G.R. No.
L-14639 March 25, 1919 patrol wagons, and placed them aboard the steamers that
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as
remarkable as the one which this application for habeas
corpus submits for decision. While hardly to be expected to be
met with in this modern epoch of triumphant democracy, yet,
after all, the cause presents no great difficulty if there is kept in
the forefront of our minds the basic principles of popular
government, and if we give expression to the paramount
purpose for which the courts, as an independent power of such
a government, were constituted. The primary question is —
Shall the judiciary permit a government of the men instead of a
government of laws to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these
proceedings, but which might prove profitable reading for other
departments of the government, the facts are these: The Mayor
of the city of Manila, Justo Lukban, for the best of all reasons, to
exterminate vice, ordered the segregated district for women of
ill repute, which had been permitted for a number of years in
the city of Manila, closed. Between October 16 and October 25,
1918, the women were kept confined to their houses in the
district by the police. Presumably, during this period, the city
authorities quietly perfected arrangements with the Bureau of
Labor for sending the women to Davao, Mindanao, as laborers;
with some government office for the use of the coastguard
cutters Corregidor and Negros, and with the Constabulary for a
guard of soldiers. At any rate, about midnight of October 25, the
police, acting pursuant to orders from the chief of police, Anton
Hohmann and the Mayor of the city of Manila, Justo Lukban,
descended upon the houses, hustled some 170 inmates into
the city of Manila, and by certain unknown parties. The writ was
awaited their arrival. The women were given no opportunity to
collect their belongings, and apparently were under the
impression that they were being taken to a police station for an
investigation. They had no knowledge that they were destined
for a life in Mindanao. They had not been asked if they wished
to depart from that region and had neither directly nor
indirectly given their consent to the deportation. The
involuntary guests were received on board the steamers by a
representative of the Bureau of Labor and a detachment of
Constabulary soldiers. The two steamers with their unwilling
passengers sailed for Davao during the night of October 25.
The vessels reached their destination at Davao on October 29.
The women were landed and receipted for as laborers by
Francisco Sales, provincial governor of Davao, and by Feliciano
Yñigo and Rafael Castillo. The governor and
the hacendero Yñigo, who appear as parties in the case, had no
previous notification that the women were prostitutes who had
been expelled from the city of Manila. The further happenings
to these women and the serious charges growing out of alleged
ill-treatment are of public interest, but are not essential to the
disposition of this case. Suffice it to say, generally, that some of
the women married, others assumed more or less clandestine
relations with men, others went to work in different capacities,
others assumed a life unknown and disappeared, and a goodly
portion found means to return to Manila.
To turn back in our narrative, just about the time
the Corregidor and the Negros were putting in to Davao, the
attorney for the relatives and friends of a considerable number
of the deportees presented an application for habeas corpus to
a member of the Supreme Court. Subsequently, the application,
through stipulation of the parties, was made to include all of the
women who were sent away from Manila to Davao and, as the
same questions concerned them all, the application will be
considered as including them. The application set forth the
salient facts, which need not be repeated, and alleged that the
women were illegally restrained of their liberty by Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of
made returnable before the full court. The city fiscal appeared
for the respondents, Lukban and Hohmann, admitted certain
facts relative to sequestration and deportation, and prayed that
the writ should not be granted because the petitioners were not
proper parties, because the action should have been begun in
the Court of First Instance for Davao, Department of Mindanao
and Sulu, because the respondents did not have any of the
women under their custody or control, and because their
jurisdiction did not extend beyond the boundaries of the city of
Manila. According to an exhibit attached to the answer of the
fiscal, the 170 women were destined to be laborers, at good
salaries, on the haciendas of Yñigo and Governor Sales. In open
court, the fiscal admitted, in answer to question of a member of
the court, that these women had been sent out of Manila
without their consent. The court awarded the writ, in an order
of November 4, that directed Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of Manila,
Francisco Sales, governor of the province of Davao, and
Feliciano Yñigo, an hacendero of Davao, to bring before the
court the persons therein named, alleged to be deprived of
their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned
to Manila at their own expense. On motion of counsel for
petitioners, their testimony was taken before the clerk of the
Supreme Court sitting as commissioners. On the day named in
the order, December 2nd, 1918, none of the persons in whose
behalf the writ was issued were produced in court by the
respondents. It has been shown that three of those who had
been able to come back to Manila through their own efforts,
were notified by the police and the secret service to appear
before the court. The fiscal appeared, repeated the facts more
comprehensively, reiterated the stand taken by him when
pleading to the original petition copied a telegram from the
Mayor of the city of Manila to the provincial governor of Davao
and the answer thereto, and telegrams that had passed
between the Director of Labor and the attorney for that Bureau
then in Davao, and offered certain affidavits showing that the
women were contained with their life in Mindanao and did not
wish to return to Manila. Respondents Sales answered alleging
that it was not possible to fulfill the order of the Supreme Court
because the women had never been under his control, because
they were at liberty in the Province of Davao, and because they
had married or signed contracts as laborers. Respondent Yñigo
answered alleging that he did not have any of the women under
his control and that therefore it was impossible for him to obey
the mandate. The court, after due deliberation, on December
10, 1918, promulgated a second order, which related that the
respondents had not complied with the original order to the
satisfaction of the court nor explained their failure to do so, and
therefore directed that those of the women not in Manila be
brought before the court by respondents Lukban, Hohmann,
Sales, and Yñigo on January 13, 1919, unless the women should,
in written statements voluntarily made before the judge of first
instance of Davao or the clerk of that court, renounce the right,
or unless the respondents should demonstrate some other legal
motives that made compliance impossible. It was further stated
that the question of whether the respondents were in contempt
of court would later be decided and the reasons for the order
announced in the final decision.
Before January 13, 1919, further testimony including that of a
number of the women, of certain detectives and policemen, and
of the provincial governor of Davao, was taken before the clerk
of the Supreme Court sitting as commissioner and the clerk of
the Court of First Instance of Davao acting in the same capacity.
On January 13, 1919, the respondents technically presented
before the Court the women who had returned to the city
through their own efforts and eight others who had been
brought to Manila by the respondents. Attorneys for the
respondents, by their returns, once again recounted the facts
and further endeavored to account for all of the persons
involved in the habeas corpus. In substance, it was stated that
the respondents, through their representatives and agents, had
succeeded in bringing from Davao with their consent eight
women; that eighty-one women were found in Davao who, on
notice that if they desired they could return to Manila,
transportation fee, renounced the right through sworn
statements; that fifty-nine had already returned to Manila by
other means, and that despite all efforts to find them twenty-six
could not be located. Both counsel for petitioners and the city
fiscal were permitted to submit memoranda. The first formally
asked the court to find Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of Manila,
Jose Rodriguez and Fernando Ordax, members of the police
force of the city of Manila, Feliciano Yñigo, an hacendero of
Davao, Modesto Joaquin, the attorney for the Bureau of Labor,
and Anacleto Diaz, fiscal of the city of Manila, in contempt of
court. The city fiscal requested that the replica al memorandum
de los recurridos, (reply to respondents' memorandum) dated
January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for
granting the writ of habeas corpus in the final decision. We will
now proceed to do so.
One fact, and one fact only, need be recalled — these one
hundred and seventy women were isolated from society, and
then at night, without their consent and without any
opportunity to consult with friends or to defend their rights,
were forcibly hustled on board steamers for transportation to
regions unknown. Despite the feeble attempt to prove that the
women left voluntarily and gladly, that such was not the case is
shown by the mere fact that the presence of the police and the
constabulary was deemed necessary and that these officers of
the law chose the shades of night to cloak their secret and
stealthy acts. Indeed, this is a fact impossible to refute and
practically admitted by the respondents.
With this situation, a court would next expect to resolve the
question — By authority of what law did the Mayor and the
Chief of Police presume to act in deporting by duress these
persons from Manila to another distant locality within the
Philippine Islands? We turn to the statutes and we find —
Alien prostitutes can be expelled from the Philippine Islands in
conformity with an Act of congress. The Governor-General can
order the eviction of undesirable aliens after a hearing from the
Islands. Act No. 519 of the Philippine Commission and section
733 of the Revised Ordinances of the city of Manila provide for
the conviction and punishment by a court of justice of any
person who is a common prostitute. Act No. 899 authorizes the
return of any citizen of the United States, who may have been
convicted of vagrancy, to the homeland. New York and other
States have statutes providing for the commitment to the
House of Refuge of women convicted of being common
prostitutes. Always a law! Even when the health authorities
compel vaccination, or establish a quarantine, or place a leprous
person in the Culion leper colony, it is done pursuant to some
law or order. But one can search in vain for any law, order, or
regulation, which even hints at the right of the Mayor of the city
of Manila or the chief of police of that city to force citizens of
the Philippine Islands — and these women despite their being in
a sense lepers of society are nevertheless not chattels but
Philippine citizens protected by the same constitutional
guaranties as are other citizens — to change their domicile from
Manila to another locality. On the contrary, Philippine penal law
specifically punishes any public officer who, not being expressly
authorized by law or regulation, compels any person to change
his residence.
In other countries, as in Spain and Japan, the privilege of
domicile is deemed so important as to be found in the Bill of
Rights of the Constitution. Under the American constitutional
system, liberty of abode is a principle so deeply imbedded in
jurisprudence and considered so elementary in nature as not
even to require a constitutional sanction. Even the Governor-
General of the Philippine Islands, even the President of the
United States, who has often been said to exercise more power
than any king or potentate, has no such arbitrary prerogative,
either inherent or express. Much less, therefore, has the
executive of a municipality, who acts within a sphere of
delegated powers. If the mayor and the chief of police could, at
their mere behest or even for the most praiseworthy of
motives, render the liberty of the citizen so insecure, then the
presidents and chiefs of police of one thousand other
municipalities of the Philippines have the same privilege. If
these officials can take to themselves such power, then any
other official can do the same. And if any official can exercise
the power, then all persons would have just as much right to do
so. And if a prostitute could be sent against her wishes and
under no law from one locality to another within the country,
then officialdom can hold the same club over the head of any
citizen.
Law defines power. Centuries ago Magna Charta decreed
that — "No freeman shall be taken, or imprisoned, or be
disseized of his freehold, or liberties, or free customs, or be
outlawed, or exiled, or any other wise destroyed; nor will we
pass upon him nor condemn him, but by lawful judgment of his
peers or by the law of the land. We will sell to no man, we will
not deny or defer to any man either justice or right." (Magna
Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No
official, no matter how high, is above the law. The courts are
the forum which functionate to safeguard individual liberty and
to punish official transgressors. "The law," said Justice Miller,
delivering the opinion of the Supreme Court of the United
States, "is the only supreme power in our system of
government, and every man who by accepting office
participates in its functions is only the more strongly bound to
submit to that supremacy, and to observe the limitations which
it imposes upon the exercise of the authority which it gives."
(U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said
Justice Matthews of the same high tribunal in another case,
"that one man may be compelled to hold his life, or the means
of living, or any material right essential to the enjoyment of life,
at the mere will of another, seems to be intolerable in any
country where freedom prevails, as being the essence of slavery
itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this
explains the motive in issuing the writ of habeas corpus, and
makes clear why we said in the very beginning that the primary
question was whether the courts should permit a government
of men or a government of laws to be established in the
Philippine Islands.
What are the remedies of the unhappy victims of official
oppression? The remedies of the citizen are three: (1) Civil
action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the
aggrieved party may recoup money damages. It may still rest
with the parties in interest to pursue such an action, but it was
never intended effectively and promptly to meet any such
situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in
force in these Islands provides:
Any public officer not thereunto authorized by law or by
regulations of a general character in force in the
Philippines who shall banish any person to a place more
than two hundred kilometers distant from his domicile,
except it be by virtue of the judgment of a court, shall
be punished by a fine of not less than three hundred
and twenty-five and not more than three thousand two
hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by
law or by regulation of a general character in force in
the Philippines who shall compel any person to change
his domicile or residence shall suffer the penalty of
destierro and a fine of not less than six hundred and
twenty-five and not more than six thousand two
hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the
proper prosecuting officers find that any public officer has
violated this provision of law, these prosecutors will institute
and press a criminal prosecution just as vigorously as they have
defended the same official in this action. Nevertheless, that the
act may be a crime and that the persons guilty thereof can be
proceeded against, is no bar to the instant proceedings. To
quote the words of Judge Cooley in a case which will later be
referred to — "It would be a monstrous anomaly in the law if to
an application by one unlawfully confined, ta be restored to his
liberty, it could be a sufficient answer that the confinement was
a crime, and therefore might be continued indefinitely until the
guilty party was tried and punished therefor by the slow process
of criminal procedure." (In the matter of Jackson [1867], 15
Mich., 416, 434.) The writ of habeas corpus was devised and
exists as a speedy and effectual remedy to relieve persons from
unlawful restraint, and as the best and only sufficient defense of
personal freedom. Any further rights of the parties are left
untouched by decision on the writ, whose principal purpose is
to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents
have raised three specific objections to its issuance in this
instance. The fiscal has argued (l) that there is a defect in parties
petitioners, (2) that the Supreme Court should not a assume
jurisdiction, and (3) that the person in question are not
restrained of their liberty by respondents. It was finally
suggested that the jurisdiction of the Mayor and the chief of
police of the city of Manila only extends to the city limits and
that perforce they could not bring the women from Davao.
