases Numbered 3502 and 3502-A. The decision affirmed a
decision of the Director of Mines dated November 6, 1969.

The appeal was made pursuant to Sec. 61 of the Mining Law (C.A. No. 137, as amended) which
provides: "... Findings of facts in the decision or order of the Director of Mines when affirmed by
the Secretary of Agriculture and Natural Resources shall be final and conclusive, and the
aggrieved party or parties desiring to appeal from such decision or order shall file in the Supreme
Court a petition for review wherein only questions of law may be raised."

The factual background is given in the brief of the petitioner-appellant which has not been
contradicted by the respondents-appellees and is as follows:

On July 26, 1962, the Sierra Madre Trust filed with the Bureau of Mines an
Adverse Claim against LLA No. V-7872 (Amd) of the Jusan Trust Mining
Company over six (6) lode mineral claims, viz.: (1) Finland 2, (2) Finland 3, (3)
Finland 5, (4) Finland 6, (5) Finland 8 and (6) Finland 9, all registered on
December 11, 1964 with the office of the Mining Recorder of Nueva Vizcaya,
and all situated in Sitio Maghanay, Barrio Abaca Municipality of Dupax,
Province of Nueva Vizcaya.

The adverse claim alleged that the aforementioned six (6) lode minerals claims
covered by LLA No. V-7872 (Amd) encroached and overlapped the eleven (11)
lode mineral claims of the herein petitioner Sierra Madre Trust, viz., (1) A-12, (2)
H-12, (3) JC-11, (4) W-11, (5) JN-11, (6)WM-11, (7) F-10, (8) A-9, (9) N-9, (10)
W-8, and (11) JN-8, all situated in Sitio Taduan Barrio of Abaca, Municipality of
Dupax, Province of Nueva Vizcaya, and duly registered with the office of the
Mining Recorder at Bayombong, Nueva Vizcaya on May 14, 1965.

The adverse claim prayed for an order or decision declaring the above- mentioned
six (6) lode mineral claims of respondent Jusan Trust Mining Company, null,
void, and illegal; and denying lode lease application LLA No. V-7872 over said
claims. Further, the adverse claimant prayed for such other reliefs and remedies
available in the premises.

This adverse claim was docketed in the Bureau of Mines as Mines Administrative
Case No. V-404, and on appeal to the Department of Agriculture and Natural
Resources as DANR Case No. 3502.

Likewise, on the same date July 26, 1966, the same Sierra Madre Trust filed with
the Bureau of Mines an Adverse Claim against LLA No. V-9028 of the J & S
Partnership over six (6) lode mineral claims viz.: (1) A-19, (2) A-20, (3) A-24, (4)
A-25, (5) A-29, and (6) A-30, all registered on March 30, 1965 and amended
August 5, 1965, with the office of the Mining Recorder of Nueva Vizcaya, and
 situated in Sitio Gatid, Barrio of Abaca Municipality of Dupax, Province of
Nueva Vizcaya.

The adverse claim alleged that the aforementioned six (6) lode mineral claim
covered by LLA No. V-9028, encroached and overlapped the thirteen (13) lode
mineral claims of herein petitioner Sierra Madre Trust, viz.: (1) Wm-14, (2) F-14,
(3) A-13, (4) H-12 (5) Jc-12, (6) W-12, (7) Jn-11, (8) Wm-11, (9) F-11, (10) Wm-
11, (11) F-11; (12) H-9 and (13) Jc-9, all situated in Sitio Taduan, Barrio of
Abaca Municipality of Dupax, Province of Nueva Vizcaya and duly registered
with the office of the Mining Recorder at Bayombong, Nueva Vizcaya, on May
14,1965.

The adverse claim prayed for an order or decision declaring the above- mentioned
six (6) claims of respondent J & S Partnership, null void, and illegal; and denying
lode lease application LLA No. V-9028 over the said claims. Further, the adverse
claimant prayed for such other reliefs and remedies available in the premises.

This adverse claim was docketed in the Bureau of Mines as Mines Administrative
Case No. V-404, and on appeal to the Department of Agriculture and Natural
Resources as DANR Case No. 3502A.

These two (2) adverse claims, MAC Nos. V-403 and V-404 were jointly heard in
the Bureau of Mines, and also jointly considered in the appeal in the Department
of Agriculture and Natural Resources.

The dispositive portion of the decision rendered by the Director of Mines reads:

IN VIEW OF THE FOREGOING, this Office believes and so holds that the
respondents have the preferential right over their "Finland-2", "Finland- 3",
"Finland-5", "Finland-6", "Finland-8", "Finland-9", "A-19", "A-20", "A-24", "A-
25", "A-29" and "A-30" mining claims. Accordingly, the protests (adverse claims)
filed by protestant Sierra Madre Trust should be, as hereby they are,
DISMISSED.

And that of the Secretary of Agriculture and Natural Resources reads:

IN THE LIGHT OF ALL THE FOREGOING, the appeal interposed by the

appellant, Sierra Madre Trust is hereby dismissed and the decision of the Director
of Mines dated November 6, 1969, affirmed. "

The adverse claims of Sierra Madre Trust against Jusan Trust Mining Company and J and S
Partnership were based on the allegation that the lode lease applications (LLA) of the latter
"encroached and overlapped" the former's mineral claims, However, acting on the adverse
claims, the Director of Mines found that, "By sheer force of evidence, this Office is constrained
to believe that there exists no conflict or overlapping between the protestant's and respondents'
mining claims. " And this finding was affirmed by the Secretary of Agriculture and Natural
Resources thus: "Anent the first allegation, this Office finds that the Director of Mines did not err
when he found that the twelve (12) claims of respondents Jusan Trust Mining Company and J &
S Partnership did not encroach and overlap the eighteen (18) lode mineral claims of the appellant
Sierra Madre Trust. For this fact has been incotrovertibly proven by the records appertaining to
the case."

It should be noted that according to the Director of Mines in his decision, "during the intervening
period from the 31st day after the discovery [by the respondents] to the date of location nobody
else located the area covered thereby. ... the protestant [petitioner herein] did not establish any
intervening right as it is our findings that their mining claims do not overlap respondents' mining
claims."

After the Secretary of Agriculture and Natural Resources had affirmed the factual findings of the
Director of Mines to the effect that there was no overlapping of claims and which findings were
final and conclusive, Sierra Madre Trust should have kept its peace for obviously it suffered no
material injury and had no pecuniary interest to protect. But it was obstinate and raised this legal
question before Us: "May there be a valid location of mining claims after the lapse of thirty (30)
days from date of discovery, in contravention to the mandatory provision of Section 33 of the
New Mining Law (Com. Act No. 137, as amended)?" It also raised ancillary questions.

We see no reason why We have to answer the questions in this petition considering that there is
no justiciable issue between the parties. The officers of the Executive Department tasked with
administering the Mining Law have found that there is neither encroachment nor overlapping in
respect of the claims involved. Accordingly, whatever may be the answers to the questions will
not materially serve the interests of the petitioner. In closing it is useful to remind litigation
prone individuals that the interpretation by officers of laws which are entrusted to their
administration is entitled to great respect.' In his decision, the Secretary of Agriculture and
Natural Resources said: "This Office is in conformity with the findings of the Director of Mines
that the mining claims of the appellees were validly located, surveyed and registered."

Finally, the petitioner also asks: "May an association and/or partnership registered with the
Mining Recorder of a province, but not registered with the Securities and Exchange
Commission, be vested with juridical personality to enable it to locate and then lease mining
claims from the government?" Suffice it to state that this question was not raised before the
Director of Mines and the Secretary of Agriculture and Natural Resources. There is also nothing
in the record to indicate whether or not the appellees are registered with the Securities and
Exchange Commission. For these reasons, even assuming that there is a justiciable issue between
the parties, this question cannot be passed upon.

WHEREFORE, the petition for review is hereby dismissed for lack of merit. Costs against the
petitioner.

SO ORDERED.

Makasiar (Chairman), Concepcion Jr., Guerrero, De Castro and Escolin JJ., concur.
Aquino, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-50444 August 31, 1987

ANTIPOLO REALTY CORPORATION, petitioner,

vs.
THE NATIONAL HOUSING AUTHORITY, HON. G.V. TOBIAS, in his capacity as
General Manager of the National Housing Authority, THE HON. JACOBO C. CLAVE, in
his capacity as Presidential Executive Assistant and VIRGILIO A. YUSON, respondents.

FELICIANO, J.:

By virtue of a Contract to Sell dated 18 August 1970, Jose Hernando acquired prospective and
beneficial ownership over Lot. No. 15, Block IV of the Ponderosa Heights Subdivision in
Antipolo, Rizal, from the petitioner Antipolo Realty Corporation.

On 28 August 1974, Mr. Hernando transferred his rights over Lot No. 15 to private respondent
Virgilio Yuson. The transfer was embodied in a Deed of Assignment and Substitution of Obligor
(Delegacion), executed with the consent of Antipolo Realty, in which Mr. Yuson assumed the
performance of the vendee's obligations under the original contract, including payment of his
predecessor's installments in arrears. However, for failure of Antipolo Realty to develop the
subdivision project in accordance with its undertaking under Clause 17 of the Contract to Sell,
Mr. Yuson paid only the arrearages pertaining to the period up to, and including, the month of
August 1972 and stopped all monthly installment payments falling due thereafter Clause 17
reads:

Clause 17. — SUBDIVISION BEAUTIFICATION. To insure the beauty of the

subdivision in line with the modern trend of urban development, the SELLER
hereby obligates itself to provide the subdivision with:

a) Concrete curbs and gutters

b) Underground drainage system

c) Asphalt paved roads

d) Independent water system

 e) Electrical installation with concrete posts.

f) Landscaping and concrete sidewall

g) Developed park or amphi-theatre

h) 24-hour security guard service.

These improvements shall be complete within a period of two (2) years from date
of this contract. Failure by the SELLER shall permit the BUYER to suspend his
monthly installments without any penalties or interest charges until such time that
such improvements shall have been completed. 1

On 14 October 1976, the president of Antipolo Realty sent a notice to private respondent Yuson
advising that the required improvements in the subdivision had already been completed, and
requesting resumption of payment of the monthly installments on Lot No. 15. For his part, Mr.
Yuson replied that he would conform with the request as soon as he was able to verify the truth
of the representation in the notice.

In a second letter dated 27 November 1976, Antipolo Realty reiterated its request that Mr. Yuson
resume payment of his monthly installments, citing the decision rendered by the National
Housing Authority (NHA) on 25 October 1976 in Case No. 252 (entitled "Jose B. Viado Jr.,
complainant vs. Conrado S. Reyes, respondent") declaring Antipolo Realty to have "substantially
complied with its commitment to the lot buyers pursuant to the Contract to Sell executed by and
between the lot buyers and the respondent." In addition, a formal demand was made for full and
immediate payment of the amount of P16,994.73, representing installments which, Antipolo
Realty alleged, had accrued during the period while the improvements were being completed —
i.e., between September 1972 and October 1976.

Mr. Yuson refused to pay the September 1972-October 1976 monthly installments but agreed to
pay the post October 1976 installments. Antipolo Realty responded by rescinding the Contract to
Sell, and claiming the forfeiture of all installment payments previously made by Mr. Yuson.

Aggrieved by the rescission of the Contract to Sell, Mr. Yuson brought his dispute with Antipolo
Realty before public respondent NHA through a letter-complaint dated 10 May 1977 which
complaint was docketed in NHA as Case No. 2123.

Antipolo Realty filed a Motion to Dismiss which was heard on 2 September 1977. Antipolo
Realty, without presenting any evidence, moved for the consolidation of Case No. 2123 with
several other cases filed against it by other subdivision lot buyers, then pending before the NHA.
In an Order issued on 7 February 1978, the NHA denied the motion to dismiss and scheduled
Case No. 2123 for hearing.

After hearing, the NHA rendered a decision on 9 March 1978 ordering the reinstatement of the
Contract to Sell under the following conditions:
 l) Antipolo Realty Corporation shall sent [sic] to Virgilio Yuzon a statement of
account for the monthly amortizations from November 1976 to the present;

m) No penalty interest shall be charged for the period from November 1976 to the
date of the statement of account; and

n) Virgilio Yuzon shall be given sixty (60) days to pay the arrears shown in the
statement of account. 2

Antipolo Realty filed a Motion for Reconsideration asserting: (a) that it had been denied due
process of law since it had not been served with notice of the scheduled hearing; and (b) that the
jurisdiction to hear and decide Mr. Yuson's complaint was lodged in the regular courts, not in the
NHA, since that complaint involved the interpretation and application of the Contract to Sell.