The first defense was not presented with any vigor by counsel.
The petitioners were relatives and friends of the deportees. The
way the expulsion was conducted by the city officials made it
impossible for the women to sign a petition for habeas corpus.
It was consequently proper for the writ to be submitted by
persons in their behalf. (Code of Criminal Procedure, sec. 78;
Code of Civil Procedure, sec. 527.) The law, in its zealous regard
for personal liberty, even makes it the duty of a court or judge
to grant a writ of habeas corpus if there is evidence that within
the court's jurisdiction a person is unjustly imprisoned or
restrained of his liberty, though no application be made
therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had
standing in court.
The fiscal next contended that the writ should have been asked
for in the Court of First Instance of Davao or should have been
made returnable before that court. It is a general rule of good
practice that, to avoid unnecessary expense and inconvenience,
petitions for habeas corpus should be presented to the nearest
judge of the court of first instance. But this is not a hard and fast
rule. The writ of habeas corpus may be granted by the Supreme
Court or any judge thereof enforcible anywhere in the
Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of
Civil Procedure, sec. 526.) Whether the writ shall be made
returnable before the Supreme Court or before an inferior court
rests in the discretion of the Supreme Court and is dependent
on the particular circumstances. In this instance it was not
shown that the Court of First Instance of Davao was in session,
or that the women had any means by which to advance their
plea before that court. On the other hand, it was shown that the
petitioners with their attorneys, and the two original
respondents with their attorney, were in Manila; it was shown
that the case involved parties situated in different parts of the
Islands; it was shown that the women might still be imprisoned
or restrained of their liberty; and it was shown that if the writ
was to accomplish its purpose, it must be taken cognizance of
and decided immediately by the appellate court. The failure of
the superior court to consider the application and then to grant
the writ would have amounted to a denial of the benefits of the
writ.
The last argument of the fiscal is more plausible and more
difficult to meet. When the writ was prayed for, says counsel,
the parties in whose behalf it was asked were under no
restraint; the women, it is claimed, were free in Davao, and the
jurisdiction of the mayor and the chief of police did not extend
beyond the city limits. At first blush, this is a tenable position.
On closer examination, acceptance of such dictum is found to
be perversive of the first principles of the writ of habeas corpus.
A prime specification of an application for a writ of habeas
corpus is restraint of liberty. The essential object and purpose of
the writ of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to
relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient. The
forcible taking of these women from Manila by officials of that
city, who handed them over to other parties, who deposited
them in a distant region, deprived these women of freedom of
locomotion just as effectively as if they had been imprisoned.
Placed in Davao without either money or personal belongings,
they were prevented from exercising the liberty of going when
and where they pleased. The restraint of liberty which began in
Manila continued until the aggrieved parties were returned to
Manila and released or until they freely and truly waived his
right.
Consider for a moment what an agreement with such a defense
would mean. The chief executive of any municipality in the
Philippines could forcibly and illegally take a private citizen and
place him beyond the boundaries of the municipality, and then,
when called upon to defend his official action, could calmly fold
his hands and claim that the person was under no restraint and
that he, the official, had no jurisdiction over this other
municipality. We believe the true principle should be that, if the
respondent is within the jurisdiction of the court and has it in
his power to obey the order of the court and thus to undo the
wrong that he has inflicted, he should be compelled to do so.
Even if the party to whom the writ is addressed has illegally
parted with the custody of a person before the application for
the writ is no reason why the writ should not issue. If the mayor
and the chief of police, acting under no authority of law, could
deport these women from the city of Manila to Davao, the same
officials must necessarily have the same means to return them
from Davao to Manila. The respondents, within the reach of
process, may not be permitted to restrain a fellow citizen of her
liberty by forcing her to change her domicile and to avow the
act with impunity in the courts, while the person who has lost
her birthright of liberty has no effective recourse. The great writ
of liberty may not thus be easily evaded.
It must be that some such question has heretofore been
presented to the courts for decision. Nevertheless, strange as it
may seem, a close examination of the authorities fails to reveal
any analogous case. Certain decisions of respectable courts are
however very persuasive in nature.
A question came before the Supreme Court of the State of
Michigan at an early date as to whether or not a writ of habeas
corpus would issue from the Supreme Court to a person within
the jurisdiction of the State to bring into the State a minor child
under guardianship in the State, who has been and continues to
be detained in another State. The membership of the Michigan
Supreme Court at this time was notable. It was composed of
Martin, chief justice, and Cooley, Campbell, and Christiancy,
justices. On the question presented the court was equally
divided. Campbell, J., with whom concurred Martin, C. J., held
that the writ should be quashed. Cooley, J., one of the most
distinguished American judges and law-writers, with whom
concurred Christiancy, J., held that the writ should issue. Since
the opinion of Justice Campbell was predicated to a large extent
on his conception of the English decisions, and since, as will
hereafter appear, the English courts have taken a contrary view,
only the following eloquent passages from the opinion of Justice
Cooley are quoted:
I have not yet seen sufficient reason to doubt the power
of this court to issue the present writ on the petition
which was laid before us. . . .
It would be strange indeed if, at this late day, after the
eulogiums of six centuries and a half have been
expended upon the Magna Charta, and rivers of blood
shed for its establishment; after its many confirmations,
until Coke could declare in his speech on the petition of
right that "Magna Charta was such a fellow that he will
have no sovereign," and after the extension of its
benefits and securities by the petition of right, bill of
rights and habeas corpus acts, it should now be
discovered that evasion of that great clause for the
protection of personal liberty, which is the life and soul
of the whole instrument, is so easy as is claimed here. If
it is so, it is important that it be determined without
delay, that the legislature may apply the proper
remedy, as I can not doubt they would, on the subject
being brought to their notice. . . .
The second proposition — that the statutory provisions
are confined to the case of imprisonment within the
state — seems to me to be based upon a misconception
as to the source of our jurisdiction. It was never the
case in England that the court of king's bench derived its
jurisdiction to issue and enforce this writ from the
 statute. Statutes were not passed to give the right, but
to compel the observance of rights which existed. . . .
The important fact to be observed in regard to the
mode of procedure upon this writ is, that it is directed
to and served upon, not the person confined, but his
jailor. It does not reach the former except through the
latter. The officer or person who serves it does not
unbar the prison doors, and set the prisoner free, but
the court relieves him by compelling the oppressor to
release his constraint. The whole force of the writ is
spent upon the respondent, and if he fails to obey it,
the means to be resorted to for the purposes of
compulsion are fine and imprisonment. This is the
ordinary mode of affording relief, and if any other
means are resorted to, they are only auxiliary to those
which are usual. The place of confinement is, therefore,
not important to the relief, if the guilty party is within
reach of process, so that by the power of the court he
can be compelled to release his grasp. The difficulty of
affording redress is not increased by the confinement
being beyond the limits of the state, except as greater
distance may affect it. The important question is, where
the power of control exercised? And I am aware of no
other remedy. (In the matter of Jackson [1867], 15
Mich., 416.)
The opinion of Judge Cooley has since been accepted as
authoritative by other courts. (Rivers vs. Mitchell [1881], 57
Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep.,
1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the
subject. Thus, a child had been taken out of English by the
respondent. A writ of habeas corpus was issued by the Queen's
Bench Division upon the application of the mother and her
husband directing the defendant to produce the child. The
judge at chambers gave defendant until a certain date to
produce the child, but he did not do so. His return stated that
the child before the issuance of the writ had been handed over
by him to another; that it was no longer in his custody or
control, and that it was impossible for him to obey the writ. He
was found in contempt of court. On appeal, the court, through
Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was
issued on January 22. That writ commanded the
defendant to have the body of the child before a judge
in chambers at the Royal Courts of Justice immediately
after the receipt of the writ, together with the cause of
her being taken and detained. That is a command to
bring the child before the judge and must be obeyed,
unless some lawful reason can be shown to excuse the
nonproduction of the child. If it could be shown that by
reason of his having lawfully parted with the possession
of the child before the issuing of the writ, the defendant
had no longer power to produce the child, that might be
an answer; but in the absence of any lawful reason he is
bound to produce the child, and, if he does not, he is in
contempt of the Court for not obeying the writ without
lawful excuse. Many efforts have been made in
argument to shift the question of contempt to some
anterior period for the purpose of showing that what
was done at some time prior to the writ cannot be a
contempt. But the question is not as to what was done
before the issue of the writ. The question is whether
there has been a contempt in disobeying the writ it was
issued by not producing the child in obedience to its
commands. (The Queen vs. Bernardo [1889], 23 Q. B.
D., 305. See also to the same effect the Irish case of In
re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The
Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D.,
283.)
A decision coming from the Federal Courts is also of interest.
A habeas corpus was directed to the defendant to have before
the circuit court of the District of Columbia three colored
persons, with the cause of their detention. Davis, in his return
to the writ, stated on oath that he had purchased the negroes
as slaves in the city of Washington; that, as he believed, they
were removed beyond the District of Columbia before the
service of the writ of habeas corpus, and that they were then
beyond his control and out of his custody. The evidence tended
to show that Davis had removed the negroes because he
suspected they would apply for a writ of habeas corpus. The
court held the return to be evasive and insufficient, and that
Davis was bound to produce the negroes, and Davis being
present in court, and refusing to produce them, ordered that he
be committed to the custody of the marshall until he should
produce the negroes, or be otherwise discharged in due course
of law. The court afterwards ordered that Davis be released
upon the production of two of the negroes, for one of the
negroes had run away and been lodged in jail in Maryland. Davis
produced the two negroes on the last day of the term. (United
States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926.
See also Robb vs. Connolly [1883], 111 U.S., 624; Church on
Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one
of the defense offered by the respondents constituted a
legitimate bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondent
complied with the two orders of the Supreme Court awarding
the writ of habeas corpus, and if it be found that they did not,
whether the contempt should be punished or be taken as
purged.
The first order, it will be recalled, directed Justo Lukban, Anton
Hohmann, Francisco Sales, and Feliciano Yñigo to present the
persons named in the writ before the court on December 2,
1918. The order was dated November 4, 1918. The respondents
were thus given ample time, practically one month, to comply
with the writ. As far as the record discloses, the Mayor of the
city of Manila waited until the 21st of November before sending
a telegram to the provincial governor of Davao. According to
the response of the attorney for the Bureau of Labor to the
telegram of his chief, there were then in Davao women who
desired to return to Manila, but who should not be permitted to
do so because of having contracted debts. The half-hearted
effort naturally resulted in none of the parties in question being
brought before the court on the day named.
For the respondents to have fulfilled the court's order, three
optional courses were open: (1) They could have produced the
bodies of the persons according to the command of the writ; or
(2) they could have shown by affidavit that on account of
sickness or infirmity those persons could not safely be brought
before the court; or (3) they could have presented affidavits to
show that the parties in question or their attorney waived the
right to be present. (Code of Criminal Procedure, sec. 87.) They
did not produce the bodies of the persons in whose behalf the
writ was granted; they did not show impossibility of
performance; and they did not present writings that waived the
right to be present by those interested. Instead a few
stereotyped affidavits purporting to show that the women were
contended with their life in Davao, some of which have since
been repudiated by the signers, were appended to the return.
That through ordinary diligence a considerable number of the
women, at least sixty, could have been brought back to Manila
is demonstrated to be found in the municipality of Davao, and
that about this number either returned at their own expense or
were produced at the second hearing by the respondents.
The court, at the time the return to its first order was made,
would have been warranted summarily in finding the
respondents guilty of contempt of court, and in sending them to
jail until they obeyed the order. Their excuses for the non-
production of the persons were far from sufficient. The,
authorities cited herein pertaining to somewhat similar facts all
tend to indicate with what exactitude a habeas corpus writ must
be fulfilled. For example, in Gossage's case, supra, the
Magistrate in referring to an earlier decision of the Court, said:
"We thought that, having brought about that state of things by
his own illegal act, he must take the consequences; and we said
that he was bound to use every effort to get the child back; that
he must do much more than write letters for the purpose; that
he must advertise in America, and even if necessary himself go
after the child, and do everything that mortal man could do in
the matter; and that the court would only accept clear proof of
an absolute impossibility by way of excuse." In other words, the
return did not show that every possible effort to produce the
women was made by the respondents. That the court forebore
at this time to take drastic action was because it did not wish to
see presented to the public gaze the spectacle of a clash
between executive officials and the judiciary, and because it
desired to give the respondents another chance to demonstrate
their good faith and to mitigate their wrong.
In response to the second order of the court, the respondents
appear to have become more zealous and to have shown a
better spirit. Agents were dispatched to Mindanao, placards
were posted, the constabulary and the municipal police joined
in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and
counter-charges in such a bitterly contested case are to be
expected, and while a critical reading of the record might reveal
a failure of literal fulfillment with our mandate, we come to
conclude that there is a substantial compliance with it. Our
finding to this effect may be influenced somewhat by our
sincere desire to see this unhappy incident finally closed. If any
wrong is now being perpetrated in Davao, it should receive an
executive investigation. If any particular individual is still
restrained of her liberty, it can be made the object of
separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a
substantial compliance with it, nothing further in this
connection remains to be done.
The attorney for the petitioners asks that we find in contempt
of court Justo Lukban, Mayor of the city of Manila, Anton
Hohmann, chief of police of the city of Manila, Jose Rodriguez,
and Fernando Ordax, members of the police force of the city of
Manila, Modesto Joaquin, the attorney for the Bureau of Labor,
Feliciano Yñigo, an hacendero of Davao, and Anacleto Diaz,
Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised
on the preservative and not on the vindictive principle. Only
occasionally should the court invoke its inherent power in order
to retain that respect without which the administration of
justice must falter or fail. Nevertheless when one is commanded
to produce a certain person and does not do so, and does not
offer a valid excuse, a court must, to vindicate its authority,
adjudge the respondent to be guilty of contempt, and must
order him either imprisoned or fined. An officer's failure to
produce the body of a person in obedience to a writ of habeas
corpus when he has power to do so, is a contempt committed in
the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re
Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial
regard for human imperfections, we cannot say that any of the
respondents, with the possible exception of the first named, has
flatly disobeyed the court by acting in opposition to its
authority. Respondents Hohmann, Rodriguez, Ordax, and
Joaquin only followed the orders of their chiefs, and while,
under the law of public officers, this does not exonerate them
entirely, it is nevertheless a powerful mitigating circumstance.
The hacendero Yñigo appears to have been drawn into the case
through a misconstruction by counsel of telegraphic
communications. The city fiscal, Anacleto Diaz, would seem to
have done no more than to fulfill his duty as the legal
representative of the city government. Finding him innocent of
any disrespect to the court, his counter-motion to strike from
the record the memorandum of attorney for the petitioners,
which brings him into this undesirable position, must be
granted. When all is said and done, as far as this record
discloses, the official who was primarily responsible for the
unlawful deportation, who ordered the police to accomplish the
same, who made arrangements for the steamers and the
constabulary, who conducted the negotiations with the Bureau
of Labor, and who later, as the head of the city government, had
it within his power to facilitate the return of the unfortunate
women to Manila, was Justo Lukban, the Mayor of the city of
Manila. His intention to suppress the social evil was
commendable. His methods were unlawful. His regard for the
writ of habeas corpus issued by the court was only tardily and
reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of
the Code of Civil Procedure, which relates to the penalty for
disobeying the writ, and in pursuance thereof to require
respondent Lukban to forfeit to the parties aggrieved as much
as P400 each, which would reach to many thousands of pesos,
and in addition to deal with him as for a contempt. Some
members of the court are inclined to this stern view. It would
also be possible to find that since respondent Lukban did
comply substantially with the second order of the court, he has
purged his contempt of the first order. Some members of the
court are inclined to this merciful view. Between the two
extremes appears to lie the correct finding. The failure of
respondent Lukban to obey the first mandate of the court
tended to belittle and embarrass the administration of justice to
such an extent that his later activity may be considered only as
extenuating his conduct. A nominal fine will at once command
such respect without being unduly oppressive — such an
amount is P100.

In resume — as before stated, no further action on the writ

of habeas corpus is necessary. The respondents Hohmann,
Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be
in contempt of court. Respondent Lukban is found in contempt
of court and shall pay into the office of the clerk of the Supreme
Court within five days the sum of one hundred pesos (P100).
The motion of the fiscal of the city of Manila to strike from the
record the Replica al Memorandum de los Recurridos of January
25, 1919, is granted. Costs shall be taxed against respondents.
So ordered.

In concluding this tedious and disagreeable task, may we not be

permitted to express the hope that this decision may serve to
bulwark the fortifications of an orderly government of laws and
to protect individual liberty from illegal encroachment.

Arellano, C.J., Avanceña and Moir, JJ., concur.

Johnson, and Street, JJ., concur in the result.
G.R. No. 169777* April 20, 2006
SENATE OF THE PHILIPPINES, represented by FRANKLIN M.
DRILON, in his capacity as Senate President, JUAN M. FLAVIER,
in his capacity as Senate President Pro Tempore, FRANCIS N.
PANGILINAN, in his capacity as Majority Leader, AQUILINO Q.
PIMENTEL, JR., in his capacity as Minority Leader, SENATORS
RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO,
JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA,
JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M.
LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA
III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary
and alter-ego of President Gloria Macapagal-Arroyo, and
anyone acting in his stead and in behalf of the President of the
Philippines, Respondents.
DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly
republican state. Even in the early history of republican thought,
however, it has been recognized that the head of government
may keep certain information confidential in pursuit of the
public interest. Explaining the reason for vesting executive
power in only one magistrate, a distinguished delegate to the
U.S. Constitutional Convention said: "Decision, activity, secrecy,
and dispatch will generally characterize the proceedings of one
man, in a much more eminent degree than the proceedings of
any greater number; and in proportion as the number is
increased, these qualities will be diminished."1
History has been witness, however, to the fact that the power
to withhold information lends itself to abuse, hence, the
necessity to guard it zealously.
The present consolidated petitions for certiorari and prohibition
proffer that the President has abused such power by issuing
Executive Order No. 464 (E.O. 464) last September 28, 2005.
They thus pray for its declaration as null and void for being
unconstitutional.
In resolving the controversy, this Court shall proceed with the
recognition that the issuance under review has come from a co-
equal branch of government, which thus entitles it to a strong
presumption of constitutionality. Once the challenged order is
found to be indeed violative of the Constitution, it is duty-
bound to declare it so. For the Constitution, being the highest
expression of the sovereign will of the Filipino people, must
prevail over any issuance of the government that contravenes
its mandates.
In the exercise of its legislative power, the Senate of the
Philippines, through its various Senate Committees, conducts
inquiries or investigations in aid of legislation which call for,
inter alia, the attendance of officials and employees of the
executive department, bureaus, and offices including those
employed in Government Owned and Controlled Corporations,
the Armed Forces of the Philippines (AFP), and the Philippine
National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a
whole issued invitations to various officials of the Executive
Department for them to appear on September 29, 2005 as
resource speakers in a public hearing on the railway project of
the North Luzon Railways Corporation with the China National
Machinery and Equipment Group (hereinafter North Rail
Project). The public hearing was sparked by a privilege speech
of Senator Juan Ponce Enrile urging the Senate to investigate
the alleged overpricing and other unlawful provisions of the
contract covering the North Rail Project.
The Senate Committee on National Defense and Security
likewise issued invitations2 dated September 22, 2005 to the
following officials of the AFP: the Commanding General of the
Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector
General of the AFP Vice Admiral Mateo M. Mayuga; Deputy
Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R.
Danga; Chief of the Intelligence Service of the AFP Brig. Gen.
Marlu Q. Quevedo; Assistant Superintendent of the Philippine
Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and
Assistant Commandant, Corps of Cadets of the PMA, Col.
Alexander F. Balutan, for them to attend as resource persons in
a public hearing scheduled on September 28, 2005 on the
following: (1) Privilege Speech of Senator Aquilino Q. Pimentel
Jr., delivered on June 6, 2005 entitled "Bunye has Provided
Smoking Gun or has Opened a Can of Worms that Show Massive
Electoral Fraud in the Presidential Election of May 2005"; (2)
Privilege Speech of Senator Jinggoy E. Estrada delivered on July
26, 2005 entitled "The Philippines as the Wire-Tapping Capital
of the World"; (3) Privilege Speech of Senator Rodolfo Biazon
delivered on August 1, 2005 entitled "Clear and Present
Danger"; (4) Senate Resolution No. 285 filed by Senator Maria
Ana Consuelo Madrigal – Resolution Directing the Committee
on National Defense and Security to Conduct an Inquiry, in Aid
of Legislation, and in the National Interest, on the Role of the
Military in the So-called "Gloriagate Scandal"; and (5) Senate
Resolution No. 295 filed by Senator Biazon – Resolution
Directing the Committee on National Defense and Security to
Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of
the President of the Philippines.
Also invited to the above-said hearing scheduled on September
28 2005 was the AFP Chief of Staff, General Generoso S. Senga
who, by letter3 dated September 27, 2005, requested for its
postponement "due to a pressing operational situation that
demands [his utmost personal attention" while "some of the
invited AFP officers are currently attending to other urgent
operational matters."
On September 28, 2005, Senate President Franklin M. Drilon
received from Executive Secretary Eduardo R. Ermita a
letter4 dated September 27, 2005 "respectfully request[ing] for
the postponement of the hearing [regarding the NorthRail
project] to which various officials of the Executive Department
have been invited" in order to "afford said officials ample time
and opportunity to study and prepare for the various issues so
that they may better enlighten the Senate Committee on its
investigation."
5 1995). Further, Republic Act No. 6713 or the Code of Conduct
Senate President Drilon, however, wrote Executive Secretary
Ermita that the Senators "are unable to accede to [his request]"
as it "was sent belatedly" and "[a]ll preparations and
arrangements as well as notices to all resource persons were
completed [the previous] week."
Senate President Drilon likewise received on September 28,
2005 a letter6 from the President of the North Luzon Railways
Corporation Jose L. Cortes, Jr. requesting that the hearing on
the NorthRail project be postponed or cancelled until a copy of
the report of the UP Law Center on the contract agreements
relative to the project had been secured.
On September 28, 2005, the President issued E.O. 464,
"Ensuring Observance of the Principle of Separation of Powers,
Adherence to the Rule on Executive Privilege and Respect for
the Rights of Public Officials Appearing in Legislative Inquiries in
Aid of Legislation Under the Constitution, and For Other
Purposes,"7 which, pursuant to Section 6 thereof, took effect
immediately. The salient provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before
Congress. – In accordance with Article VI, Section 22 of the
Constitution and to implement the Constitutional provisions on
the separation of powers between co-equal branches of the
government, all heads of departments of the Executive Branch
of the government shall secure the consent of the President
prior to appearing before either House of Congress.
When the security of the State or the public interest so requires
and the President so states in writing, the appearance shall only
be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.
– the alleged wiretapping, Gen. Senga sent a letter9 to Senator
(a) Nature and Scope. - The rule of confidentiality based on
executive privilege is fundamental to the operation of
government and rooted in the separation of powers under the
Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May
and Ethical Standards for Public Officials and Employees
provides that Public Officials and Employees shall not use or
divulge confidential or classified information officially known to
them by reason of their office and not made available to the
public to prejudice the public interest.
Executive privilege covers all confidential or classified
information between the President and the public officers
covered by this executive order, including:
Conversations and correspondence between the President and
the public official covered by this executive order (Almonte vs.
Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002);
Military, diplomatic and other national security matters which in
the interest of national security should not be divulged
(Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v.
Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998).