The motion for reconsideration was denied on 28 June 1978 by respondent NHA General
Manager G.V. Tobias, who sustained the jurisdiction of the NHA to hear and decide the Yuson
complaint. He also found that Antipolo Realty had in fact been served with notice of the date of
the hearing, but that its counsel had failed to attend the hearing. 3 The case was submitted for
decision, and eventually decided, solely on the evidence presented by the complainant.

On 2 October 1978, Antipolo Realty came to this Court with a Petition for certiorari and
Prohibition with Writ of Preliminary Injunction, which was docketed as G.R. No. L-49051. Once
more, the jurisdiction of the NHA was assailed. Petitioner further asserted that, under Clause 7 of
the Contract to Sell, it could validly terminate its agreement with Mr. Yuson and, as a
consequence thereof, retain all the prior installment payments made by the latter. 4

This Court denied certiorari in a minute resolution issued on 11 December 1978, "without
prejudice to petitioner's pursuing the administrative remedy." 5 A motion for reconsideration was
denied on 29 January 1979.

Thereafter, petitioner interposed an appeal from the NHA decision with the Office of the
President which, on 9 March 1979, dismissed the same through public respondent Presidential
Executive Assistant Jacobo C. Clave. 6

In the present petition, Antipolo Realty again asserts that, in hearing the complaint of private
respondent Yuson and in ordering the reinstatement of the Contract to Sell between the parties,
the NHA had not only acted on a matter beyond its competence, but had also, in effect, assumed
the performance of judicial or quasi-judicial functions which the NHA was not authorized to
perform.

We find the petitioner's arguments lacking in merit.

It is by now commonplace learning that many administrative agencies exercise and perform
adjudicatory powers and functions, though to a limited extent only. Limited delegation of
judicial or quasi-judicial authority to administrative agencies (e.g., the Securities and Exchange
Commission and the National Labor Relations Commission) is well recognized in our
jurisdiction,7 basically because the need for special competence and experience has been
recognized as essential in the resolution of questions of complex or specialized character and
because of a companion recognition that the dockets of our regular courts have remained
crowded and clogged. In Spouses Jose Abejo and Aurora Abejo, et al. vs. Hon. Rafael dela Cruz,
etc., et al., 8 the Court, through Mr. Chief Justice Teehankee, said:

In the fifties, the Court taking cognizance of the move to vest jurisdiction in
administrative commissions and boards the power to resolve specialized disputes
in the field of labor (as in corporations, public transportation and public utilities)
ruled that Congress in requiring the Industrial Court's intervention in the
resolution of labor management controversies likely to cause strikes or lockouts
meant such jurisdiction to be exclusive, although it did not so expressly state in
the law. The Court held that under the "sense-making and expeditious doctrine of
primary jurisdiction . . . the courts cannot or will not determine a controversy
involving a question which is within the jurisdiction of an administrative tribunal
where the question demands the exercise of sound administrative discretion
requiring the special knowledge, experience, and services of the administrative
tribunal to determine technical and intricate matters of fact, and a uniformity of
ruling is essential to comply with the purposes of the regulatory statute
administered" (Pambujan Sur United Mine Workers v. Samar Mining Co., Inc.,
94 Phil, 932, 941 [1954]).

In this era of clogged court dockets, the need for specialized administrative
boards or commissions with the special knowledge, experience and capability to
hear and determine promptly disputes on technical matters or essentially factual
matters, subject to judicial review in case of grave abuse of discretion has become
well nigh indispensable. Thus, in 1984, the Court noted that 'between the power
lodged in an administrative body and a court, the unmistakeable trend has been to
refer it to the former, "Increasingly, this Court has been committed to the view
that unless the law speaks clearly and unequivocably, the choice should fall on fan
administrative agency]" ' (NFL v. Eisma, 127 SCRA 419, 428, citing precedents).
The Court in the earlier case of Ebon vs. De Guzman (113 SCRA 52, 56 [1982]),
noted that the lawmaking authority, in restoring to the labor arbiters and the
NLRC their jurisdiction to award all kinds of damages in labor cases, as against
the previous P.D. amendment splitting their jurisdiction with the regular courts,
"evidently, . . . had second thoughts about depriving the Labor Arbiters and the
NLRC of the jurisdiction to award damages in labor cases because that setup
would mean duplicity of suits, splitting the cause of action and possible
conflicting findings and conclusions by two tribunals on one and the same claim."

In an even more recent case, Tropical Homes, Inc. vs. National Housing Authority, et al., 9 Mr.
Justice Gutierrez, speaking for the Court, observed that:

There is no question that a statute may vest exclusive original jurisdiction in an

administrative agency over certain disputes and controversies falling within the
agency's special expertise. The very definition of an administrative agency
 includes its being vested with quasi-judicial powers. The ever increasing variety
of powers and functions given to administrative agencies recognizes the need for
the active intervention of administrative agencies in matters calling for technical
knowledge and speed in countless controversies which cannot possibly be handled
by regular courts.

In general the quantum of judicial or quasi-judicial powers which an administrative agency may
exercise is defined in the enabling act of such agency. In other words, the extent to which an
administrative entity may exercise such powers depends largely, if not wholly, on the provisions
of the statute creating or empowering such agency. 10 In the exercise of such powers, the agency
concerned must commonly interpret and apply contracts and determine the rights of private
parties under such contracts. One thrust of the multiplication of administrative agencies is that
the interpretation of contracts and the determination of private rights thereunder is no longer a
uniquely judicial function, exercisable only by our regular courts.

Thus, the extent to which the NHA has been vested with quasi-judicial authority must be
determined by referring to the terms of Presidential Decree No. 957, known as "The Subdivision
and Condominium Buyers' Decree." 11 Section 3 of this statute provides as follows:

National Housing Authority. — The National Housing Authority shall have

exclusive jurisdiction to regulate the real estate trade and business in accordance
with the provisions of this decree (emphasis supplied)

The need for and therefore the scope of the regulatory authority thus lodged in the NHA are
indicated in the second and third preambular paragraphs of the statute which provide:

WHEREAS, numerous reports reveal that many real estate subdivision owners,
developers, operators, and/or sellers have reneged on their representations and
obligations to provide and maintain properly subdivision roads, drainage,
sewerage, water systems lighting systems and other similar basic
requirements, thus endangering the health and safety of home and lot buyers;

WHEREAS, reports of alarming magnitude also show cases of swindling and

fraudulent manipulations perpetrated by unscrupulous subdivision and
condominium sellers and operators, such as failure to deliver titles to the buyers
or titles free from liens and encumbrances, and to pay real estate taxes, and
fraudulent sales of the same subdivision lots to different innocent purchasers for
value — . (emphasis supplied)

Presidential Decree No. 1344 12 clarified and spelled out the quasi-judicial dimensions of the
grant of regulatory authority to the NHA in the following quite specific terms:

SECTION 1. In the exercise of its functions to regulate the real estate trade and
business and in addition to its powers provided for in Presidential Decree No.
957, the National Housing Authority shall have exclusive jurisdiction to hear and
decide cases of the following nature:
 A. Unsound real estate business practices:

B. Claims involving refund and any other claims filed by sub- division lot or
condominium unit buyer against the project owner, developer, dealer, broker or
salesman; and

C. Cases involving specific performance of contractual and statutory obligations

filed by buyers of subdivision lots or condominium units against the owner,
developer, dealer, broker or salesman.(emphasis supplied.)

The substantive provisions being applied and enforced by the NHA in the instant case are found
in Section 23 of Presidential Decree No. 957 which reads:

Sec. 23. Non-Forfeiture of Payments. — No installment payment made by a buyer

in a subdivision or condominium project for the lot or unit he contracted to buy
shall be forfeited in favor of the owner or developer when the buyer, after due
notice to the owner or developer, desists from further payment due to the failure
of the owner or developer to develop the subdivision or condominium project
according to the approved plans and within the time limit for complying with the
same. Such buyer may, at his option, be reimbursed the total amount paid
including amortization and interests but excluding delinquency interests, with
interest thereon at the legal rate. (emphasis supplied.)

Having failed to comply with its contractual obligation to complete certain specified
improvements in the subdivision within the specified period of two years from the date of the
execution of the Contract to Sell, petitioner was not entitled to exercise its options under Clause
7 of the Contract. Hence, petitioner could neither rescind the Contract to Sell nor treat the
installment payments made by the private respondent as forfeited in its favor. Indeed, under the
general Civil Law, 13 in view of petitioner's breach of its contract with private respondent, it is
the latter who is vested with the option either to rescind the contract and receive reimbursement
of an installment payments (with legal interest) made for the purchase of the subdivision lot in
question, or to suspend payment of further purchase installments until such time as the petitioner
had fulfilled its obligations to the buyer. The NHA was therefore correct in holding that private
respondent's prior installment payments could not be forfeited in favor of petitioner.

Neither did the NHA commit any abuse, let alone a grave abuse of discretion or act in excess of
its jurisdiction when it ordered the reinstatement of the Contract to Sell between the parties. Such
reinstatement is no more than a logical consequence of the NHA's correct ruling, just noted, that
the petitioner was not entitled to rescind the Contract to Sell. There is, in any case, no question
that under Presidential Decree No. 957, the NHA was legally empowered to determine and
protect the rights of contracting parties under the law administered by it and under the respective
agreements, as well as to ensure that their obligations thereunder are faithfully performed.

We turn to petitioner's assertion that it had been denied the right to due process. This assertion
lacks substance. The record shows that a copy of the order denying the Motion to Dismiss and
scheduling the hearing of the complaint for the morning of 6 March 1978, was duly served on
counsel for petitioner, as evidenced by the annotation appearing at the bottom of said copy
indicating that such service had been effected. 14 But even if it be assumed, arguendo, that such
notice had not been served on the petitioner, nevertheless the latter was not deprived of due
process, for what the fundamental law abhors is not the absence of previous notice but rather the
absolute lack of opportunity to be heard. 15 In the instant case, petitioner was given ample
opportunity to present its side and to be heard on a motion for reconsideration as well, and not
just on a motion to dismiss; the claim of denial of due process must hence sound even more
hollow. 16

We turn finally to the question of the amount of P16,994.73 which petitioner insists had accrued
during the period from September 1972 to October 1976, when private respondent had
suspended payment of his monthly installments on his chosen subdivision lot. The NHA in its 9
March 1978 resolution ruled that the regular monthly installments under the Contract to Sell did
not accrue during the September 1972 — October 1976 period:

[R]espondent allowed the complainant to suspend payment of his monthly

installments until the improvements in the subdivision shall have been completed.
Respondent informed complainant on November 1976 that the improvements
have been completed. Monthly installments during the period of suspension of
payment did not become due and demandable Neither did they accrue Such must
be the case, otherwise, there is no sense in suspending payments. If the suspension
is lifted the debtor shall resume payments but never did he incur any arrears.

Such being the case, the demand of respondent for complainant to pay the arrears
due during the period of suspension of payment is null and void. Consequently,
the notice of cancellation based on the refusal to pay the s that were not due and
demandable is also null and void. 17

The NHA resolution is probably too terse and in need of certification and amplification. The
NHA correctly held that no installment payments should be considered as having accrued during
the period of suspension of payments. Clearly, the critical issue is what happens to the
installment payments which would have accrued and fallen due during the period of suspension
had no default on the part of the petitioner intervened. To our mind, the NHA resolution is most
appropriately read as directing that the original period of payment in the Contract to Sell must be
deemed extended by a period of time equal to the period of suspension (i.e., by four (4) years and
two (2) months) during which extended time (tacked on to the original contract period) private
respondent buyer must continue to pay the monthly installment payments until the entire original
contract price shall have been paid. We think that such is the intent of the NHA resolution which
directed that "[i]f the suspension is lifted, the debtor shall resume payments" and that such is the
most equitable and just reading that may be given to the NHA resolution. To permit Antipolo
Realty to collect the disputed amount in a lump sum after it had defaulted on its obligations to its
lot buyers, would tend to defeat the purpose of the authorization (under Sec. 23 of Presidential
Decree No. 957, supra) to lot buyers to suspend installment payments. As the NHA resolution
pointed out, [s]uch must be the case, otherwise, there is no sense in suspending payments." Upon
the other hand, to condone the entire amount that would have become due would be an
expressively harsh penalty upon the petitioner and would result in the unjust enrichment of the
private respondent at the expense of the petitioner. It should be recalled that the latter had
already fulfilled, albeit tardily, its obligations to its lot buyers under their Contracts to Sell. At
the same time, the lot buyer should not be regarded as delinquent and as such charged penalty
interest. The suspension of installment payments was attributable to the petitioner, not the private
respondent. The tacking on of the period of suspension to the end of the original period precisely
prevents default on the part of the lot buyer. In the words of the NHA resolution, "never would
[the buyer] incur any arrears."