Information between inter-government agencies prior to the
conclusion of treaties and executive agreements (Chavez v.
Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v.
Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998);
Matters affecting national security and public order (Chavez v.
Public Estates Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. – The following are covered by this
executive order:
Senior officials of executive departments who in the judgment
of the department heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines
and such other officers who in the judgment of the Chief of Staff
are covered by the executive privilege;
Philippine National Police (PNP) officers with rank of chief
superintendent or higher and such other officers who in the
judgment of the Chief of the PNP are covered by the executive
privilege;
Senior national security officials who in the judgment of the
National Security Adviser are covered by the executive privilege;
and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before
Congress. – All public officials enumerated in Section 2 (b)
hereof shall secure prior consent of the President prior to
appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence
to the rule on executive privilege and respect for the rights of
public officials appearing in inquiries in aid of legislation.
(Emphasis and underscoring supplied)
Also on September 28, 2005, Senate President Drilon received
from Executive Secretary Ermita a copy of E.O. 464, and another
letter8 informing him "that officials of the Executive Department
invited to appear at the meeting [regarding the NorthRail
project] will not be able to attend the same without the consent
of the President, pursuant to [E.O. 464]" and that "said officials
have not secured the required consent from the President." On
even date which was also the scheduled date of the hearing on
Biazon, Chairperson of the Committee on National Defense and
Security, informing him "that per instruction of [President
Arroyo], thru the Secretary of National Defense, no officer of
the [AFP] is authorized to appear before any Senate or
Congressional hearings without seeking a written approval from
the President" and "that no approval has been granted by the
President to any AFP officer to appear before the public hearing
of the Senate Committee on National Defense and Security
scheduled [on] 28 September 2005."
Despite the communications received from Executive Secretary
Ermita and Gen. Senga, the investigation scheduled by the
Committee on National Defense and Security pushed through,
with only Col. Balutan and Brig. Gen. Gudani among all the AFP
officials invited attending.
For defying President Arroyo’s order barring military personnel
from testifying before legislative inquiries without her approval,
Brig. Gen. Gudani and Col. Balutan were relieved from their
military posts and were made to face court martial proceedings.
As to the NorthRail project hearing scheduled on September 29,
2005, Executive Secretary Ermita, citing E.O. 464, sent letter of
regrets, in response to the invitations sent to the following
government officials: Light Railway Transit Authority
Administrator Melquiades Robles, Metro Rail Transit Authority
Administrator Roberto Lastimoso, Department of Justice (DOJ)
Chief State Counsel Ricardo V. Perez, then Presidential Legal
Counsel Merceditas Gutierrez, Department of Transportation
and Communication (DOTC) Undersecretary Guiling
Mamonding, DOTC Secretary Leandro Mendoza, Philippine
National Railways General Manager Jose Serase II, Monetary
Board Member Juanita Amatong, Bases Conversion
Development Authority Chairperson Gen. Narciso Abaya and
Secretary Romulo L. Neri.10 NorthRail President Cortes sent
personal regrets likewise citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos.
169659, 169660, and 169667, for certiorari and prohibition,
were filed before this Court challenging the constitutionality of
E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of
Representatives Members Satur Ocampo, Crispin Beltran, Rafael
Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage,
an organization of government employees, and Counsels for the
Defense of Liberties (CODAL), a group of lawyers dedicated to
the promotion of justice, democracy and peace, all claiming to
have standing to file the suit because of the transcendental
importance of the issues they posed, pray, in their petition that
E.O. 464 be declared null and void for being unconstitutional;
that respondent Executive Secretary Ermita, in his capacity as
Executive Secretary and alter-ego of President Arroyo, be
prohibited from imposing, and threatening to impose sanctions
on officials who appear before Congress due to congressional
summons. Additionally, petitioners claim that E.O. 464 infringes
on their rights and impedes them from fulfilling their respective
obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on
its right as a political party entitled to participate in governance;
Satur Ocampo, et al. allege that E.O. 464 infringes on their rights
and duties as members of Congress to conduct investigation in
aid of legislation and conduct oversight functions in the
implementation of laws; Courage alleges that the tenure of its
members in public office is predicated on, and threatened by,
their submission to the requirements of E.O. 464 should they be
summoned by Congress; and CODAL alleges that its members
have a sworn duty to uphold the rule of law, and their rights to
information and to transparent governance are threatened by
the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that
his constitutional rights as a citizen, taxpayer and law
practitioner, are affected by the enforcement of E.O. 464, prays
in his petition that E.O. 464 be declared null and void for being
unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups,
Inc.12 (ALG), alleging that as a coalition of 17 legal resource non-
governmental organizations engaged in developmental
lawyering and work with the poor and marginalized sectors in
different parts of the country, and as an organization of citizens
of the Philippines and a part of the general public, it has legal
standing to institute the petition to enforce its constitutional
right to information on matters of public concern, a right which
was denied to the public by E.O. 464,13 prays, that said order be
declared null and void for being unconstitutional and that
respondent Executive Secretary Ermita be ordered to cease
from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines,
alleging that it has a vital interest in the resolution of the issue
of the validity of E.O. 464 for it stands to suffer imminent and
material injury, as it has already sustained the same with its
continued enforcement since it directly interferes with and
impedes the valid exercise of the Senate’s powers and functions
and conceals information of great public interest and concern,
filed its petition for certiorari and prohibition, docketed as G.R.
No. 169777 and prays that E.O. 464 be declared
unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party
with members duly elected into the Philippine Senate and
House of Representatives, filed a similar petition for certiorari
and prohibition, docketed as G.R. No. 169834, alleging that it is
affected by the challenged E.O. 464 because it hampers its
legislative agenda to be implemented through its members in
Congress, particularly in the conduct of inquiries in aid of
legislation and transcendental issues need to be resolved to
avert a constitutional crisis between the executive and
legislative branches of the government.
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon
reiterated his invitation to Gen. Senga for him and other military
officers to attend the hearing on the alleged wiretapping
scheduled on February 10, 2005. Gen. Senga replied, however,
by letter15 dated February 8, 2006, that "[p]ursuant to Executive
Order No. 464, th[e] Headquarters requested for a clearance
from the President to allow [them] to appear before the public
hearing" and that "they will attend once [their] request is
approved by the President." As none of those invited appeared,
the hearing on February 10, 2006 was cancelled.16
In another investigation conducted jointly by the Senate
Committee on Agriculture and Food and the Blue Ribbon
Committee on the alleged mismanagement and use of the
fertilizer fund under the Ginintuang Masaganang Ani program of
the Department of Agriculture (DA), several Cabinet officials
were invited to the hearings scheduled on October 5 and 26,
November 24 and December 12, 2005 but most of them failed
to attend, DA Undersecretary Belinda Gonzales, DA Assistant
Secretary Felix Jose Montes, Fertilizer and Pesticide Authority
Executive Director Norlito R. Gicana,17 and those from the
Department of Budget and Management18 having invoked E.O.
464.
In the budget hearings set by the Senate on February 8 and 13,
2006, Press Secretary and Presidential Spokesperson Ignacio R.
Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department of
Interior and Local Government Undersecretary Marius P.
Corpus21 communicated their inability to attend due to lack of
appropriate clearance from the President pursuant to E.O. 464.
During the February 13, 2005 budget hearing, however,
Secretary Bunye was allowed to attend by Executive Secretary
Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent
members of the Board of Governors of the Integrated Bar of the
Philippines, as taxpayers, and the Integrated Bar of the
Philippines as the official organization of all Philippine lawyers,
all invoking their constitutional right to be informed on matters
of public interest, filed their petition for certiorari and
prohibition, docketed as G.R. No. 171246, and pray that E.O.
464 be declared null and void.
All the petitions pray for the issuance of a Temporary
Restraining Order enjoining respondents from implementing,
enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on February
21, 2006, the following substantive issues were ventilated: (1)
whether respondents committed grave abuse of discretion in
implementing E.O. 464 prior to its publication in the Official
Gazette or in a newspaper of general circulation; and (2)
whether E.O. 464 violates the following provisions of the
Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV.
Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art.
XIII, Sec. 16. The procedural issue of whether there is an actual
case or controversy that calls for judicial review was not taken
up; instead, the parties were instructed to discuss it in their
respective memoranda.
After the conclusion of the oral arguments, the parties were
directed to submit their respective memoranda, paying
particular attention to the following propositions: (1) that E.O.
464 is, on its face, unconstitutional; and (2) assuming that it is
not, it is unconstitutional as applied in four instances, namely:
(a) the so called Fertilizer scam; (b) the NorthRail investigation
(c) the Wiretapping activity of the ISAFP; and (d) the
investigation on the Venable contract.22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed
their memoranda on March 7, 2006, while those in G.R. No.
16966725 and G.R. No. 16983426 filed theirs the next day or on
March 8, 2006. Petitioners in G.R. No. 171246 did not file any
memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their
motion for extension to file memorandum27 was granted,
subsequently filed a manifestation28 dated March 14, 2006 that
it would no longer file its memorandum in the interest of having
the issues resolved soonest, prompting this Court to issue a
Resolution reprimanding them.29
Petitioners submit that E.O. 464 violates the following
constitutional provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other
hand, pray in their consolidated memorandum38 on March 13,
2006 for the dismissal of the petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry
vested in Congress;
2. Whether E.O. 464 violates the right of the people to
information on matters of public concern; and
3. Whether respondents have committed grave abuse
of discretion when they implemented E.O. 464 prior to
its publication in a newspaper of general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of
E.O. 464, ascertainment of whether the requisites for a valid
exercise of the Court’s power of judicial review are present is in
order.
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
standing to challenge 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.39
Except with respect to the requisites of standing and existence
of an actual case or controversy where the disagreement
between the parties lies, discussion of the rest of the requisites
shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the
allegations in G.R. Nos. 169659, 169660 and 169667 make it
clear that they, adverting to the non-appearance of several
officials of the executive department in the investigations called
by the different committees of the Senate, were brought to
vindicate the constitutional duty of the Senate or its different
committees to conduct inquiry in aid of legislation or in the
exercise of its oversight functions. They maintain that
Representatives Ocampo et al. have not shown any specific
prerogative, power, and privilege of the House of
Representatives which had been effectively impaired by E.O.
464, there being no mention of any investigation called by the
House of Representatives or any of its committees which was
aborted due to the implementation of E.O. 464.
As for Bayan Muna’s alleged interest as a party-list representing
the marginalized and underrepresented, and that of the other
petitioner groups and individuals who profess to have standing
as advocates and defenders of the Constitution, respondents
contend that such interest falls short of that required to confer
standing on them as parties "injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez
may not claim an interest as a taxpayer for the implementation
of E.O. 464 does not involve the exercise of taxing or spending
power.41
With regard to the petition filed by the Senate, respondents
argue that in the absence of a personal or direct injury by
reason of the issuance of E.O. 464, the Senate and its individual
members are not the proper parties to assail the
constitutionality of E.O. 464.
Invoking this Court’s ruling in National Economic Protectionism
Association v. Ongpin42 and Valmonte v. Philippine Charity
Sweepstakes Office,43 respondents assert that to be considered
a proper party, one must have a personal and substantial
interest in the case, such that he has sustained or will sustain
direct injury due to the enforcement of E.O. 464.44
That the Senate of the Philippines has a fundamental right
essential not only for intelligent public decision-making in a
democratic system, but more especially for sound legislation45 is
not disputed. E.O. 464, however, allegedly stifles the ability of
the members of Congress to access information that is crucial to
law-making.46 Verily, the Senate, including its individual
members, has a substantial and direct interest over the
outcome of the controversy and is the proper party to assail the
constitutionality of E.O. 464. Indeed, legislators have standing
to maintain inviolate the prerogative, powers and privileges
vested by the Constitution in their office and are allowed to sue
to question the validity of any official action which they claim
infringes their prerogatives as legislators.47
In the same vein, party-list representatives Satur Ocampo
(Bayan Muna), Teodoro Casino (Bayan Muna), Joel Virador
(Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano
(Anakpawis), and Liza Maza (Gabriela) are allowed to sue to
question the constitutionality of E.O. 464, the absence of any
claim that an investigation called by the House of
Representatives or any of its committees was aborted due to
the implementation of E.O. 464 notwithstanding, it being
sufficient that a claim is made that E.O. 464 infringes on their
constitutional rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight
functions in the implementation of laws.
The national political party, Bayan Muna, likewise meets the
standing requirement as it obtained three seats in the House of
Representatives in the 2004 elections and is, therefore, entitled
to participate in the legislative process consonant with the
declared policy underlying the party list system of affording
citizens belonging to marginalized and underrepresented
sectors, organizations and parties who lack well-defined
political constituencies to contribute to the formulation and
enactment of legislation that will benefit the nation.48
As Bayan Muna and Representatives Ocampo et al. have the
standing to file their petitions, passing on the standing of their
co-petitioners Courage and Codal is rendered unnecessary.49
In filing their respective petitions, Chavez, the ALG which claims
to be an organization of citizens, and the incumbent members
of the IBP Board of Governors and the IBP in behalf of its lawyer
members,50 invoke their constitutional right to information on
matters of public concern, asserting that the right to
information, curtailed and violated by E.O. 464, is essential to
the effective exercise of other constitutional rights51 and to the
maintenance of the balance of power among the three
branches of the government through the principle of checks and
balances.52
It is well-settled that when suing as a citizen, the interest of the
petitioner in assailing the constitutionality of laws, presidential
decrees, orders, and other regulations, must be direct and
personal. In Franciso v. House of Representatives,53 this Court
held that when the proceeding involves the assertion of a public
right, the mere fact that he is a citizen satisfies the requirement
of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with
legal standing in view of the transcendental issues raised in its
petition which this Court needs to resolve in order to avert a
constitutional crisis. For it to be accorded standing on the
ground of transcendental importance, however, it must
establish (1) the character of the funds (that it is public) or other
assets involved in the case, (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the
public respondent agency or instrumentality of the government,
and (3) the lack of any party with a more direct and specific
interest in raising the questions being raised.54 The first and last
determinants not being present as no public funds or assets are
involved and petitioners in G.R. Nos. 169777 and 169659 have
direct and specific interests in the resolution of the controversy,
petitioner PDP-Laban is bereft of standing to file its petition. Its
allegation that E.O. 464 hampers its legislative agenda is vague
and uncertain, and at best is only a "generalized interest" which
it shares with the rest of the political parties. Concrete injury,
whether actual or threatened, is that indispensable element of
a dispute which serves in part to cast it in a form traditionally
capable of judicial resolution.55 In fine, PDP-Laban’s alleged
interest as a political party does not suffice to clothe it with
legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the
absence of the executive officials invited by the Senate to its
hearings after the issuance of E.O. 464, particularly those on the
NorthRail project and the wiretapping controversy.
Respondents counter that there is no case or controversy, there
being no showing that President Arroyo has actually withheld
her consent or prohibited the appearance of the invited
officials.56 These officials, they claim, merely communicated to
the Senate that they have not yet secured the consent of the
President, not that the President prohibited their
attendance.57 Specifically with regard to the AFP officers who
did not attend the hearing on September 28, 2005, respondents
claim that the instruction not to attend without the President’s
consent was based on its role as Commander-in-Chief of the
Armed Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an
unfounded apprehension that the President will abuse its power
of preventing the appearance of officials before Congress, and
that such apprehension is not sufficient for challenging the
validity of E.O. 464.
The Court finds respondents’ assertion that the President has
not withheld her consent or prohibited the appearance of the
officials concerned immaterial in determining the existence of
an actual case or controversy insofar as E.O. 464 is concerned.
For E.O. 464 does not require either a deliberate withholding of
consent or an express prohibition issuing from the President in
order to bar officials from appearing before Congress.
As the implementation of the challenged order has already
resulted in the absence of officials invited to the hearings of
petitioner Senate of the Philippines, it would make no sense to
wait for any further event before considering the present case
ripe for adjudication. Indeed, it would be sheer abandonment of
duty if this Court would now refrain from passing on the
constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive
officials before Congress, deprives Congress of the information
in the possession of these officials. To resolve the question of
whether such withholding of information violates the
Constitution, consideration of the general power of Congress to
obtain information, otherwise known as the power of inquiry, is
in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section
21 of Article VI of the Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any
of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by
such inquiries shall be respected. (Underscoring supplied)
This provision is worded exactly as Section 8 of Article VIII of the
1973 Constitution except that, in the latter, it vests the power
of inquiry in the unicameral legislature established therein – the
Batasang Pambansa – and its committees.
The 1935 Constitution did not contain a similar provision.
Nonetheless, in Arnault v. Nazareno,58 a case decided in 1950
under that Constitution, the Court already recognized that the
power of inquiry is inherent in the power to legislate.
Arnault involved a Senate investigation of the reportedly
anomalous purchase of the Buenavista and Tambobong Estates
by the Rural Progress Administration. Arnault, who was
considered a leading witness in the controversy, was called to
testify thereon by the Senate. On account of his refusal to
answer the questions of the senators on an important point, he
was, by resolution of the Senate, detained for contempt.
Upholding the Senate’s power to punish Arnault for contempt,
this Court held:
Although there is no provision in the Constitution expressly
investing either House of Congress with power to make
investigations and exact testimony to the end that it may
exercise its legislative functions advisedly and effectively, such
power is so far incidental to the legislative function as to be
implied. In other words, the power of inquiry – with process to
enforce it – is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change;
and where the legislative body does not itself possess the
requisite information – which is not infrequently true – recourse
must be had to others who do possess it. Experience has shown
that mere requests for such information are often unavailing,
and also that information which is volunteered is not always
accurate or complete; so some means of compulsion is essential
to obtain what is needed.59 . . . (Emphasis and underscoring
supplied)
That this power of inquiry is broad enough to cover officials of
the executive branch may be deduced from the same case. The
power of inquiry, the Court therein ruled, is co-extensive with
the power to legislate.60 The matters which may be a proper
subject of legislation and those which may be a proper subject
of investigation are one. It follows that the operation of
government, being a legitimate subject for legislation, is a
proper subject for investigation.
Thus, the Court found that the Senate investigation of the
government transaction involved in Arnault was a proper
exercise of the power of inquiry. Besides being related to the
expenditure of public funds of which Congress is the guardian,
the transaction, the Court held, "also involved government
agencies created by Congress and officers whose positions it is
within the power of Congress to regulate or even abolish."
Since Congress has authority to inquire into the operations of
the executive branch, it would be incongruous to hold that the
power of inquiry does not extend to executive officials who are
the most familiar with and informed on executive operations.
As discussed in Arnault, the power of inquiry, "with process to
enforce it," is grounded on the necessity of information in the
legislative process. If the information possessed by executive
officials on the operation of their offices is necessary for wise
legislation on that subject, by parity of reasoning, Congress has
the right to that information and the power to compel the
disclosure thereof.
As evidenced by the American experience during the so-called
"McCarthy era," however, the right of Congress to conduct
inquiries in aid of legislation is, in theory, no less susceptible to
abuse than executive or judicial power. It may thus be subjected
to judicial review pursuant to the Court’s certiorari powers
under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon
Committee,61 the inquiry itself might not properly be in aid of
legislation, and thus beyond the constitutional power of
Congress. Such inquiry could not usurp judicial functions.
Parenthetically, one possible way for Congress to avoid such a
result as occurred in Bengzon is to indicate in its invitations to
the public officials concerned, or to any person for that matter,
the possible needed statute which prompted the need for the
inquiry. Given such statement in its invitations, along with the
usual indication of the subject of inquiry and the questions
relative to and in furtherance thereof, there would be less room
for speculation on the part of the person invited on whether the
inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that
proscribe the legislative power of inquiry. The provision
requires that the inquiry be done in accordance with the Senate
or House’s duly published rules of procedure, necessarily
implying the constitutional infirmity of an inquiry conducted
without duly published rules of procedure. Section 21 also
mandates that the rights of persons appearing in or affected by
such inquiries be respected, an imposition that obligates
Congress to adhere to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts,
upon the proper suit filed by the persons affected, even if they
belong to the executive branch. Nonetheless, there may be
exceptional circumstances, none appearing to obtain at present,
wherein a clear pattern of abuse of the legislative power of
inquiry might be established, resulting in palpable violations of
the rights guaranteed to members of the executive department
under the Bill of Rights. In such instances, depending on the
particulars of each case, attempts by the Executive Branch to
forestall these abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still
recognized exemptions to the power of inquiry, which
exemptions fall under the rubric of "executive privilege." Since
this term figures prominently in the challenged order, it being
mentioned in its provisions, its preambular clauses,62 and in its
very title, a discussion of executive privilege is crucial for
determining the constitutionality of E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It
has been used even prior to the promulgation of the 1986
Constitution.63 Being of American origin, it is best understood in
light of how it has been defined and used in the legal literature
of the United States.
Schwartz defines executive privilege as "the power of the
Government to withhold information from the public, the
courts, and the Congress."64 Similarly, Rozell defines it as "the
right of the President and high-level executive branch officers to
withhold information from Congress, the courts, and ultimately
the public."65
Executive privilege is, nonetheless, not a clear or unitary
concept. 66 It has encompassed claims of varying kinds.67 Tribe,
in fact, comments that while it is customary to employ the
phrase "executive privilege," it may be more accurate to speak
of executive privileges "since presidential refusals to furnish
information may be actuated by any of at least three distinct
kinds of considerations, and may be asserted, with differing
degrees of success, in the context of either judicial or legislative
investigations."
One variety of the privilege, Tribe explains, is the state secrets
privilege invoked by U.S. Presidents, beginning with
Washington, on the ground that the information is of such
nature that its disclosure would subvert crucial military or
diplomatic objectives. Another variety is the informer’s
privilege, or the privilege of the Government not to disclose the
identity of persons who furnish information of violations of law
to officers charged with the enforcement of that law. Finally, a
generic privilege for internal deliberations has been said to
attach to intragovernmental documents reflecting advisory
opinions, recommendations and deliberations comprising part
of a process by which governmental decisions and policies are
formulated. 68
Tribe’s comment is supported by the ruling in In re Sealed Case,
thus:
Since the beginnings of our nation, executive officials have
claimed a variety of privileges to resist disclosure of information
the confidentiality of which they felt was crucial to fulfillment of
the unique role and responsibilities of the executive branch of
our government. Courts ruled early that the executive had a
right to withhold documents that might reveal military or state
secrets. The courts have also granted the executive a right to
withhold the identity of government informers in some
circumstances and a qualified right to withhold information
related to pending investigations. x x x"69 (Emphasis and
underscoring supplied)
The entry in Black’s Law Dictionary on "executive privilege" is
similarly instructive regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of
separation of powers, exempts the executive from disclosure
requirements applicable to the ordinary citizen or organization
where such exemption is necessary to the discharge of highly
important executive responsibilities involved in maintaining
governmental operations, and extends not only to military and
diplomatic secrets but also to documents integral to an
appropriate exercise of the executive’ domestic decisional and
policy making functions, that is, those documents reflecting the
frank expression necessary in intra-governmental advisory and
deliberative communications.70 (Emphasis and underscoring
supplied)
That a type of information is recognized as privileged does not,
however, necessarily mean that it would be considered
privileged in all instances. For in determining the validity of a
claim of privilege, the question that must be asked is not only
whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be
honored in a given procedural setting.71
The leading case on executive privilege in the United States is
U.S. v. Nixon, 72 decided in 1974. In issue in that case was the
validity of President Nixon’s claim of executive privilege against
a subpoena issued by a district court requiring the production of
certain tapes and documents relating to the Watergate
investigations. The claim of privilege was based on the
President’s general interest in the confidentiality of his
conversations and correspondence. The U.S. Court held that
while there is no explicit reference to a privilege of
confidentiality in the U.S. Constitution, it is constitutionally
based to the extent that it relates to the effective discharge of a
President’s powers. The Court, nonetheless, rejected the
President’s claim of privilege, ruling that the privilege must be
balanced against the public interest in the fair administration of
criminal justice. Notably, the Court was careful to clarify that it
was not there addressing the issue of claims of privilege in a civil
litigation or against congressional demands for information.
Cases in the U.S. which involve claims of executive privilege
against Congress are rare.73 Despite frequent assertion of the
privilege to deny information to Congress, beginning with
President Washington’s refusal to turn over treaty negotiation
records to the House of Representatives, the U.S. Supreme
Court has never adjudicated the issue.74 However, the U.S.