WHEREFORE, the Petition for certiorari is DISMISSED. The NHA decision appealed from is
hereby AFFIRMED and clarified as providing for the lengthening of the original contract period
for payment of installments under the Contract to Sell by four (4) years and two (2) months,
during which extended time private respondent shall continue to pay the regular monthly
installment payments until the entire original contract price shall have been paid. No
pronouncement as to costs.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

G.R. No. 161811 April 12, 2006

THE CITY OF BAGUIO, MAURICIO DOMOGAN, and ORLANDO

GENOVE, Petitioners,
vs.
FRANCISCO NIÑO, JOSEFINA NIÑO, EMMANUEL NIÑO, and EURLIE
OCAMPO, Respondents.

DECISION

CARPIO MORALES, J.:

The Bureau of Lands awarded on May 13, 1966 to Narcisa A. Placino (Narcisa) a parcel of land
identified as Lot No. 10 (the lot) located at Saint Anthony Road, Dominican-Mirador Barangay,
Baguio City.

Francisco Niño (Niño), one of the herein respondents, who has been occupying the lot, contested
the award by filing a Petition Protest on December 23, 1975 before the Bureau of Lands.

The Director of Lands dismissed the Petition Protest by Order of November 11, 1976.

Niño appealed the dismissal all the way to the Supreme Court but he did not succeed.
The decision of the Director of Lands dated November 11, 1976 having become final and
executory,1 the then-Executive Director of the Department of Environment and Natural
Resources-Cordillera Autonomous Region (DENR-CAR), on petition of Narcisa, issued an
Order of Execution dated February 1, 1993 directing the Community Environment and Natural
Resources Office (CENRO) Officer to enforce the decision "by ordering Petitioner Niño and
those acting in his behalf to refrain from continuously occupying the area and remove whatever
improvements they may have introduced thereto."2

Attempts to enforce the Order of Execution failed, prompting Narcisa to file a complaint for
ejectment before the Baguio City Municipal Trial Court in Cities (MTCC). The MTCC
dismissed Narcisa’s complaint, however, by Order3of August 7, 1996.

Narcisa’s counsel, Atty. Edilberto Claravall (Atty. Claravall), later petitioned the DENR-CAR
for the issuance of a Special Order authorizing the City Sheriff of Baguio, the City Police
Station, and the Demolition Team of the City Government to demolish or remove the
improvements on the lot introduced by Niño. The DENR-CAR denied the petition, citing lack of
jurisdiction over the City Sheriff of Baguio, the City Police Station, and the Demolition Team of
the City Government. The DENR-CAR also invoked Section 14 (now Section 10 (d)) of Rule 39
of the Rules of Court.4

Atty. Claravall thereupon moved to have the Order of Execution previously issued by the
DENR-CAR amended, which was granted. As amended, the Order of Execution addressed to the
CENRO Officer read:

WHEREFORE, pursuant to the provisions of Section 1844 of the Revised Administrative Code
as amended by Act No. 3077, you are hereby enjoined to enforce the aforementioned order, with
the assistance upon request of the City Sheriff of Baguio City, the Demolition Team of Baguio
City and the Baguio City Police Station, by Ordering Petitioner Niño and those acting in his
behalf to refrain from continuously occupying the area and remove whatever improvements
they may have introduced thereto.

xxxx

SO ORDERED.5 (Emphasis and underscoring supplied)

The DENR-CENRO, together with the Demolition Team of Baguio City and the Baguio City
police, desisted, however, in their earlier attempt to enforce the Amended Order of Execution.6

On July 16, 1997, the Demolition Team of Baguio City headed by Engineer Orlando Genove and
the Baguio City Police, on orders of then Baguio City Police Officer-In-Charge (OIC) Donato
Bacquian, started demolishing the houses of Niño and his herein co-respondents.7

The demolition was, however, temporarily stopped upon the instructions of DENR-CENR
Officer Guillermo Fianza, who later advised Niño that the DENR-CENRO would implement the
Amended Order of Execution on August 4, 1997.8
Niño and his wife Josefina Niño thereupon filed a Petition9 for Certiorari and Prohibition with
Prayer for Temporary Restraining Order before the Regional Trial Court (RTC) of Baguio City
against Guillermo Fianza, Teofilo Olimpo of the DENR-CENRO, Mayor Mauricio Domogan
(hereafter petitioner), Atty. Claravall, Engr. Orlando Genove (hereafter petitioner), Rolando
Angara, and Police Officer Donato Bacquian challenging the Amended Order of Execution
issued by the DENR-CENRO.1avvphil.net

The Niño spouses later filed an Amended Petition10 by impleading Emmanuel Niño and Eurlie
Ocampo as therein co-petitioners and the City of Baguio (hereafter petitioner) and Narcisa as
therein additional respondents, and further praying for damages.

Branch 6 of the Baguio RTC dismissed the petition of Niño et al. (hereafter respondents) for lack
of merit.11Respondents’ Motion for Reconsideration12 having been denied, they filed a Petition
for Review13 under Rule 42 of the Rules before the Court of Appeals.

By Decision14 of December 11, 2002, the Court of Appeals granted the Petition for Review,
holding that Sec. 10(d) of Rule 39 of the Rules reading:

SEC. 10. Execution of judgments for specific act.

xxxx

(d) Removal of improvements on property subject of execution. — When the property subject of
the execution contains improvements constructed or planted by the judgment obligor or his
agent, the officer shall not destroy, demolish or remove said improvements except upon special
order of the court, issued upon motion of the judgment obligee after due hearing and after the
former has failed to remove the same within a reasonable time fixed by the court. (Underscoring
supplied)

applies.

Thus disposed the appellate court:

WHEREFORE, the instant appeal is hereby GRANTED and the Orders dated September 24,
1997 and November 23, 1998 are hereby SET ASIDE. Public respondent City Mayor Mauricio
Domogan thru the Demolition Team and City Engineer’s Office are hereby ordered to cease and
desist from enforcing the amended order of execution issued by Oscar N. Hamada, Regional
Executive Director of the Department of Environmental and Natural Resources, concerning the
demolition or removal of the structures made by petitioners until private respondent applied for a
special order abovementioned with the proper court.1avvphil.net

SO ORDERED.15 (Underscoring supplied)

Respondents filed before the appellate court an Ex-Parte Motion for Reconsideration16 on
January 9, 2003, alleging that some of the reliefs they prayed for in their petition were left
unacted upon.17 Petitioners too filed a Motion for Reconsideration18 on January 28, 2003, raising
the following grounds:

1. THE HONORABLE COURT FAILED TO CONSIDER THAT THE CITY MAYOR

HAS THE POWER TO ORDER THE DEMOLITION OF ILLEGALLY-BUILT
STRUCTURES;

2. THE HONORABLE COURT GRAVELY ERRED IN GIVING DUE COURSE TO

THE PETITION FOR REVIEW;

3. THE HONORABLE COURT MISAPPLIED SEC. 10 (d), RULE 39 of the RULES OF

COURT.19(Underscoring supplied)

In support of the first ground, petitioners raised before the appellate court, in their Motion for
Reconsideration, for the first time, the power of the City Mayor to validly order the demolition of
a structure constructed without a building permit pursuant to Sec. 455(b) 3(vi) of the Local
Government Code of 1991 in relation to the National Building Code of the Philippines.

Alleging that respondents built their house without the required entry and building permits,
petitioners argued that the City Mayor may order the demolition of a house without a special
court order.20

The Court of Appeals denied both parties’ motions for reconsideration by Resolution21 of
December 17, 2003.

Hence, the present petition of the City of Baguio, Mayor Domogan (now a Congressman), and
Orlando Genove, faulting the appellate court:

1. . . . IN RULING THAT A SPECIAL COURT ORDER IS NEEDED FOR THE

DEMOLITION OF RESPONDENTS’ STRUCTURES;

2. . . . IN APPLYING SEC. 10(d) RULE 39 OF THE RULES OF COURT IN THIS

CASE;

3. . . . IN ENTERTAINING RESPONDENTS’ PETITION FOR REVIEW.22

The petition fails.

While it is noted that respondent’s appeal to the Court of Appeals was erroneously brought under
Rule 42 of the Rules of Court, instead of under Rule 41, the RTC having rendered the questioned
decision in the exercise of its original, not appellate, jurisdiction, this Court overlooks the error
in view of the merits of respondents’ case.23

Petitioners’ contention that the enforcement of the Amended Order of Execution does not need a
hearing and court order which Sec. 10(d) of Rule 39 of the Rules of Court requires does not lie.
That an administrative agency which is clothed with quasi-judicial functions issued the Amended
Order of Execution is of no moment, since the requirement in Sec. 10 (d) of Rule 39 of the Rules
of Court echoes the constitutional provision that "no person shall be deprived of life, liberty or
property without due process of law, nor shall any person be denied the equal protection of the
laws."24

Antipolo Realty Corporation v. National Housing Authority teaches:

In general, the quantum of judicial or quasi-judicial powers which an administrative agency may
exercise is defined in the enabling act of such agency. In other words, the extent to which an
administrative entity may exercise such powers depends largely, if not wholly, on the provisions
of the statute creating or empowering such agency.25(Underscoring supplied)

There is, however, no explicit provision granting the Bureau of Lands (now the Land
Management Bureau) or the DENR (which exercises control over the Land Management Bureau)
the authority to issue an order of demolition26— which the Amended Order of Execution, in
substance, is.

Indeed,

[w]hile the jurisdiction of the Bureau of Lands is confined to the determination of the respective
rights of rival claimants to public lands or to cases which involve the disposition of public
lands, the power to determine who has the actual, physical possession or occupation or the
better right of possession over public lands remains with the courts.

The rationale is evident. The Bureau of Lands does not have the wherewithal to police public
lands. Neither does it have the means to prevent disorders or breaches of peace among the
occupants. Its power is clearly limited to disposition and alienation and while it may decide
disputes over possession, this is but in aid of making the proper awards. The ultimate power to
resolve conflicts of possession is recognized to be within the legal competence of the civil
courts and its purpose is to extend protection to the actual possessors and occupants with a
view to quell social unrest.27 (Emphasis added)

Consequently, this Court held:28

x x x the power to order the sheriff to remove improvements and turn over the possession
of the land to the party adjudged entitled thereto, belongs only to the courts of justice and
not to the Bureau of Lands.29(Emphasis and underscoring supplied)

In fine, it is the court sheriff which is empowered to remove improvements introduced by

respondents on, and turn over possession of, the lot to Narcisa.

Petitioners’ invocation of the City Mayor’s authority under Sec. 455(b) 3(vi) of the Local
Government Code to order the demolition or removal of an illegally constructed house, building,
or structure within the period prescribed by law or ordinance and their allegation that
respondents’ structures were constructed without building permits30 were not raised before the
trial court. Petitioners having, for the first time, invoked said section of the Local Government
Code and respondents’ lack of building entry permits in their Motion for Reconsideration of the
Court of Appeals’ decision, it was correctly denied of merit,31 it being settled that matters,
theories or arguments not brought out in the proceedings below will ordinarily not be considered
by a reviewing court as they cannot be raised for the first time on appeal.32

WHEREFORE, the petition is DISMISSED. The questioned Decision and Resolution of the
Court of Appeals are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

EN BANC

DEPARTMENT OF AGRARIAN G.R. No. 162070

REFORM, represented by SECRETARY
JOSE MARI B. PONCE (OIC), Present:
Petitioner, Davide, C.J.,
Puno,
Panganiban,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
Carpio,
- versus - Austria-Martinez,
Corona,
Carpio Morales,
Callejo, Sr.,
Azcuna,
Tinga,
Chico-Nazario and
Garcia, JJ.
DELIA T. SUTTON, ELLA T.
SUTTON-SOLIMAN and Promulgated:
HARRY T. SUTTON,
Respondents. October 19, 2005
x-----------------------------------x
 DECISION

PUNO, J.:

This is a petition for review filed by the Department of Agrarian Reform (DAR) of the Decision

and Resolution of the Court of Appeals, dated September 19, 2003 and February 4, 2004,

respectively, which declared DAR Administrative Order (A.O.) No. 9, series of 1993, null and

void for being violative of the Constitution.