Court of Appeals for the District of Columbia Circuit, in a case
decided earlier in the same year as Nixon, recognized the
President’s privilege over his conversations against a
congressional subpoena.75 Anticipating the balancing approach
adopted by the U.S. Supreme Court in Nixon, the Court of
Appeals weighed the public interest protected by the claim of
privilege against the interest that would be served by disclosure
to the Committee. Ruling that the balance favored the
President, the Court declined to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was
recognized by this Court in Almonte v. Vasquez.77 Almonte used
the term in reference to the same privilege subject of Nixon. It
quoted the following portion of the Nixon decision which
explains the basis for the privilege:
"The expectation of a President to the confidentiality of his
conversations and correspondences, like the claim of
confidentiality of judicial deliberations, for example, has all the
values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for
protection of the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decision-making. A
President and those who assist him must be free to explore
alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to
express except privately. These are the considerations justifying
a presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the
Constitution x x x " (Emphasis and underscoring supplied)
Almonte involved a subpoena duces tecum issued by the
Ombudsman against the therein petitioners. It did not involve,
as expressly stated in the decision, the right of the people to
information.78 Nonetheless, the Court recognized that there are
certain types of information which the government may
withhold from the public, thus acknowledging, in substance if
not in name, that executive privilege may be claimed against
citizens’ demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction
recognizes the common law holding that there is a
"governmental privilege against public disclosure with respect
to state secrets regarding military, diplomatic and other
national security matters."80 The same case held that closed-
door Cabinet meetings are also a recognized limitation on the
right to information.
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled
that the right to information does not extend to matters
recognized as "privileged information under the separation of
powers,"82 by which the Court meant Presidential
conversations, correspondences, and discussions in closed-door
Cabinet meetings. It also held that information on military and
diplomatic secrets and those affecting national security, and
information on investigations of crimes by law enforcement
agencies before the prosecution of the accused were exempted
from the right to information.
From the above discussion on the meaning and scope of
executive privilege, both in the United States and in this
jurisdiction, a clear principle emerges. Executive privilege,
whether asserted against Congress, the courts, or the public, is
recognized only in relation to certain types of information of a
sensitive character. While executive privilege is a constitutional
concept, a claim thereof may be valid or not depending on the
ground invoked to justify it and the context in which it is made.
Noticeably absent is any recognition that executive officials are
exempt from the duty to disclose information by the mere fact
of being executive officials. Indeed, the extraordinary character
of the exemptions indicates that the presumption inclines
heavily against executive secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials
covered by them to secure the consent of the President prior to
appearing before Congress. There are significant differences
between the two provisions, however, which constrain this
Court to discuss the validity of these provisions separately.
Section 1 specifically applies to department heads. It does not,
unlike Section 3, require a prior determination by any official
whether they are covered by E.O. 464. The President herself
has, through the challenged order, made the determination that
they are. Further, unlike also Section 3, the coverage of
department heads under Section 1 is not made to depend on
the department heads’ possession of any information which
might be covered by executive privilege. In fact, in marked
contrast to Section 3 vis-à-vis Section 2, there is no reference to
executive privilege at all. Rather, the required prior consent
under Section 1 is grounded on Article VI, Section 22 of the
Constitution on what has been referred to as the question hour.
SECTION 22. The heads of departments may upon their own
initiative, with the consent of the President, or upon the
request of either House, as the rules of each House shall
provide, appear before and be heard by such House on any
matter pertaining to their departments. Written questions shall
be submitted to the President of the Senate or the Speaker of
the House of Representatives at least three days before their
scheduled appearance. Interpellations shall not be limited to
written questions, but may cover matters related thereto.
When the security of the State or the public interest so requires
and the President so states in writing, the appearance shall be
conducted in executive session.
Determining the validity of Section 1 thus requires an
examination of the meaning of Section 22 of Article VI. Section
22 which provides for the question hour must be interpreted
vis-à-vis Section 21 which provides for the power of either
House of Congress to "conduct inquiries in aid of legislation." As
the following excerpt of the deliberations of the Constitutional
Commission shows, the framers were aware that these two
provisions involved distinct functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now
Section 22 on the Question Hour] yesterday, I noticed that
members of the Cabinet cannot be compelled anymore to
appear before the House of Representatives or before the
Senate. I have a particular problem in this regard, Madam
President, because in our experience in the Regular Batasang
Pambansa – as the Gentleman himself has experienced in the
interim Batasang Pambansa – one of the most competent
inputs that we can put in our committee deliberations, either in
aid of legislation or in congressional investigations, is the
testimonies of Cabinet ministers. We usually invite them, but if
they do not come and it is a congressional investigation, we
usually issue subpoenas.
I want to be clarified on a statement made by Commissioner
Suarez when he said that the fact that the Cabinet ministers
may refuse to come to the House of Representatives or the
Senate [when requested under Section 22] does not mean that
they need not come when they are invited or subpoenaed by
the committee of either House when it comes to inquiries in aid
of legislation or congressional investigation. According to
Commissioner Suarez, that is allowed and their presence can be
had under Section 21. Does the gentleman confirm this, Madam
President?
MR. DAVIDE. We confirm that, Madam President, because
Section 20 refers only to what was originally the Question Hour,
whereas, Section 21 would refer specifically to inquiries in aid of
legislation, under which anybody for that matter, may be
summoned and if he refuses, he can be held in contempt of the
House.83 (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of
legislation and the question hour. While attendance was meant
to be discretionary in the question hour, it was compulsory in
inquiries in aid of legislation. The reference to Commissioner
Suarez bears noting, he being one of the proponents of the
amendment to make the appearance of department heads
discretionary in the question hour.
So clearly was this distinction conveyed to the members of the
Commission that the Committee on Style, precisely in
recognition of this distinction, later moved the provision on
question hour from its original position as Section 20 in the
original draft down to Section 31, far from the provision on
inquiries in aid of legislation. This gave rise to the following
exchange during the deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the
Committee on Style] We now go, Mr. Presiding Officer, to the
Article on Legislative and may I request the chairperson of the
Legislative Department, Commissioner Davide, to give his
reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is
recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one
reaction to the Question Hour. I propose that instead of putting
it as Section 31, it should follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr.
Presiding Officer.
MR. MAAMBONG. Actually, we considered that previously when
we sequenced this but we reasoned that in Section 21, which is
Legislative Inquiry, it is actually a power of Congress in terms of
its own lawmaking; whereas, a Question Hour is not actually a
power in terms of its own lawmaking power because in
Legislative Inquiry, it is in aid of legislation. And so we put
Question Hour as Section 31. I hope Commissioner Davide will
consider this.
MR. DAVIDE. The Question Hour is closely related with the
legislative power, and it is precisely as a complement to or a
supplement of the Legislative Inquiry. The appearance of the
members of Cabinet would be very, very essential not only in
the application of check and balance but also, in effect, in aid of
legislation.
MR. MAAMBONG. After conferring with the committee, we find
merit in the suggestion of Commissioner Davide. In other words,
we are accepting that and so this Section 31 would now become
Section 22. Would it be, Commissioner Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
Consistent with their statements earlier in the deliberations,
Commissioners Davide and Maambong proceeded from the
same assumption that these provisions pertained to two
different functions of the legislature. Both Commissioners
understood that the power to conduct inquiries in aid of
legislation is different from the power to conduct inquiries
during the question hour. Commissioner Davide’s only concern
was that the two provisions on these distinct powers be placed
closely together, they being complementary to each other.
Neither Commissioner considered them as identical functions of
Congress.
The foregoing opinion was not the two Commissioners’ alone.
From the above-quoted exchange, Commissioner Maambong’s
committee – the Committee on Style – shared the view that the
two provisions reflected distinct functions of Congress.
Commissioner Davide, on the other hand, was speaking in his
capacity as Chairman of the Committee on the Legislative
Department. His views may thus be presumed as representing
that of his Committee.
In the context of a parliamentary system of government, the
"question hour" has a definite meaning. It is a period of
confrontation initiated by Parliament to hold the Prime Minister
and the other ministers accountable for their acts and the
operation of the government,85 corresponding to what is known
in Britain as the question period. There was a specific provision
for a question hour in the 1973 Constitution86 which made the
appearance of ministers mandatory. The same perfectly
conformed to the parliamentary system established by that
Constitution, where the ministers are also members of the
legislature and are directly accountable to it.
An essential feature of the parliamentary system of government
is the immediate accountability of the Prime Minister and the
Cabinet to the National Assembly. They shall be responsible to
the National Assembly for the program of government and shall
determine the guidelines of national policy. Unlike in the
presidential system where the tenure of office of all elected
officials cannot be terminated before their term expired, the
Prime Minister and the Cabinet remain in office only as long as
they enjoy the confidence of the National Assembly. The
moment this confidence is lost the Prime Minister and the
Cabinet may be changed.87
The framers of the 1987 Constitution removed the mandatory
nature of such appearance during the question hour in the
present Constitution so as to conform more fully to a system of
separation of powers.88 To that extent, the question hour, as it
is presently understood in this jurisdiction, departs from the
question period of the parliamentary system. That department
heads may not be required to appear in a question hour does
not, however, mean that the legislature is rendered powerless
to elicit information from them in all circumstances. In fact, in
light of the absence of a mandatory question period, the need
to enforce Congress’ right to executive information in the
performance of its legislative function becomes more
imperative. As Schwartz observes:
Indeed, if the separation of powers has anything to tell us on
the subject under discussion, it is that the Congress has the right
to obtain information from any source – even from officials of
departments and agencies in the executive branch. In the
United States there is, unlike the situation which prevails in a
parliamentary system such as that in Britain, a clear separation
between the legislative and executive branches. It is this very
separation that makes the congressional right to obtain
information from the executive so essential, if the functions of
the Congress as the elected representatives of the people are
adequately to be carried out. The absence of close rapport
between the legislative and executive branches in this country,
comparable to those which exist under a parliamentary system,
and the nonexistence in the Congress of an institution such as
the British question period have perforce made reliance by the
Congress upon its right to obtain information from the
executive essential, if it is intelligently to perform its legislative
tasks. Unless the Congress possesses the right to obtain
executive information, its power of oversight of administration
in a system such as ours becomes a power devoid of most of its
practical content, since it depends for its effectiveness solely
upon information parceled out ex gratia by the
executive.89 (Emphasis and underscoring supplied)
Sections 21 and 22, therefore, while closely related and
complementary to each other, should not be considered as
pertaining to the same power of Congress. One specifically
relates to the power to conduct inquiries in aid of legislation,
the aim of which is to elicit information that may be used for
legislation, while the other pertains to the power to conduct a
question hour, the objective of which is to obtain information in
pursuit of Congress’ oversight function.
When Congress merely seeks to be informed on how
department heads are implementing the statutes which it has
issued, its right to such information is not as imperative as that
of the President to whom, as Chief Executive, such department
heads must give a report of their performance as a matter of
duty. In such instances, Section 22, in keeping with the
separation of powers, states that Congress may only request
their appearance. Nonetheless, when the inquiry in which
Congress requires their appearance is "in aid of legislation"
under Section 21, the appearance is mandatory for the same
reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by
compulsory process only to the extent that it is performed in
pursuit of legislation. This is consistent with the intent discerned
from the deliberations of the Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of
executive officials under Section 21 and the lack of it under
Section 22 find their basis in the principle of separation of
powers. While the executive branch is a co-equal branch of the
legislature, it cannot frustrate the power of Congress to legislate
by refusing to comply with its demands for information.
When Congress exercises its power of inquiry, the only way for
department heads to exempt themselves therefrom is by a valid
claim of privilege. They are not exempt by the mere fact that
they are department heads. Only one executive official may be
exempted from this power — the President on whom executive
power is vested, hence, beyond the reach of Congress except
through the power of impeachment. It is based on her being the
highest official of the executive branch, and the due respect
accorded to a co-equal branch of government which is
sanctioned by a long-standing custom.
By the same token, members of the Supreme Court are also
exempt from this power of inquiry. Unlike the Presidency,
judicial power is vested in a collegial body; hence, each member
thereof is exempt on the basis not only of separation of powers
but also on the fiscal autonomy and the constitutional
independence of the judiciary. This point is not in dispute, as
even counsel for the Senate, Sen. Joker Arroyo, admitted it
during the oral argument upon interpellation of the Chief
Justice.
Having established the proper interpretation of Section 22,
Article VI of the Constitution, the Court now proceeds to pass
on the constitutionality of Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of
Article VI of the Constitution and the absence of any reference
to inquiries in aid of legislation, must be construed as limited in
its application to appearances of department heads in the
question hour contemplated in the provision of said Section 22
of Article VI. The reading is dictated by the basic rule of
construction that issuances must be interpreted, as much as
possible, in a way that will render it constitutional.
The requirement then to secure presidential consent under
Section 1, limited as it is only to appearances in the question
hour, is valid on its face. For under Section 22, Article VI of the
Constitution, the appearance of department heads in the
question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of
department heads in inquiries in aid of legislation. Congress is
not bound in such instances to respect the refusal of the
department head to appear in such inquiry, unless a valid claim
of privilege is subsequently made, either by the President
herself or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated
in Section 2(b) to secure the consent of the President prior to
appearing before either house of Congress. The enumeration is
broad. It covers all senior officials of executive departments, all
officers of the AFP and the PNP, and all senior national security
officials who, in the judgment of the heads of offices designated
in the same section (i.e. department heads, Chief of Staff of the
AFP, Chief of the PNP, and the National Security Adviser), are
"covered by the executive privilege."
The enumeration also includes such other officers as may be
determined by the President. Given the title of Section 2 —
"Nature, Scope and Coverage of Executive Privilege" —, it is
evident that under the rule of ejusdem generis, the
determination by the President under this provision is intended
to be based on a similar finding of coverage under executive
privilege.
En passant, the Court notes that Section 2(b) of E.O. 464
virtually states that executive privilege actually covers persons.
Such is a misuse of the doctrine. Executive privilege, as
discussed above, is properly invoked in relation to specific
categories of information and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the
nature, scope and coverage of executive privilege, the reference
to persons being "covered by the executive privilege" may be
read as an abbreviated way of saying that the person is in
possession of information which is, in the judgment of the head
of office concerned, privileged as defined in Section 2(a). The
Court shall thus proceed on the assumption that this is the
intention of the challenged order.
Upon a determination by the designated head of office or by
the President that an official is "covered by the executive
privilege," such official is subjected to the requirement that he
first secure the consent of the President prior to appearing
before Congress. This requirement effectively bars the
appearance of the official concerned unless the same is
permitted by the President. The proviso allowing the President
to give its consent means nothing more than that the President
may reverse a prohibition which already exists by virtue of E.O.
464.
Thus, underlying this requirement of prior consent is the
determination by a head of office, authorized by the President
under E.O. 464, or by the President herself, that such official is
in possession of information that is covered by executive
privilege. This determination then becomes the basis for the
official’s not showing up in the legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify
his failure to be present, such invocation must be construed as a
declaration to Congress that the President, or a head of office
authorized by the President, has determined that the requested
information is privileged, and that the President has not
reversed such determination. Such declaration, however, even
without mentioning the term "executive privilege," amounts to
an implied claim that the information is being withheld by the
executive branch, by authority of the President, on the basis of
executive privilege. Verily, there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive
Secretary Ermita to Senate President Drilon illustrates the
implied nature of the claim of privilege authorized by E.O. 464.
It reads:
In connection with the inquiry to be conducted by the
Committee of the Whole regarding the Northrail Project of the
North Luzon Railways Corporation on 29 September 2005 at
10:00 a.m., please be informed that officials of the Executive
Department invited to appear at the meeting will not be able to
attend the same without the consent of the President, pursuant
to Executive Order No. 464 (s. 2005), entitled "Ensuring
Observance Of The Principle Of Separation Of Powers,
Adherence To The Rule On Executive Privilege And Respect For
The Rights Of Public Officials Appearing In Legislative Inquiries
In Aid Of Legislation Under The Constitution, And For Other
Purposes". Said officials have not secured the required consent
from the President. (Underscoring supplied)
The letter does not explicitly invoke executive privilege or that
the matter on which these officials are being requested to be
resource persons falls under the recognized grounds of the
privilege to justify their absence. Nor does it expressly state that
in view of the lack of consent from the President under E.O.
464, they cannot attend the hearing.
Significant premises in this letter, however, are left unstated,
deliberately or not. The letter assumes that the invited officials
are covered by E.O. 464. As explained earlier, however, to be
covered by the order means that a determination has been
made, by the designated head of office or the President, that
the invited official possesses information that is covered by
executive privilege. Thus, although it is not stated in the letter
that such determination has been made, the same must be
deemed implied. Respecting the statement that the invited
officials have not secured the consent of the President, it only
means that the President has not reversed the standing
prohibition against their appearance before Congress.
Inevitably, Executive Secretary Ermita’s letter leads to the
conclusion that the executive branch, either through the
President or the heads of offices authorized under E.O. 464, has
made a determination that the information required by the
Senate is privileged, and that, at the time of writing, there has
been no contrary pronouncement from the President. In fine,
an implied claim of privilege has been made by the executive.
While there is no Philippine case that directly addresses the
issue of whether executive privilege may be invoked against
Congress, it is gathered from Chavez v. PEA that certain
information in the possession of the executive may validly be
claimed as privileged even against Congress. Thus, the case
holds:
There is no claim by PEA that the information demanded by
petitioner is privileged information rooted in the separation of
powers. The information does not cover Presidential
conversations, correspondences, or discussions during closed-
door Cabinet meetings which, like internal-deliberations of the
Supreme Court and other collegiate courts, or executive
sessions of either house of Congress, are recognized as
confidential. This kind of information cannot be pried open by a
co-equal branch of government. A frank exchange of
exploratory ideas and assessments, free from the glare of
publicity and pressure by interested parties, is essential to
protect the independence of decision-making of those tasked to
exercise Presidential, Legislative and Judicial power. This is not
the situation in the instant case.91 (Emphasis and underscoring
supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as
invalid by the mere fact that it sanctions claims of executive
privilege. This Court must look further and assess the claim of
privilege authorized by the Order to determine whether it is
valid.
While the validity of claims of privilege must be assessed on a
case to case basis, examining the ground invoked therefor and
the particular circumstances surrounding it, there is, in an
implied claim of privilege, a defect that renders it invalid per se.
By its very nature, and as demonstrated by the letter of
respondent Executive Secretary quoted above, the implied
claim authorized by Section 3 of E.O. 464 is not accompanied by
any specific allegation of the basis thereof (e.g., whether the
information demanded involves military or diplomatic secrets,
closed-door Cabinet meetings, etc.). While Section 2(a)
enumerates the types of information that are covered by the
privilege under the challenged order, Congress is left to
speculate as to which among them is being referred to by the
executive. The enumeration is not even intended to be
comprehensive, but a mere statement of what is included in the
phrase "confidential or classified information between the
President and the public officers covered by this executive
order."
Certainly, Congress has the right to know why the executive
considers the requested information privileged. It does not
suffice to merely declare that the President, or an authorized
head of office, has determined that it is so, and that the
President has not overturned that determination. Such
declaration leaves Congress in the dark on how the requested
information could be classified as privileged. That the message
is couched in terms that, on first impression, do not seem like a
claim of privilege only makes it more pernicious. It threatens to
make Congress doubly blind to the question of why the
executive branch is not providing it with the information that it
has requested.
A claim of privilege, being a claim of exemption from an
obligation to disclose information, must, therefore, be clearly
asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted
by it; it can neither be claimed nor waived by a private party. It
is not to be lightly invoked. There must be a formal claim of
privilege, lodged by the head of the department which has
control over the matter, after actual personal consideration by
that officer. The court itself must determine whether the
circumstances are appropriate for the claim of privilege, and yet
do so without forcing a disclosure of the very thing the privilege
is designed to protect.92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim of
executive privilege, there is no way of determining whether it
falls under one of the traditional privileges, or whether, given
the circumstances in which it is made, it should be
respected.93 These, in substance, were the same criteria in
assessing the claim of privilege asserted against the
Ombudsman in Almonte v. Vasquez94 and, more in point,
against a committee of the Senate in Senate Select Committee
on Presidential Campaign Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential
harm resulting from disclosure impossible, thereby preventing
the Court from balancing such harm against plaintiffs’ needs to
determine whether to override any claims of
privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon
to perform this balancing operation. In stating its objection to
claimant’s interrogatories, government asserts, and nothing
more, that the disclosures sought by claimant would inhibit the
free expression of opinion that non-disclosure is designed to
protect. The government has not shown – nor even alleged –
that those who evaluated claimant’s product were involved in
internal policymaking, generally, or in this particular instance.
Privilege cannot be set up by an unsupported claim. The facts
upon which the privilege is based must be established. To find
these interrogatories objectionable, this Court would have to
assume that the evaluation and classification of claimant’s
products was a matter of internal policy formulation, an
assumption in which this Court is unwilling to indulge sua
sponte.98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes
that "an agency must provide ‘precise and certain’ reasons for
preserving the confidentiality of requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a
specific designation and description of the documents within its
scope as well as precise and certain reasons for preserving their
confidentiality. Without this specificity, it is impossible for a
court to analyze the claim short of disclosure of the very thing
sought to be protected. As the affidavit now stands, the Court
has little more than its sua sponte speculation with which to
weigh the applicability of the claim. An improperly asserted
claim of privilege is no claim of privilege. Therefore, despite the
fact that a claim was made by the proper executive as Reynolds
requires, the Court can not recognize the claim in the instant
case because it is legally insufficient to allow the Court to make
a just and reasonable determination as to its applicability. To
recognize such a broad claim in which the Defendant has given
no precise or compelling reasons to shield these documents
from outside scrutiny, would make a farce of the whole
procedure.101 (Emphasis and underscoring supplied)
Due respect for a co-equal branch of government, moreover,
demands no less than a claim of privilege clearly stating the
grounds therefor. Apropos is the following ruling in McPhaul v.
U.S:102
We think the Court’s decision in United States v. Bryan, 339 U.S.
323, 70 S. Ct. 724, is highly relevant to these questions. For it is
as true here as it was there, that ‘if (petitioner) had legitimate
reasons for failing to produce the records of the association, a
decent respect for the House of Representatives, by whose
authority the subpoenas issued, would have required that (he)
state (his) reasons for noncompliance upon the return of the
writ. Such a statement would have given the Subcommittee an
opportunity to avoid the blocking of its inquiry by taking other
appropriate steps to obtain the records. ‘To deny the
Committee the opportunity to consider the objection or remedy
is in itself a contempt of its authority and an obstruction of its
processes. His failure to make any such statement was "a patent
evasion of the duty of one summoned to produce papers before
a congressional committee[, and] cannot be condoned."
(Emphasis and underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive
to state the reasons for the claim with such particularity as to
compel disclosure of the information which the privilege is
meant to protect.103 A useful analogy in determining the
requisite degree of particularity would be the privilege against
self-incrimination. Thus, Hoffman v. U.S.104 declares:
The witness is not exonerated from answering merely because
he declares that in so doing he would incriminate himself – his
say-so does not of itself establish the hazard of incrimination. It
is for the court to say whether his silence is justified, and to
require him to answer if ‘it clearly appears to the court that he
is mistaken.’ However, if the witness, upon interposing his
claim, were required to prove the hazard in the sense in which a
claim is usually required to be established in court, he would be
compelled to surrender the very protection which the privilege
is designed to guarantee. To sustain the privilege, it need only
be evident from the implications of the question, in the setting
in which it is asked, that a responsive answer to the question or
an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result." x x x
(Emphasis and underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to
Section 2(b) is thus invalid per se. It is not asserted. It is merely
implied. Instead of providing precise and certain reasons for the
claim, it merely invokes E.O. 464, coupled with an
announcement that the President has not given her consent. It
is woefully insufficient for Congress to determine whether the
withholding of information is justified under the circumstances
of each case. It severely frustrates the power of inquiry of
Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be
invalidated.
No infirmity, however, can be imputed to Section 2(a) as it
merely provides guidelines, binding only on the heads of office
mentioned in Section 2(b), on what is covered by executive
privilege. It does not purport to be conclusive on the other
branches of government. It may thus be construed as a mere
expression of opinion by the President regarding the nature and
scope of executive privilege.