The case at bar involves a land in Aroroy, Masbate, inherited by respondents which has been

devoted exclusively to cow and calf breeding. On October 26, 1987, pursuant to the then existing

agrarian reform program of the government, respondents made a voluntary offer to sell

(VOS)[1] their landholdings to petitioner DAR to avail of certain incentives under the law.

On June 10, 1988, a new agrarian law, Republic Act (R.A.) No. 6657, also known as the

Comprehensive Agrarian Reform Law (CARL) of 1988, took effect. It included in its coverage

farms used for raising livestock, poultry and swine.

On December 4, 1990, in an en banc decision in the case of Luz Farms v. Secretary of

DAR,[2] this Court ruled that lands devoted to livestock and poultry-raising are not included in

the definition of agricultural land. Hence, we declared as unconstitutional certain provisions of

the CARL insofar as they included livestock farms in the coverage of agrarian reform.

In view of the Luz Farms ruling, respondents filed with petitioner DAR a formal request

to withdraw their VOS as their landholding was devoted exclusively to cattle-raising and thus

exempted from the coverage of the CARL.[3]

 On December 21, 1992, the Municipal Agrarian Reform Officer of Aroroy, Masbate,

inspected respondents land and found that it was devoted solely to cattle-raising and breeding.

He recommended to the DAR Secretary that it be exempted from the coverage of the CARL.

On April 27, 1993, respondents reiterated to petitioner DAR the withdrawal of their VOS

and requested the return of the supporting papers they submitted in connection

therewith.[4] Petitioner ignored their request.

On December 27, 1993, DAR issued A.O. No. 9, series of 1993,[5] which provided that

only portions of private agricultural lands used for the raising of livestock, poultry and swine as

of June 15, 1988 shall be excluded from the coverage of the CARL. In determining the area of

land to be excluded, the A.O. fixed the following retention limits, viz: 1:1 animal-land ratio

(i.e., 1 hectare of land per 1 head of animal shall be retained by the landowner), and a ratio of

1.7815 hectares for livestock infrastructure for every 21 heads of cattle shall likewise be

excluded from the operations of the CARL.

On February 4, 1994, respondents wrote the DAR Secretary and advised him to consider as final

and irrevocable the withdrawal of their VOS as, under the Luz Farms doctrine, their entire

landholding is exempted from the CARL.[6]

On September 14, 1995, then DAR Secretary Ernesto D. Garilao issued an Order[7] partially

granting the application of respondents for exemption from the coverage of CARL. Applying the

retention limits outlined in the DAR A.O. No. 9, petitioner exempted 1,209 hectares of

respondents land for grazing purposes, and a maximum of 102.5635 hectares for infrastructure.

Petitioner ordered the rest of respondents landholding to be segregated and placed under

Compulsory Acquisition.

Respondents moved for reconsideration. They contend that their entire landholding
should be exempted as it is devoted exclusively to cattle-raising. Their motion was
denied.[8] They filed a notice of appeal[9] with the Office of the President assailing: (1) the

reasonableness and validity of DAR A.O. No. 9, s. 1993, which provided for a ratio between land

and livestock in determining the land area qualified for exclusion from the CARL, and (2) the

constitutionality of DAR A.O. No. 9, s. 1993, in view of the Luz Farms case which declared

cattle-raising lands excluded from the coverage of agrarian reform.

On October 9, 2001, the Office of the President affirmed the impugned Order of petitioner

DAR.[10] It ruled that DAR A.O. No. 9, s. 1993, does not run counter to the Luz Farms case as

the A.O. provided the guidelines to determine whether a certain parcel of land is being used for

cattle-raising. However, the issue on the constitutionality of the assailed A.O. was left for the

determination of the courts as the sole arbiters of such issue.

On appeal, the Court of Appeals ruled in favor of the respondents. It declared DAR A.O. No. 9,

s. 1993, void for being contrary to the intent of the 1987 Constitutional Commission to exclude

livestock farms from the land reform program of the government. The dispositive portion reads:
WHEREFORE, premises considered, DAR Administrative Order No. 09, Series
of 1993 is hereby DECLARED null and void. The assailed order of the Office of
the President dated 09 October 2001 in so far as it affirmed the Department of
Agrarian Reforms ruling that petitioners landholding is covered by the agrarian
reform program of the government is REVERSED and SET ASIDE.
SO ORDERED.[11]

Hence, this petition.

The main issue in the case at bar is the constitutionality of DAR A.O. No. 9, series of 1993,

which prescribes a maximum retention limit for owners of lands devoted to livestock raising.

Invoking its rule-making power under Section 49 of the CARL, petitioner submits that it issued

DAR A.O. No. 9 to limit the area of livestock farm that may be retained by a landowner pursuant

to its mandate to place all public and private agricultural lands under the coverage of agrarian

reform. Petitioner also contends that the A.O. seeks to remedy reports that some unscrupulous
landowners have converted their agricultural farms to livestock farms in order to evade their

coverage in the agrarian reform program.

Petitioners arguments fail to impress.

Administrative agencies are endowed with powers legislative in nature, i.e., the power to

make rules and regulations. They have been granted by Congress with the authority to issue rules

to regulate the implementation of a law entrusted to them. Delegated rule-making has become a

practical necessity in modern governance due to the increasing complexity and variety of public

functions. However, while administrative rules and regulations have the force and effect of law,

they are not immune from judicial review.[12]They may be properly challenged before the courts

to ensure that they do not violate the Constitution and no grave abuse of administrative discretion

is committed by the administrative body concerned.

The fundamental rule in administrative law is that, to be valid, administrative rules and

regulations must be issued by authority of a law and must not contravene the provisions of

the Constitution.[13] The rule-making power of an administrative agency may not be used to

abridge the authority given to it by Congress or by the Constitution. Nor can it be used to

enlarge the power of the administrative agency beyond the scope intended. Constitutional

and statutory provisions control with respect to what rules and regulations may be

promulgated by administrative agencies and the scope of their regulations.[14]

In the case at bar, we find that the impugned A.O. is invalid as it contravenes the

Constitution. The A.O. sought to regulate livestock farms by including them in the coverage of

agrarian reform and prescribing a maximum retention limit for their ownership. However, the

deliberations of the 1987 Constitutional Commission show a clear intent to exclude, inter
alia, all lands exclusively devoted to livestock, swine and poultry- raising. The Court clarified
in the Luz Farms case that livestock, swine and poultry-raising are industrial activities and do
not fall within the definition of agriculture or agricultural activity. The raising of livestock, swine

and poultry is different from crop or tree farming. It is an industrial, not an agricultural, activity.

A great portion of the investment in this enterprise is in the form of industrial fixed assets, such

as: animal housing structures and facilities, drainage, waterers and blowers, feedmill with

grinders, mixers, conveyors, exhausts and generators, extensive warehousing facilities for feeds

and other supplies, anti-pollution equipment like bio-gas and digester plants augmented by

lagoons and concrete ponds, deepwells, elevated water tanks, pumphouses, sprayers, and other

technological appurtenances.[15]

Clearly, petitioner DAR has no power to regulate livestock farms which have been

exempted by the Constitution from the coverage of agrarian reform. It has exceeded its

power in issuing the assailed A.O.

The subsequent case of Natalia Realty, Inc. v. DAR[16] reiterated our ruling in the Luz

Farms case. In Natalia Realty, the Court held that industrial, commercial and residential lands

are not covered by the CARL.[17] We stressed anew that while Section 4 of R.A. No. 6657

provides that the CARL shall cover all public and private agricultural lands, the term

agricultural land does not include lands classified as mineral, forest, residential,
commercial or industrial. Thus, in Natalia Realty, even portions of the Antipolo Hills
Subdivision, which are arable yet still undeveloped, could not be considered as agricultural

lands subject to agrarian reform as these lots were already classified as residential lands.

A similar logical deduction should be followed in the case at bar. Lands devoted to raising of

livestock, poultry and swine have been classified as industrial, not agricultural, lands and thus

exempt from agrarian reform. Petitioner DAR argues that, in issuing the impugned A.O., it was

seeking to address the reports it has received that some unscrupulous landowners have been

converting their agricultural lands to livestock farms to avoid their coverage by the agrarian
reform. Again, we find neither merit nor logic in this contention. The undesirable scenario
which petitioner seeks to prevent with the issuance of the A.O. clearly does not apply in this
case. Respondents family acquired their landholdings as early as 1948. They have long been in

the business of breeding cattle in Masbate which is popularly known as the cattle-breeding

capital of the Philippines.[18]Petitioner DAR does not dispute this fact. Indeed, there is no

evidence on record that respondents have just recently engaged in or converted to the business of

breeding cattle after the enactment of the CARL that may lead one to suspect that respondents

intended to evade its coverage. It must be stressed that what the CARL prohibits is

the conversion of agricultural lands for non-agricultural purposes after the effectivity of the
CARL. There has been no change of business interest in the case of respondents.

Moreover, it is a fundamental rule of statutory construction that the reenactment of a

statute by Congress without substantial change is an implied legislative approval and adoption of

the previous law. On the other hand, by making a new law, Congress seeks to supersede an

earlier one.[19] In the case at bar, after the passage of the 1988 CARL, Congress enacted R.A. No.

7881[20] which amended certain provisions of the CARL. Specifically, the new law changed the

definition of the terms agricultural activity and commercial farming by dropping from its

coverage lands that are devoted to commercial livestock, poultry and swine-
raising.[21] With this significant modification, Congress clearly sought to align the

provisions of our agrarian laws with the intent of the 1987 Constitutional Commission to

exclude livestock farms from the coverage of agrarian reform.

In sum, it is doctrinal that rules of administrative bodies must be in harmony with the

provisions of the Constitution. They cannot amend or extend the Constitution. To be valid, they

must conform to and be consistent with the Constitution. In case of conflict between an

administrative order and the provisions of the Constitution, the latter prevails.[22] The assailed

A.O. of petitioner DAR was properly stricken down as unconstitutional as it enlarges the
coverage of agrarian reform beyond the scope intended by the 1987 Constitution.
 IN VIEW WHEREOF, the petition is DISMISSED. The assailed Decision and

Resolution of the Court of Appeals, dated September 19, 2003 and February 4, 2004,

respectively, are AFFIRMED. No pronouncement as to costs.

SO ORDERED.

SECOND DIVISION

[A.C. No. 4634. September 24, 1997]

JESUS CABARRUS, JR., complainant, vs. JOSE ANTONIO BERNAS, respondents.

DECISION
TORRES, JR., J.:

On August 30, 1996, Mr. Jesus Cabarrus, Jr. filed and administrative complaint for
disbarment against Atty. Jose Antonio Bernas for alleged violations of Article 172 of the Revised
Penal Code and Code of professional Resposibility. In his complaint-affidavit [1] dated August
12, 1996, complainant alleged as follows:

A.That on April 16, 1996, respondent Ramon B. Pascual, Jr., subscribe under oath before Marie
Lourdes T. Sia Bernas, a notary public in Makati City, wife of lawyer jose Antonio Bernas, a
verification and certification of non-forum shopping which was appended to a complaint for
reconveyance of property and damages, denominated as Civil Case No. 65646, filed before the
Regional Trial Court in National Capital Region, RTC, which case was raffled to RTC Branch
159 in Pasig City. A photocopy of said complaint is hereto attached and marked as Annexex (sic)
A, A-1, A-3, A-4, A-5 and A-6;

B.That as basis for the instant complaint for falsification of public document, I am hereto quoting
verbatim, the test (sic) of Annex A-6, the verification and certification of non-forum shopping
which states:

Ramon B. Pascual, Jr., under oath, depose and states:

He is the plaintiff in this case, and certify that he cause the preparation of the foregoing pleading,
the content of which are true to his personal knowledge and that he has not commenced any
other action or proceeding involving the same issues in any court, including the Supreme Court,
the Court of Appeals, or any other tribunal or agency. If he should learn that a similar action of
(sic) proceeding has been filed or is pending before the Supreme Court or any other Tribunal
agency, he undertake to report to (sic) that the fact within Five (5) days from the notice to this
notice (sic) to this Honorable Court. Underscoring supplied.

C.That the cause of action relied upon by the respondents in Civil Case No. 65646 is fraud,
facilitated by forgery as gleaned from paragraph 15, 16, and 22;

D.That contrary to the tenor, import and meanoing (sic) of the allegation under 1-B of the instant
complaint, respondent and his counsel Jose Antonio Bernas caused the preparation and filing of a
criminal complaint for falsification of a public document on April 11, 1996, (three days before
the filing of the aforecited Civil Case) at the AOED of the National Bureau of Investigation if
(sic) Taff (sic) Ave., a xerox copy of said complaint is hereto attached and marked as Annex B.

D-1.That as stated in Annex B, the gravaman of the affidavit complaint of the respondent is
forgery, the same legal issue in Civil Case No. 65646;

D-2.That as early as August 14, 1995, respondent counsel, Jose Antonio Bernas filed a written
complaint at the NBI for the same cause of action which was reiterated in another letter
submitting to the NBI standard specimen signitures dated October 1995, copies of said letter
complaint are hereto attached and marked as Annexes (sic) C.

E. That respondent Ramon B. Pascual, Jr., on the basis of Annexes A, B, C, D, inclusive of

submarkings knowingly subverted and perverted the truth when he falsify certified (sic) and
verified under oath in the verification and certification of non-forum shopping, that:

He has not commenced any other action or proceeding involving the same issues in any court,
including the Supreme Court, the Court of Appeals, or any other Tribunal or agency. Where
verification-certification was placed under oath and was conveniently notarized by the wife of
the counsel of respondent in both cases at Branch 159 of the RTC in Pasig and at the NBI, an
agency within the ambis (sic) and purview of the circulus (sic) of the Supreme Court prohibiting
forum shopping.

F. That Jose Antonio Bernas, the counsel on record of the respondents in Civil Case No. 65646 is
the same lawyer who instigated a criminal complaint at the NBI for forgery and respondents
themselves conspired and confabulated with each other in facilitating and insuring the open,
blatant and deliberate violation of Art. 172 of the Revised Penal Code which states:

Art. 172. Falsification by private individual and use of falsified documents.- The penalty of
prison correctional in its medium and maximum periods and a fine of not more than p 5,000
pesos shall be imposed upon:

1. Any private individual who shall commit any of the falsifications enumerated in the next
preceding article in any public or official document or letter of exchange (sic) or any other kind
of commercial documents; and
2. Any person who, to the damage of the third party, or with the intent to cause such damage,
shall in any private document commit any of the acts of falsification enumerated in the next
preceding article.

Any person who shall knowingly introduce in evidence in any judicial proceeding or the damage
of another or who, with the intent to cause such damage , shall use any of the false documents
embraced in the next preceding article, or any of the foregoing subdivisions of this article, shall
be punished by the penalty next lower in degree.

G. That Atty. Jose Antonio Bernas should be disbarred for having instigated abetted and
facilitated the perversion and subversion of truth in the said verification and certification of non-
forum shopping.Contrary to Canon 1, Rule 1.01, 1.02, Canon 3, 3.01, Canon 10 of the code of
Professional responsibility for Lawyers, the pertinent provisions of which are herein below
quoted and a copy of said code is hereto attached and marked as Annex E;

CANON 1. A. LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF

THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES.

Rule 1.01 - A lawyer shall not engage in lawful, dishonest, immoral or deceitful (sic) conduct.

Rule 1.02 - A lawyer shall not counsel or abet activities simed (sic) at defiance of the law or at
lessening confidence in the legal system.

CANON 3 A. LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY
TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION OF (sic)
STATEMENT OF FACTS.

Rule 3.01 - A lawyer shall not use or permit the use of any false, fraudulent, misleading,
deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualified (sic) or
legal services.

CANON 10. A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE
COURT.

In his Comment, [2] respondents Jose Antonio Bernas avers that he has not committed forum
shopping because the criminal action is not an action that involves the same issue as those in the
civil action and both suits can exist without constituting forum shopping so long as the civil
aspect has not yet been prosecuted in the criminal case. He emphasized that forum shopping only
exist when identical reliefs are issued by the same parties in multiple fora.
In his Supplemental Comment,[3] respondent further contends that neither he or his client
Pascual has commenced any criminal action. Pascual merely requested the NBI to assist in the
investigation or prosecution, and left it to the NBI to determine whether the filing of an
endorsement to the prosecutor, who would determine probable caused, would be appropriate. It
was only upon request of the NBI the he assisted Ramon Pascual in drafting an affidavit-
complaint for falsification of public documents against complainant. Likewise, respondent by
counsel reiterates that the letter transmitted to the NBI cannot constitute an action or proceeding
because the NBIs functions are merely investigatory and informational in nature. NBI has no
prosecutorial functions or quasi-judicial power and is incapable of granting relief or remedy. The
NBI cannot be an agency contemplated by the circular.
The core issue to be resolved here is whether respondent Atty. Bernas transgressed Circular
No. 28-91, Revised Circular No. 28-91, and administrative Circular No. 04-94 on forum
shopping.
After a careful scrutiny of the records, we find the administrative complaint bereft of merit
and should be dismissed.
There is forum-shopping whenever, as a result of an adverse opinion in one forum, a party
seeks a favorable opinion (other than by appeal or certiorari) in another. Therefore, a party to a
case resort to forum shopping because by filling another petition involving the same essential
facts and circumstances, xxx, respondents approached two different for a in order to increase
their chances of obtaining a favorable decision or action, [4] In this case, there is no forum
shopping to speak of Atty. Bernas, as counsel of Mr. Pascual, Jr., merely requested the assistance
of the NBI to investigate the the alleged fraud and forgery committed by Mr. Jesus
Cabarrus.[5] The filing of the civil case for conveyance and damages before the Regional Trial
Court of Pasig City does not preclude respondent to institute a criminal action. The rule allows
the filing of a civil case independently with the criminal case without violating the circulars on
forum shopping. It is scarcely necessary to add that Circular No. 28-91 must be so interpreted
and applied as to achieve the purposes projected by the Supreme Court when it promulgated that
Circular No. 28-91 was designed to serve as an instrument to promote and facilitate the orderly
administration of justice and should not be interpreted with such absolute literalness as to subvert
and legitimate objective or the goal of all rules of procedure-which is to achieve substantial
justice as expeditiously as possible.[6]
Adjunct to this, Act No. 157 [7], specifically section 1 hereof provides, viz:

Section 1. There is hereby created a Bureau of Investigation under the Department of Justice
which shall have the following functions:

(a) To undertake investigation of crimes and other offenses against the laws of the Philippines,
upon its initiative and as public interest may require;

(b) To render assistance, whenever properly requested in the investigation or detection of crimes
and other offenses;

(c) To act as a national clearing house of criminal and other infromations for the benefit and use
of the prosecuting and law-enforcement entities of the Philippines, identification records
of all person without criminal convictions, records of identifying marks, characteristics,
and ownership or possession of all firearms as well as bullets fired therefrom;

(d) To give technical aid to all prosecuting and law-enforcement officers and entities of the
Government as well as the courts that may request its services;
(e) To extend its services, whenever properly requested in the investigation of cases of
administrative or civil nature in which the Government is interested;

(f) To undertake the instruction and training of representative number of city and municipal
peace officers at the request of their respective superiors along effective methods of
crime investigation and detection in order to insure greater efficiency in the discharge of
their duties;

(g) To establish and maintain an up-to-date scientific crime laboratory and to conduct researches
inn furtherance of scientific knowledge in criminal investigation;

(h) To perform such other related function as the secretary of Justice may assign from time to
time.

Explicitly, the function of the National Bureau of Investigations are merely investigatory
and informational in nature. It has no judicial or quasi-judicial powers and is incapable of
granting any relief to a party. It cannot even determine probable cause. It is an investigative
agency whose findings are merely recommendatory. It undertakes investigation of crimes upon
its own initiative and as public welfare may require. It renders assistance when requested in the
investigation or detection of crimes which precisely what Atty. Bernas sought in order to
prosecute those person responsible for defrauding his client.
The courts, tribunal and agencies referred to under Circular No. 28-91, revised Circular No.
28-91 and Administrative Circular No. 04-94 are those vested with judicial powers or quasi-
judicial powers and those who not only hear and determine controversies between adverse
parties, but to make binding orders or judgments. As succinctly put it by R.A. 157, the NBI is not
performing judicial or quasi-judicial functions. The NBI cannot therefore be among those forums
contemplated by the Circular that can entertain an action or proceeding, or even grant any relief,
declaratory or otherwise.
WHEREFORE, premises considered, the instant complaint is hereby DISMISSED.
SO ORDERED.
Regalado (Chairman), and Puno, JJ., concur.
Mendoza, J., on leave.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION
G.R. No. 148579 February 5, 2007

GMA NETWORK, INC., Petitioner,

vs.
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, Respondent.

DECISION

CORONA, J.:

Subject of this petition for review under Rule 45 of the Rules of Court is the June 18, 2001
decision1 of the Court of Appeals (CA) affirming the January 7, 2000 order2 of respondent
Movie and Television Review and Classification Board (MTRCB) which read:

In view thereof, the BOARD, by the undersigned, hereby imposes the administrative penalty of
SUSPENSION FROM AIRING/BROADCASTING any program on EMC Channel 27 for a
period of seven (7) days which period shall commence immediately upon receipt of this Order.
Your failure to comply with this ORDER shall be construed by the BOARD as defiance on your
part of a lawful order of the BOARD.

The facts follow.

Petitioner GMA Network, Inc. operates and manages the UHF television station, EMC Channel
27. On January 7, 2000, respondent MTRCB issued an order of suspension against petitioner for
airing "Muro Ami: The Making" without first securing a permit from it as provided in Section 7
of PD 1986.3

The penalty of suspension was based on Memorandum Circular 98-17 dated December 15,
19984 which provided for the penalties for exhibiting a program without a valid permit from the
MTRCB.

Petitioner moved for reconsideration of the suspension order and, at the same time, informed
MTRCB that Channel 27 had complied with the suspension order by going off the air since
midnight of January 11, 2000. It also filed a letter-protest which was merely "noted" by the
MTRCB thereby, in effect, denying both the motion for reconsideration and letter-protest.

Petitioner then filed with the CA a petition for certiorari which was dismissed in the now assailed
June 18, 2001 decision. The January 7, 2000 suspension order issued by MTRCB was
affirmed in toto.

Hence, this recourse.

The pivotal issues for our resolution are:

(1) whether the MTRCB has the power or authority to review the show "Muro Ami: The
Making" prior to its broadcast by television and
 (2) whether Memorandum Circular No. 98-17 was enforceable and binding on petitioner.

First, Section 3 of PD 19865 empowers the MTRCB to screen, review and examine all motion
pictures, television programs including publicity materials. This power of prior review is
highlighted in its Rules and Regulations, particularly Section 7 thereof, which reads:

SECTION 7. REQUIREMENT OF PRIOR REVIEW. -- No motion picture, television program

or related publicity material shall be imported, exported, produced, copied, distributed, sold,
leased, exhibited or broadcasted by television without prior permit issued by the BOARD after
review of the motion picture, television program or publicity material.

The only exemptions from the MTRCB’s power of review are those expressly mentioned in
Section 7,6 such as (1) television programs imprinted or exhibited by the Philippine Government
and/or departments and agencies, and (2) newsreels.

According to the CA, the subject program was a publicity for the movie, "Muro Ami." In
adopting this finding, we hold that "Muro Ami: The Making," did not fall under any of the
exemptions and was therefore within the power of review of MTRCB.

On the other hand, petitioner claims that "Muro Ami: The Making" was a public
affairs program.7 Even if that were so, our resolution of this issue would not change. This Court
has already ruled that a public affairs program -- described as a variety of news treatment; a cross
between pure television news and news-related commentaries, analysis and/or exchange of
opinions -- is within the MTRCB’s power of review.8 Clearly, "Muro Ami: The Making" (which
petitioner claims to be a public affairs program) was well within the purview of MTRCB’s
power of prior review.1awphi1.net

However, while MTRCB had jurisdiction over the subject program, Memorandum Circular 98-
17, which was the basis of the suspension order, was not binding on petitioner. The
Administrative Code of 1987, particularly Section 3 thereof, expressly requires each agency to
file with the Office of the National Administrative Register (ONAR) of the University of the
Philippines Law Center three certified copies of every rule adopted by it. Administrative
issuances which are not published or filed with the ONAR are ineffective and may not be
enforced.9

Memorandum Circular No. 98-17, which provides for the penalties for the first, second and third
offenses for exhibiting programs without valid permit to exhibit, has not been registered with the
ONAR as of January 27, 2000.10 Hence, the same is yet to be effective.11 It is thus unenforceable
since it has not been filed in the ONAR.12Consequently, petitioner was not bound by said
circular and should not have been meted the sanction provided thereunder.

WHEREFORE, the instant petition is PARTIALLY GRANTED. The decision of the Court of
Appeals dated June 18, 2001, insofar as it affirmed the public respondent Movie and Television
Review and Classification Board’s jurisdiction over "Muro Ami: The Making," is
hereby AFFIRMED with the MODIFICATION that the suspension order issued against
petitioner GMA Network, Inc. pursuant to Memorandum Circular No. 98-17 is hereby declared
null and void.

No pronouncement as to costs.

SO ORDERED.

RENATO C. CORONA
Associate Justice

WE CONCUR:

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-63915 April 24, 1985

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF

ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.
[MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office,
and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in
Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be
valid and enforceable must be published in the Official Gazette or otherwise effectively
promulgated, petitioners seek a writ of mandamus to compel respondent public officials to
publish, and/or cause the publication in the Official Gazette of various presidential decrees,
letters of instructions, general orders, proclamations, executive orders, letter of implementation
and administrative orders.

Specifically, the publication of the following presidential issuances is sought:

 a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200,
234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368,
404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566,
573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923,
935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246,
1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-
1840, 1842-1847.

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150,
153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213,
215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-
283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346,
349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445,
473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610,
611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882,
939-940, 964,997,1149-1178,1180-1278.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526,
1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-
1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723,
1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-
1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829,
1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858,
1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963,
1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-
2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-
507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563,
567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707,
712-786, 788-852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-
81, 92, 94, 95, 107, 120, 122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The
view is submitted that in the absence of any showing that petitioners are personally and directly
affected or prejudiced by the alleged non-publication of the presidential issuances in
question 2 said petitioners are without the requisite legal personality to institute this mandamus
proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of
the Rules of Court, which we quote:
 SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or
person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use a rd enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition in the
proper court alleging the facts with certainty and praying that judgment be
rendered commanding the defendant, immediately or at some other specified time,
to do the act required to be done to Protect the rights of the petitioner, and to pay
the damages sustained by the petitioner by reason of the wrongful acts of the
defendant.

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public
right and its object is to compel the performance of a public duty, they need not show any
specific interest for their petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs.
Governor General, 3 this Court held that while the general rule is that "a writ of mandamus
would be granted to a private individual only in those cases where he has some private or
particular interest to be subserved, or some particular right to be protected, independent of that
which he holds with the public at large," and "it is for the public officers exclusively to apply for
the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469],"
nevertheless, "when the question is one of public right and the object of the mandamus is to
procure the enforcement of a public duty, the people are regarded as the real party in interest and
the relator at whose instigation the proceedings are instituted need not show that he has any legal
or special interest in the result, it being sufficient to show that he is a citizen and as such
interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a
proper party to the mandamus proceedings brought to compel the Governor General to call a
special election for the position of municipal president in the town of Silay, Negros Occidental.
Speaking for this Court, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the
proposition that the relator is a proper party to proceedings of this character when
a public right is sought to be enforced. If the general rule in America were
otherwise, we think that it would not be applicable to the case at bar for the reason
'that it is always dangerous to apply a general rule to a particular case without
keeping in mind the reason for the rule, because, if under the particular
circumstances the reason for the rule does not exist, the rule itself is not
applicable and reliance upon the rule may well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by
counsel for the respondent. The circumstances which surround this case are
different from those in the United States, inasmuch as if the relator is not a proper
party to these proceedings no other person could be, as we have seen that it is not
 the duty of the law officer of the Government to appear and represent the people
in cases of this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be
enforced by petitioners herein is a public right recognized by no less than the fundamental law of
the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult
to conceive of any other person to initiate the same, considering that the Solicitor General, the
government officer generally empowered to represent the people, has entered his appearance for
respondents in this case.

Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own
effectivity dates. It is thus submitted that since the presidential issuances in question contain
special provisions as to the date they are to take effect, publication in the Official Gazette is not
indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article.
In a long line of decisions,4 this Court has ruled that publication in the Official Gazette is
necessary in those cases where the legislation itself does not provide for its effectivity date-for
then the date of publication is material for determining its date of effectivity, which is the
fifteenth day following its publication-but not when the law itself provides for the date when it
goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of
laws with the fact of publication. Considered in the light of other statutes applicable to the issue
at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of
publication in the Official Gazette, even if the law itself provides for the date of its effectivity.
Thus, Section 1 of Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important
legisiative acts and resolutions of a public nature of the, Congress of the
Philippines; [2] all executive and administrative orders and proclamations, except
such as have no general applicability; [3] decisions or abstracts of decisions of the
Supreme Court and the Court of Appeals as may be deemed by said courts of
sufficient importance to be so published; [4] such documents or classes of
documents as may be required so to be published by law; and [5] such documents
or classes of documents as the President of the Philippines shall determine from
time to time to have general applicability and legal effect, or which he may
authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of
the various laws which are to regulate their actions and conduct as citizens. Without such notice
and publication, there would be no basis for the application of the maxim "ignorantia legis non
excusat." It would be the height of injustice to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones,
ready access to the legislative records—no such publicity accompanies the law-making process
of the President. Thus, without publication, the people have no means of knowing what
presidential decrees have actually been promulgated, much less a definite way of informing
themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain
ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los reglamentos, Reales
decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por
el Gobierno en uso de su potestad.5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in
the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an
imperative duty. That duty must be enforced if the Constitutional right of the people to be
informed on matters of public concern is to be given substance and reality. The law itself makes
a list of what should be published in the Official Gazette. Such listing, to our mind, leaves
respondents with no discretion whatsoever as to what must be included or excluded from such
publication.

The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties
for their violation or otherwise impose a burden or. the people, such as tax and revenue
measures, fall within this category. Other presidential issuances which apply only to particular
persons or class of persons such as administrative and executive orders need not be published on
the assumption that they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of
general applicability" is a requirement of due process. It is a rule of law that before a person may
be bound by law, he must first be officially and specifically informed of its contents. As Justice
Claudio Teehankee said in Peralta vs. COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form
part of the law of the land, the requirement of due process and the Rule of Law
demand that the Official Gazette as the official government repository promulgate
and publish the texts of all such decrees, orders and instructions so that the people
may know where to obtain their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not
been published, shall have no force and effect. Some members of the Court, quite apprehensive
about the possible unsettling effect this decision might have on acts done in reliance of the
validity of those presidential decrees which were published only during the pendency of this
petition, have put the question as to whether the Court's declaration of invalidity apply to P.D.s
which had been enforced or implemented prior to their publication. The answer is all too
familiar. In similar situations in the past this Court had taken the pragmatic and realistic course
set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit:

The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative,
conferring no rights and imposing no duties, and hence affording no basis for the
challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L.
Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad
statements as to the effect of a determination of unconstitutionality must be taken
with qualifications. The actual existence of a statute, prior to such a
determination, is an operative fact and may have consequences which cannot
justly be ignored. The past cannot always be erased by a new judicial declaration.
The effect of the subsequent ruling as to invalidity may have to be considered in
various aspects-with respect to particular conduct, private and official. Questions
of rights claimed to have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of public policy in the light
of the nature both of the statute and of its previous application, demand
examination. These questions are among the most difficult of those which have
engaged the attention of courts, state and federal and it is manifest from numerous
decisions that an all-inclusive statement of a principle of absolute retroactive
invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a
party under the Moratorium Law, albeit said right had accrued in his favor before said law was
declared unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in

the Official Gazette is "an operative fact which may have consequences which cannot be justly
ignored. The past cannot always be erased by a new judicial declaration ... that an all-inclusive
statement of a principle of absolute retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees
Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so
published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since no
copies thereof are available. But whatever their subject matter may be, it is undisputed that none
of these unpublished PDs has ever been implemented or enforced by the government. In Pesigan
vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to
apprise the public of the contents of [penal] regulations and make the said penalties binding on
the persons affected thereby. " The cogency of this holding is apparently recognized by
respondent officials considering the manifestation in their comment that "the government, as a
matter of policy, refrains from prosecuting violations of criminal laws until the same shall have
been published in the Official Gazette or in some other publication, even though some criminal
laws provide that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so published,
they shall have no binding force and effect.

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

Concepcion, Jr., J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-6791 March 29, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
QUE PO LAY, defendant-appellant.

Prudencio de Guzman for appellant.

First Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Lauro G. Marquez for
appellee.

MONTEMAYOR, J.:

Que Po Lay is appealing from the decision of the Court of First Instance of Manila, finding him
guilty of violating Central Bank Circular No. 20 in connection with section 34 of Republic Act
No. 265, and sentencing him to suffer six months imprisonment, to pay a fine of P1,000 with
subsidiary imprisonment in case of insolvency, and to pay the costs.

The charge was that the appellant who was in possession of foreign exchange consisting of U.S.
dollars, U.S. checks and U.S. money orders amounting to about $7,000 failed to sell the same to
the Central Bank through its agents within one day following the receipt of such foreign
exchange as required by Circular No. 20. the appeal is based on the claim that said circular No.
20 was not published in the Official Gazette prior to the act or omission imputed to the appellant,
and that consequently, said circular had no force and effect. It is contended that Commonwealth
Act. No., 638 and Act 2930 both require said circular to be published in the Official Gazette, it
being an order or notice of general applicability. The Solicitor General answering this contention
says that Commonwealth Act. No. 638 and 2930 do not require the publication in the Official
Gazette of said circular issued for the implementation of a law in order to have force and effect.

We agree with the Solicitor General that the laws in question do not require the publication of
the circulars, regulations and notices therein mentioned in order to become binding and effective.
All that said two laws provide is that laws, resolutions, decisions of the Supreme Court and Court
of Appeals, notices and documents required by law to be of no force and effect. In other words,
said two Acts merely enumerate and make a list of what should be published in the Official
Gazette, presumably, for the guidance of the different branches of the Government issuing same,
and of the Bureau of Printing.

However, section 11 of the Revised Administrative Code provides that statutes passed by
Congress shall, in the absence of special provision, take effect at the beginning of the fifteenth
day after the completion of the publication of the statute in the Official Gazette. Article 2 of the
new Civil Code (Republic Act No. 386) equally provides that laws shall take effect after fifteen
days following the completion of their publication in the Official Gazette, unless it is otherwise
provided. It is true that Circular No. 20 of the Central Bank is not a statute or law but being
issued for the implementation of the law authorizing its issuance, it has the force and effect of
law according to settled jurisprudence. (See U.S. vs. Tupasi Molina, 29 Phil., 119 and authorities
cited therein.) Moreover, as a rule, circulars and regulations especially like the Circular No. 20 of
the Central Bank in question which prescribes a penalty for its violation should be published
before becoming effective, this, on the general principle and theory that before the public is
bound by its contents, especially its penal provisions, a law, regulation or circular must first be
published and the people officially and specifically informed of said contents and its penalties.

Our Old Civil code, ( Spanish Civil Code of 1889) has a similar provision about the effectivity of
laws, (Article 1 thereof), namely, that laws shall be binding twenty days after their promulgation,
and that their promulgation shall be understood as made on the day of the termination of the
publication of the laws in the Gazette. Manresa, commenting on this article is of the opinion that
the word "laws" include regulations and circulars issued in accordance with the same. He says:

El Tribunal Supremo, ha interpretado el articulo 1. del codigo Civil en Sentencia de 22 de

Junio de 1910, en el sentido de que bajo la denominacion generica de leyes, se
comprenden tambien los Reglamentos, Reales decretos, Instrucciones, Circulares y
Reales ordenes dictadas de conformidad con las mismas por el Gobierno en uso de su
potestad. Tambien el poder ejecutivo lo ha venido entendiendo asi, como lo prueba el
hecho de que muchas de sus disposiciones contienen la advertencia de que empiezan a
regir el mismo dia de su publicacion en la Gaceta, advertencia que seria perfectamente
inutil si no fuera de aplicacion al caso el articulo 1.o del Codigo Civil. (Manresa, Codigo
Civil Español, Vol. I. p. 52).

In the present case, although circular No. 20 of the Central Bank was issued in the year 1949, it
was not published until November 1951, that is, about 3 months after appellant's conviction of its
violation. It is clear that said circular, particularly its penal provision, did not have any legal
effect and bound no one until its publication in the Official Gazzette or after November 1951. In
other words, appellant could not be held liable for its violation, for it was not binding at the time
he was found to have failed to sell the foreign exchange in his possession thereof.

But the Solicitor General also contends that this question of non-publication of the Circular is
being raised for the first time on appeal in this Court, which cannot be done by appellant.
Ordinarily, one may raise on appeal any question of law or fact that has been raised in the court
below and which is within the issues made by the parties in their pleadings. (Section 19, Rule 48
of the Rules of Court). But the question of non-publication is fundamental and decisive. If as a
matter of fact Circular No. 20 had not been published as required by law before its violation,
then in the eyes of the law there was no such circular to be violated and consequently appellant
committed no violation of the circular or committed any offense, and the trial court may be said
to have had no jurisdiction. This question may be raised at any stage of the proceeding whether
or not raised in the court below.

In view of the foregoing, we reverse the decision appealed from and acquit the appellant, with
costs de oficio.

Paras, C.J., Bengzon, Padilla, Reyes, Bautista Angelo, Labrador, Concepcion and Diokno,
JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-32166 October 18, 1977

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
HON. MAXIMO A. MACEREN CFI, Sta. Cruz, Laguna, JOSE BUENAVENTURA,
GODOFREDO REYES, BENJAMIN REYES, NAZARIO AQUINO and CARLO DEL
ROSARIO, accused-appellees.

Office of the Solicitor General for appellant.

Rustics F. de los Reyes, Jr. for appellees.

AQUINO, J.:têñ.£îhqwâ£
This is a case involving the validity of a 1967 regulation, penalizing electro fishing in fresh water
fisheries, promulgated by the Secretary of Agriculture and Natural Resources and the
Commissioner of Fisheries under the old Fisheries Law and the law creating the Fisheries
Commission.

On March 7, 1969 Jose Buenaventura, Godofredo Reyes, Benjamin Reyes, Nazario Aquino and
Carlito del Rosario were charged by a Constabulary investigator in the municipal court of Sta.
Cruz, Laguna with having violated Fisheries Administrative Order No. 84-1.

It was alleged in the complaint that the five accused in the morning of March 1, 1969 resorted to
electro fishing in the waters of Barrio San Pablo Norte, Sta. Cruz by "using their own motor
banca, equipped with motor; with a generator colored green with attached dynamo colored gray
or somewhat white; and electrocuting device locally known as sensored with a somewhat
webbed copper wire on the tip or other end of a bamboo pole with electric wire attachment
which was attached to the dynamo direct and with the use of these devices or equipments catches
fish thru electric current, which destroy any aquatic animals within its cuffed reach, to the
detriment and prejudice of the populace" (Criminal Case No. 5429).

Upon motion of the accused, the municipal court quashed the complaint. The prosecution
appealed. The Court of First Instance of Laguna affirmed the order of dismissal (Civil Case No.
SC-36). The case is now before this Court on appeal by the prosecution under Republic Act No.
5440.

The lower court held that electro fishing cannot be penalize because electric current is not an
obnoxious or poisonous substance as contemplated in section I I of the Fisheries Law and that it
is not a substance at all but a form of energy conducted or transmitted by substances. The lower
court further held that, since the law does not clearly prohibit electro fishing, the executive and
judicial departments cannot consider it unlawful.

As legal background, it should be stated that section 11 of the Fisheries Law prohibits "the use of
any obnoxious or poisonous substance" in fishing.

Section 76 of the same law punishes any person who uses an obnoxious or poisonous substance
in fishing with a fine of not more than five hundred pesos nor more than five thousand, and by
imprisonment for not less than six months nor more than five years.

It is noteworthy that the Fisheries Law does not expressly punish .electro fishing."
Notwithstanding the silence of the law, the Secretary of Agriculture and Natural Resources, upon
the recommendation of the Commissioner of Fisheries, promulgated Fisheries Administrative
Order No. 84 (62 O.G. 1224), prohibiting electro fishing in all Philippine waters. The order is
quoted below: ñé+.£ªwph!1

SUBJECT: PROHIBITING ELECTRO FISHING IN ALL

WATERS ñé+.£ªwph!1

OF THE PHILIPPINES.
Pursuant to Section 4 of Act No. 4003, as amended, and Section 4 of R.A. No. 3512, the
following rules and regulations regarding the prohibition of electro fishing in all waters of the
Philippines are promulgated for the information and guidance of all concerned.ñé+.£ªwph!1

SECTION 1. — Definition. — Words and terms used in this Order 11 construed

as follows:

(a) Philippine waters or territorial waters of the Philippines' includes all waters of
the Philippine Archipelago, as defined in the t between the United States and
Spain, dated respectively the tenth of December, eighteen hundred ninety eight
and the seventh of November, nineteen hundred. For the purpose of this order,
rivers, lakes and other bodies of fresh waters are included.

(b) Electro Fishing. — Electro fishing is the catching of fish with the use of
electric current. The equipment used are of many electrical devices which may be
battery or generator-operated and from and available source of electric current.

(c) 'Persons' includes firm, corporation, association, agent or employee.

(d) 'Fish' includes other aquatic products.

SEC. 2. — Prohibition. — It shall be unlawful for any person to engage in electro

fishing or to catch fish by the use of electric current in any portion of the
Philippine waters except for research, educational and scientific purposes which
must be covered by a permit issued by the Secretary of Agriculture and Natural
Resources which shall be carried at all times.

SEC. 3. — Penalty. — Any violation of the provisions of this Administrative

Order shall subject the offender to a fine of not exceeding five hundred pesos
(P500.00) or imprisonment of not extending six (6) months or both at the
discretion of the Court.

SEC. 4. — Repealing Provisions. — All administrative orders or parts thereof

inconsistent with the provisions of this Administrative Order are hereby revoked.

SEC. 5. — Effectivity. — This Administrative Order shall take effect six (60) days
after its publication in the Office Gazette.

On June 28, 1967 the Secretary of Agriculture and Natural Resources, upon the recommendation
of the Fisheries Commission, issued Fisheries Administrative Order No. 84-1, amending section
2 of Administrative Order No. 84, by restricting the ban against electro fishing to fresh water
fisheries (63 O.G. 9963).

Thus, the phrase "in any portion of the Philippine waters" found in section 2, was changed by the
amendatory order to read as follows: "in fresh water fisheries in the Philippines, such as rivers,
lakes, swamps, dams, irrigation canals and other bodies of fresh water."
The Court of First Instance and the prosecution (p. 11 of brief) assumed that electro fishing is
punishable under section 83 of the Fisheries Law (not under section 76 thereof), which provides
that any other violation of that law "or of any rules and regulations promulgated thereunder shall
subject the offender to a fine of not more than two hundred pesos (P200), or in t for not more
than six months, or both, in the discretion of the court."

That assumption is incorrect because 3 of the aforequoted Administrative Order No. 84 imposes
a fm of not exceeding P500 on a person engaged in electro fishing, which amount the 83. It
seems that the Department of Fisheries prescribed their own penalty for swift fishing which
penalty is less than the severe penalty imposed in section 76 and which is not Identified to the at
penalty imposed in section 83.

Had Administrative Order No. 84 adopted the fighter penalty prescribed in on 83, then the crime
of electro fishing would be within the exclusive original jurisdiction of the inferior court (Sec. 44
[f], Judiciary Law; People vs. Ragasi, L-28663, September 22,

We have discussed this pre point, not raised in the briefs, because it is obvious that the crime of
electro fishing which is punishable with a sum up to P500, falls within the concurrent original
jurisdiction of the inferior courts and the Court of First instance (People vs. Nazareno, L-40037,
April 30, 1976, 70 SCRA 531 and the cases cited therein).

And since the instant case was filed in the municipal court of Sta. Cruz, Laguna, a provincial
capital, the order of d rendered by that municipal court was directly appealable to the Court, not
to the Court of First Instance of Laguna (Sec. 45 and last par. of section 87 of the Judiciary Law;
Esperat vs. Avila, L-25992, June 30, 1967, 20 SCRA 596).

It results that the Court of First Instance of Laguna had no appellate jurisdiction over the case. Its
order affirming the municipal court's order of dismissal is void for lack of motion. This appeal
shall be treated as a direct appeal from the municipal court to this Court. (See People vs. Del
Rosario, 97 Phil. 67).

In this appeal, the prosecution argues that Administrative Orders Nos. 84 and 84-1 were not
issued under section 11 of the Fisheries Law which, as indicated above, punishes fishing by
means of an obnoxious or poisonous substance. This contention is not well-taken because, as
already stated, the Penal provision of Administrative Order No. 84 implies that electro fishing is
penalized as a form of fishing by means of an obnoxious or poisonous substance under section
11.

The prosecution cites as the legal sanctions for the prohibition against electro fishing in fresh
water fisheries (1) the rule-making power of the Department Secretary under section 4 of the
Fisheries Law; (2) the function of the Commissioner of Fisheries to enforce the provisions of the
Fisheries Law and the regulations Promulgated thereunder and to execute the rules and
regulations consistent with the purpose for the creation of the Fisheries Commission and for the
development of fisheries (Sec. 4[c] and [h] Republic Act No. 3512; (3) the declared national
policy to encourage, Promote and conserve our fishing resources (Sec. 1, Republic Act No.
3512), and (4) section 83 of the Fisheries Law which provides that "any other violation of" the
Fisheries Law or of any rules and regulations promulgated thereunder "shall subject the offender
to a fine of not more than two hundred pesos, or imprisonment for not more than six months, or
both, in the discretion of the court."

As already pointed out above, the prosecution's reference to section 83 is out of place because
the penalty for electro fishing under Administrative order No. 84 is not the same as the penalty
fixed in section 83.

We are of the opinion that the Secretary of Agriculture and Natural Resources and the
Commissioner of Fisheries exceeded their authority in issuing Fisheries Administrative Orders
Nos. 84 and 84-1 and that those orders are not warranted under the Fisheries Commission,
Republic Act No. 3512.

The reason is that the Fisheries Law does not expressly prohibit electro fishing. As electro
fishing is not banned under that law, the Secretary of Agriculture and Natural Resources and the
Commissioner of Fisheries are powerless to penalize it. In other words, Administrative Orders
Nos. 84 and 84-1, in penalizing electro fishing, are devoid of any legal basis.

Had the lawmaking body intended to punish electro fishing, a penal provision to that effect could
have been easily embodied in the old Fisheries Law.

That law punishes (1) the use of obnoxious or poisonous substance, or explosive in fishing; (2)
unlawful fishing in deepsea fisheries; (3) unlawful taking of marine molusca, (4) illegal taking of
sponges; (5) failure of licensed fishermen to report the kind and quantity of fish caught, and (6)
other violations.

Nowhere in that law is electro fishing specifically punished. Administrative Order No. 84, in
punishing electro fishing, does not contemplate that such an offense fails within the category of
"other violations" because, as already shown, the penalty for electro fishing is the penalty next
lower to the penalty for fishing with the use of obnoxious or poisonous substances, fixed in
section 76, and is not the same as the penalty for "other violations" of the law and regulations
fixed in section 83 of the Fisheries Law.

The lawmaking body cannot delegate to an executive official the power to declare what acts
should constitute an offense. It can authorize the issuance of regulations and the imposition of
the penalty provided for in the law itself. (People vs. Exconde 101 Phil. 11 25, citing 11 Am. Jur.
965 on p. 11 32).

Originally, Administrative Order No. 84 punished electro fishing in all waters. Later, the ban
against electro fishing was confined to fresh water fisheries. The amendment created the
impression that electro fishing is not condemnable per se. It could be tolerated in marine waters.
That circumstances strengthens the view that the old law does not eschew all forms of electro
fishing.

However, at present, there is no more doubt that electro fishing is punishable under the Fisheries
Law and that it cannot be penalized merely by executive revolution because Presidential Decree
No. 704, which is a revision and consolidation of all laws and decrees affecting fishing and
fisheries and which was promulgated on May 16, 1975 (71 O.G. 4269), expressly punishes
electro fishing in fresh water and salt water areas.

That decree provides: ñé+.£ªwph!1

SEC. 33. — Illegal fishing, dealing in illegally caught fish or fishery/aquatic

products. — It shall he unlawful for any person to catch, take or gather or cause to
be caught, taken or gathered fish or fishery/aquatic products in Philippine waters
with the use of explosives, obnoxious or poisonous substance, or by the use of
electricity as defined in paragraphs (1), (m) and (d), respectively, of Section 3
hereof: ...

The decree Act No. 4003, as amended, Republic Acts Nos. 428, 3048, 3512 and 3586,
Presidential Decrees Nos. 43, 534 and 553, and all , Acts, Executive Orders, rules and
regulations or parts thereof inconsistent with it (Sec. 49, P. D. No. 704).

The inclusion in that decree of provisions defining and penalizing electro fishing is a clear
recognition of the deficiency or silence on that point of the old Fisheries Law. It is an admission
that a mere executive regulation is not legally adequate to penalize electro fishing.

Note that the definition of electro fishing, which is found in section 1 (c) of Fisheries
Administrative Order No. 84 and which is not provided for the old Fisheries Law, is now found
in section 3(d) of the decree. Note further that the decree penalty electro fishing by
"imprisonment from two (2) to four (4) years", a punishment which is more severe than the
penalty of a time of not excluding P500 or imprisonment of not more than six months or both
fixed in section 3 of Fisheries Administrative Order No. 84.

An examination of the rule-making power of executive officials and administrative agencies and,
in particular, of the Secretary of Agriculture and Natural Resources (now Secretary of Natural
Resources) under the Fisheries Law sustains the view that he ex his authority in penalizing
electro fishing by means of an administrative order.

Administrative agent are clothed with rule-making powers because the lawmaking body finds it
impracticable, if not impossible, to anticipate and provide for the multifarious and complex
situations that may be encountered in enforcing the law. All that is required is that the regulation
should be germane to the defects and purposes of the law and that it should conform to the
standards that the law prescribes (People vs. Exconde 101 Phil. 1125; Director of Forestry vs.
Muñ;oz, L-24796, June 28, 1968, 23 SCRA 1183, 1198; Geukeko vs. Araneta, 102 Phil. 706,
712).

The lawmaking body cannot possibly provide for all the details in the enforcement of a particular
statute (U.S. vs. Tupasi Molina, 29 Phil. 119, 125, citing U.S. vs. Grimaud 220 U.S. 506;
Interprovincial Autobus Co., Inc. vs. Coll. of Internal Revenue, 98 Phil. 290, 295-6).
The grant of the rule-making power to administrative agencies is a relaxation of the principle of
separation of powers and is an exception to the nondeleption of legislative, powers.
Administrative regulations or "subordinate legislation calculated to promote the public interest
are necessary because of "the growing complexity of modem life, the multiplication of the
subjects of governmental regulations, and the increased difficulty of administering the law"
Calalang vs. Williams, 70 Phil. 726; People vs. Rosenthal and Osmeñ;a, 68 Phil. 328).

Administrative regulations adopted under legislative authority by a particular department must

be in harmony with the provisions of the law, and should be for the sole purpose of carrying into
effect its general provisions. By such regulations, of course, the law itself cannot be extended.
(U.S. vs. Tupasi Molina, supra). An administrative agency cannot amend an act of Congress
(Santos vs. Estenzo, 109 Phil. 419, 422; Teoxon vs. Members of the d of Administrators, L-
25619, June 30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December
29, 1971, 42 SCRA 660; Deluao vs. Casteel, L-21906, August 29, 1969, 29 SCRA 350).

The rule-making power must be confined to details for regulating the mode or proceeding to
carry into effect the law as it his been enacted. The power cannot be extended to amending or
expanding the statutory requirements or to embrace matters not covered by the statute. Rules that
subvert the statute cannot be sanctioned. (University of Santo Tomas vs. Board of Tax A 93 Phil.
376, 382, citing 12 C.J. 845-46. As to invalid regulations, see of Internal Revenue vs. Villaflor
69 Phil. 319, Wise & Co. vs. Meer, 78 Phil. 655, 676; Del March vs. Phil. Veterans
Administrative, L-27299, June 27, 1973, 51 SCRA 340, 349).

There is no question that the Secretary of Agriculture and Natural Resources has rule-making
powers. Section 4 of the Fisheries law provides that the Secretary "shall from time to time issue
instructions, orders, and regulations consistent" with that law, "as may be and proper to carry
into effect the provisions thereof." That power is now vested in the Secretary of Natural
Resources by on 7 of the Revised Fisheries law, Presidential December No. 704.

Section 4(h) of Republic Act No. 3512 empower the Co of Fisheries "to prepare and execute
upon the approval of the Secretary of Agriculture and Natural Resources, forms instructions,
rules and regulations consistent with the purpose" of that enactment "and for the development of
fisheries."

Section 79(B) of the Revised Administrative Code provides that "the Department Head shall
have the power to promulgate, whenever he may see fit do so, all rules, regulates, orders,
memorandums, and other instructions, not contrary to law, to regulate the proper working and
harmonious and efficient administration of each and all of the offices and dependencies of his
Department, and for the strict enforcement and proper execution of the laws relative to matters
under the jurisdiction of said Department; but none of said rules or orders shall prescribe
penalties for the violation thereof, except as expressly authorized by law."

Administrative regulations issued by a Department Head in conformity with law have the force
of law (Valerie vs. Secretary of culture and Natural Resources, 117 Phil. 729, 733; Antique
Sawmills, Inc. vs. Zayco, L- 20051, May 30, 1966, 17 SCRA 316). As he exercises the rule-
making power by delegation of the lawmaking body, it is a requisite that he should not transcend
the bound demarcated by the statute for the exercise of that power; otherwise, he would be
improperly exercising legislative power in his own right and not as a surrogate of the lawmaking
body.

Article 7 of the Civil Code embodies the basic principle that administrative or executive acts,
orders and regulations shall be valid only when they are not contrary to the laws or the
Constitution."

As noted by Justice Fernando, "except for constitutional officials who can trace their competence
to act to the fundamental law itself, a public office must be in the statute relied upon a grant of
power before he can exercise it." "department zeal may not be permitted to outrun the authority
conferred by statute." (Radio Communications of the Philippines, Inc. vs. Santiago, L-29236,
August 21, 1974, 58 SCRA 493, 496-8).

"Rules and regulations when promulgated in pursuance of the procedure or authority conferred
upon the administrative agency by law, partake of the nature of a statute, and compliance
therewith may be enforced by a penal sanction provided in the law. This is so because statutes
are usually couched in general terms, after expressing the policy, purposes, objectives, remedies
and sanctions intended by the legislature. The details and the manner of carrying out the law are
oftentimes left to the administrative agency entrusted with its enforcement. In this sense, it has
been said that rules and regulations are the product of a delegated power to create new or
additional legal provisions that have the effect of law." The rule or regulation should be within
the scope of the statutory authority granted by the legislature to the administrative agency.
(Davis, Administrative Law, p. 194, 197, cited in Victories Milling Co., Inc. vs. Social Security
Commission, 114 Phil. 555, 558).

In case of discrepancy between the basic law and a rule or regulation issued to implement said
law, the basic law prevails because said rule or regulation cannot go beyond the terms and
provisions of the basic law (People vs. Lim, 108 Phil. 1091).

This Court in its decision in the Lim case, supra, promulgated on July 26, 1960, called the
attention of technical men in the executive departments, who draft rules and regulations, to the
importance and necessity of closely following the legal provisions which they intend to
implement so as to avoid any possible misunderstanding or confusion.

The rule is that the violation of a regulation prescribed by an executive officer of the government
in conformity with and based upon a statute authorizing such regulation constitutes an offense
and renders the offender liable to punishment in accordance with the provisions of the law (U.S.
vs. Tupasi Molina, 29 Phil. 119, 124).

In other words, a violation or infringement of a rule or regulation validly issued can constitute a
crime punishable as provided in the authorizing statute and by virtue of the latter (People vs.
Exconde 101 Phil. 1125, 1132).
It has been held that "to declare what shall constitute a crime and how it shall be punished is a
power vested exclusively in the legislature, and it may not be delegated to any other body or
agency" (1 Am. Jur. 2nd, sec. 127, p. 938; Texas Co. vs. Montgomery, 73 F. Supp. 527).

In the instant case the regulation penalizing electro fishing is not strictly in accordance with the
Fisheries Law, under which the regulation was issued, because the law itself does not expressly
punish electro fishing.

The instant case is similar to People vs. Santos, 63 Phil. 300. The Santos case involves section 28
of Fish and Game Administrative Order No. 2 issued by the Secretary of Agriculture and Natural
Resources pursuant to the aforementioned section 4 of the Fisheries Law.

Section 28 contains the proviso that a fishing boat not licensed under the Fisheries Law and
under the said administrative order may fish within three kilometers of the shoreline of islands
and reservations over which jurisdiction is exercised by naval and military reservations
authorities of the United States only upon receiving written permission therefor, which
permission may be granted by the Secretary upon recommendation of the military or naval
authorities concerned. A violation of the proviso may be proceeded against under section 45 of
the Federal Penal Code.

Augusto A. Santos was prosecuted under that provision in the Court of First Instance of Cavite
for having caused his two fishing boats to fish, loiter and anchor without permission from the
Secretary within three kilometers from the shoreline of Corrigidor Island.

This Court held that the Fisheries Law does not prohibit boats not subject to license from fishing
within three kilometers of the shoreline of islands and reservations over which jurisdiction is
exercised by naval and military authorities of the United States, without permission from the
Secretary of Agriculture and Natural Resources upon recommendation of the military and naval
authorities concerned.

As the said law does not penalize the act mentioned in section 28 of the administrative order, the
promulgation of that provision by the Secretary "is equivalent to legislating on the matter, a
power which has not been and cannot be delegated to him, it being expressly reserved" to the
lawmaking body. "Such an act constitutes not only an excess of the regulatory power conferred
upon the Secretary but also an exercise of a legislative power which he does not have, and
therefore" the said provision "is null and void and without effect". Hence, the charge against
Santos was dismiss.

A penal statute is strictly construed. While an administrative agency has the right to make ranks
and regulations to carry into effect a law already enacted, that power should not be confused with
the power to enact a criminal statute. An administrative agency can have only the administrative
or policing powers expressly or by necessary implication conferred upon it. (Glustrom vs. State,
206 Ga. 734, 58 Second 2d 534; See 2 Am. Jr. 2nd 129-130).

Where the legislature has delegated to executive or administrative officers and boards authority
to promulgate rules to carry out an express legislative purpose, the rules of administrative
officers and boards, which have the effect of extending, or which conflict with the authority
granting statute, do not represent a valid precise of the rule-making power but constitute an
attempt by an administrative body to legislate (State vs. Miles, Wash. 2nd 322, 105 Pac. 2nd 51).

In a prosecution for a violation of an administrative order, it must clearly appear that the order is
one which falls within the scope of the authority conferred upon the administrative body, and the
order will be scrutinized with special care. (State vs. Miles supra).

The Miles case involved a statute which authorized the State Game Commission "to adopt,
promulgate, amend and/or repeal, and enforce reasonable rules and regulations governing and/or
prohibiting the taking of the various classes of game.

Under that statute, the Game Commission promulgated a rule that "it shall be unlawful to offer,
pay or receive any reward, prize or compensation for the hunting, pursuing, taking, killing
or displaying of any game animal, game bird or game fish or any part thereof."

Beryl S. Miles, the owner of a sporting goods store, regularly offered a ten-down cash prize to
the person displaying the largest deer in his store during the open for hunting such game animals.
For that act, he was charged with a violation of the rule Promulgated by the State Game
Commission.

It was held that there was no statute penalizing the display of game. What the statute penalized
was the taking of game. If the lawmaking body desired to prohibit the display of game, it could
have readily said so. It was not lawful for the administrative board to extend or modify the
statute. Hence, the indictment against Miles was quashed. The Miles case is similar to this case.

WHEREFORE, the lower court's decision of June 9, 1970 is set aside for lack of appellate
jurisdiction and the order of dismissal rendered by the municipal court of Sta. Cruz, Laguna in
Criminal Case No. 5429 is affirmed. Costs de oficio.

SO ORDERED.

Barredo, Concepcion, Jr., Santos and Guerrero, JJ., concur.1äwphï1.ñët

Fernando and Antonio, JJ., took no part.

Guerrero, J., was designated to sit in the Second Division.