Petitioners, however, assert as another ground for invalidating
the challenged order the alleged unlawful delegation of
authority to the heads of offices in Section 2(b). Petitioner
Senate of the Philippines, in particular, cites the case of the
United States where, so it claims, only the President can assert
executive privilege to withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once
the head of office determines that a certain information is
privileged, such determination is presumed to bear the
President’s authority and has the effect of prohibiting the
official from appearing before Congress, subject only to the
express pronouncement of the President that it is allowing the
appearance of such official. These provisions thus allow the
President to authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the
exceptional nature of the privilege. Executive privilege, as
already discussed, is recognized with respect to information the
confidential nature of which is crucial to the fulfillment of the
unique role and responsibilities of the executive branch,105 or in
those instances where exemption from disclosure is necessary
to the discharge of highly important executive
responsibilities.106 The doctrine of executive privilege is thus
premised on the fact that certain informations must, as a
matter of necessity, be kept confidential in pursuit of the public
interest. The privilege being, by definition, an exemption from
the obligation to disclose information, in this case to Congress,
the necessity must be of such high degree as to outweigh the
public interest in enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the
Court finds it essential to limit to the President the power to
invoke the privilege. She may of course authorize the Executive
Secretary to invoke the privilege on her behalf, in which case
the Executive Secretary must state that the authority is "By
order of the President," which means that he personally
consulted with her. The privilege being an extraordinary power,
it must be wielded only by the highest official in the executive
hierarchy. In other words, the President may not authorize her
subordinates to exercise such power. There is even less reason
to uphold such authorization in the instant case where the
authorization is not explicit but by mere silence. Section 3, in
relation to Section 2(b), is further invalid on this score.
It follows, therefore, that when an official is being summoned
by Congress on a matter which, in his own judgment, might be
covered by executive privilege, he must be afforded reasonable
time to inform the President or the Executive Secretary of the
possible need for invoking the privilege. This is necessary in
order to provide the President or the Executive Secretary with
fair opportunity to consider whether the matter indeed calls for
a claim of executive privilege. If, after the lapse of that
reasonable time, neither the President nor the Executive
Secretary invokes the privilege, Congress is no longer bound to
respect the failure of the official to appear before Congress and
may then opt to avail of the necessary legal means to compel
his appearance.
The Court notes that one of the expressed purposes for
requiring officials to secure the consent of the President under
Section 3 of E.O. 464 is to ensure "respect for the rights of
public officials appearing in inquiries in aid of legislation." That
such rights must indeed be respected by Congress is an echo
from Article VI Section 21 of the Constitution mandating that
"[t]he rights of persons appearing in or affected by such
inquiries shall be respected."
In light of the above discussion of Section 3, it is clear that it is
essentially an authorization for implied claims of executive
privilege, for which reason it must be invalidated. That such
authorization is partly motivated by the need to ensure respect
for such officials does not change the infirm nature of the
authorization itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the
appearance of executive officials in the hearings conducted by
it, and not with the demands of citizens for information
pursuant to their right to information on matters of public
concern. Petitioners are not amiss in claiming, however, that
what is involved in the present controversy is not merely the
legislative power of inquiry, but the right of the people to
information.
There are, it bears noting, clear distinctions between the right
of Congress to information which underlies the power of inquiry
and the right of the people to information on matters of public
concern. For one, the demand of a citizen for the production of
documents pursuant to his right to information does not have
the same obligatory force as a subpoena duces tecum issued by
Congress. Neither does the right to information grant a citizen
the power to exact testimony from government officials. These
powers belong only to Congress and not to an individual citizen.
Thus, while Congress is composed of representatives elected by
the people, it does not follow, except in a highly qualified sense,
that in every exercise of its power of inquiry, the people are
exercising their right to information.
To the extent that investigations in aid of legislation are
generally conducted in public, however, any executive issuance
tending to unduly limit disclosures of information in such
investigations necessarily deprives the people of information
which, being presumed to be in aid of legislation, is presumed
to be a matter of public concern. The citizens are thereby
denied access to information which they can use in formulating
their own opinions on the matter before Congress — opinions
which they can then communicate to their representatives and
other government officials through the various legal means
allowed by their freedom of expression. Thus holds Valmonte v.
Belmonte:
It is in the interest of the State that the channels for free
political discussion be maintained to the end that the
government may perceive and be responsive to the people’s
will. Yet, this open dialogue can be effective only to the extent
that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in the discussion are
aware of the issues and have access to information relating
thereto can such bear fruit.107 (Emphasis and underscoring
supplied)
The impairment of the right of the people to information as a
consequence of E.O. 464 is, therefore, in the sense explained
above, just as direct as its violation of the legislature’s power of
inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch,
it does not follow that the same is exempt from the need for
publication. On the need for publishing even those statutes that
do not directly apply to people in general, Tañada v. Tuvera
states:
The term "laws" should refer to all laws and not only to those of
general application, for strictly speaking all laws relate to the
people in general albeit there are some that do not apply to
them directly. An example is a law granting citizenship to a
particular individual, like a relative of President Marcos who
was decreed instant naturalization. It surely cannot be said that
such a law does not affect the public although it unquestionably
does not apply directly to all the people. The subject of such law
is a matter of public interest which any member of the body
politic may question in the political forums or, if he is a proper
party, even in courts of justice.108 (Emphasis and underscoring
supplied)
Although the above statement was made in reference to
statutes, logic dictates that the challenged order must be
covered by the publication requirement. As explained above,
E.O. 464 has a direct effect on the right of the people to
information on matters of public concern. It is, therefore, a
matter of public interest which members of the body politic
may question before this Court. Due process thus requires that
the people should have been apprised of this issuance before it
was implemented.
Conclusion
Congress undoubtedly has a right to information from the
executive branch whenever it is sought in aid of legislation. If
the executive branch withholds such information on the ground
that it is privileged, it must so assert it and state the reason
therefor and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive
branch to evade congressional requests for information without
need of clearly asserting a right to do so and/or proffering its
reasons therefor. By the mere expedient of invoking said
provisions, the power of Congress to conduct inquiries in aid of
legislation is frustrated. That is impermissible. For
[w]hat republican theory did accomplish…was to reverse the old
presumption in favor of secrecy, based on the divine right of
kings and nobles, and replace it with a presumption in favor of
publicity, based on the doctrine of popular sovereignty.
(Underscoring supplied)109
Resort to any means then by which officials of the executive
branch could refuse to divulge information cannot be presumed
valid. Otherwise, we shall not have merely nullified the power
of our legislature to inquire into the operations of government,
but we shall have given up something of much greater value –
our right as a people to take part in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b)
and 3 of Executive Order No. 464 (series of 2005), "Ensuring
Observance of the Principle of Separation of Powers, Adherence
to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing
in Legislative Inquiries in Aid of Legislation Under the
Constitution, and For Other Purposes," are declared VOID.
Sections 1 and 2(a) are, however, VALID.
SO ORDERED.
A.M. No. 88-7-1861-RTC October 5, 1988
IN RE: DESIGNATION OF JUDGE RODOLFO U. MANZANO AS
MEMBER OF THE ILOCOS NORTE PROVINCIAL COMMITTEE ON
JUSTICE.
PADILLA, J.:
On 4 July 1988, Judge Rodolfo U. Manzano, Executive Judge,
RTC, Bangui, Ilocos Norte, Branch 19, sent this Court a letter
which reads:
Hon. Marcelo Fernan
Chief Justice of the Supreme Court
of the Philippines
Manila
Thru channels: Hon. Leo Medialdea
Court Administrator
Supreme Court of the Philippines
Sir:
By Executive Order RF6-04 issued on June 21, 1988 by the
Honorable Provincial Governor of Ilocos Norte, Hon. Rodolfo C.
Farinas, I was designated as a member of the Ilocos Norte
Provincial Committee on Justice created pursuant to
Presidential Executive Order No. 856 of 12 December 1986, as
amended by Executive Order No. 326 of June 1, 1988. In
consonance with Executive Order RF6-04, the Honorable
Provincial Governor of Ilocos Norte issued my appointment as a
member of the Committee. For your ready reference, I am
enclosing herewith machine copies of Executive Order RF6-04
and the appointment.
Before I may accept the appointment and enter in the discharge
of the powers and duties of the position as member of the
Ilocos (Norte) Provincial Committee on Justice, may I have the
honor to request for the issuance by the Honorable Supreme
Court of a Resolution, as follows:
(1) Authorizing me to accept the appointment and to as
assume and discharge the powers and duties attached
to the said position;
(2) Considering my membership in the Committee as
neither violative of the Independence of the Judiciary
nor a violation of Section 12, Article VIII, or of the
second paragraph of Section .7, Article IX (B), both of
the Constitution, and will not in any way amount to an
abandonment of my present position as Executive
Judge of Branch XIX, Regional Trial Court, First Judicial
Region, and as a member of the Judiciary; and
(3) Consider my membership in the said Committee as
part of the primary functions of an Executive Judge.
May I please be favored soon by your action on this request.
Very respectfully yours,
(Sgd) RODOLFO U. MANZANO
Judge
An examination of Executive Order No. 856, as amended,
reveals that Provincial/City Committees on Justice are created
to insure the speedy disposition of cases of detainees,
particularly those involving the poor and indigent ones, thus
alleviating jail congestion and improving local jail conditions.
Among the functions of the Committee are—
3.3 Receive complaints against any apprehending
officer, jail warden, final or judge who may be found to
have committed abuses in the discharge of his duties
and refer the same to proper authority for appropriate
action;
3.5 Recommend revision of any law or regulation which
is believed prejudicial to the proper administration of
criminal justice.
It is evident that such Provincial/City Committees on Justice
perform administrative functions. Administrative functions are
those which involve the regulation and control over the conduct
and affairs of individuals for; their own welfare and the
promulgation of rules and regulations to better carry out the
policy of the legislature or such as are devolved upon the
administrative agency by the organic law of its existence
(Nasipit Integrated Arrastre and Stevedoring Services Inc., vs.
Tapucar, SP-07599-R, 29 September 1978, Blacks Law
Dictionary).
Furthermore, under Executive Order No. 326 amending
Executive Order No. 856, it is provided that—
Section 6. Supervision.—The Provincial/City Committees
on Justice shall be under the supervision of the
Secretary of justice Quarterly accomplishment reports
shall be submitted to the Office of the Secretary of
Justice.
Under the Constitution, the members of the Supreme Court and
other courts established by law shag not be designated to any
agency performing quasi- judicial or administrative functions
(Section 12, Art. VIII, Constitution).
Considering that membership of Judge Manzano in the Ilocos
Norte Provincial Committee on Justice, which discharges a
administrative functions, will be in violation of the Constitution,
the Court is constrained to deny his request.
Former Chief Justice Enrique M. Fernando in his concurring
opinion in the case of Garcia vs. Macaraig (39 SCRA 106) ably
sets forth:
 2. While the doctrine of separation of powers is a
relative theory not to be enforced with pedantic rigor,
the practical demands of government precluding its
doctrinaire application, it cannot justify a member of
the judiciary being required to assume a position or
perform a duty non-judicial in character. That is implicit
in the principle. Otherwise there is a plain departure
from its command. The essence of the trust reposed in
him is to decide. Only a higher court, as was
emphasized by Justice Barredo, can pass on his
actuation. He is not a subordinate of an executive or
legislative official, however eminent. It is indispensable
that there be no exception to the rigidity of such a norm
if he is, as expected, to be confined to the task of
adjudication. Fidelity to his sworn responsibility no less
than the maintenance of respect for the judiciary can be
satisfied with nothing less.

This declaration does not mean that RTC Judges should adopt
an attitude of monastic insensibility or unbecoming indifference
to Province/City Committee on Justice. As incumbent RTC
Judges, they form part of the structure of government. Their
integrity and performance in the adjudication of cases
contribute to the solidity of such structure. As public officials,
they are trustees of an orderly society. Even as non-members of
Provincial/City Committees on Justice, RTC judges should render
assistance to said Committees to help promote the laudable
purposes for which they exist, but only when such assistance
may be reasonably incidental to the fulfillment of their judicial
duties.

ACCORDINGLY, the aforesaid request of Judge Rodolfo U.

Manzano is DENIED.

SO ORDERED.
G.R. No. L-45081 July 15, 1936
JOSE A. ANGARA, petitioner,
vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL
CASTILLO, and DIONISIO C. MAYOR, respondents.
LAUREL, J.:
This is an original action instituted in this court by the
petitioner, Jose A. Angara, for the issuance of a writ of
prohibition to restrain and prohibit the Electoral Commission,
one of the respondents, from taking further cognizance of the
protest filed by Pedro Ynsua, another respondent, against the
election of said petitioner as member of the National Assembly
for the first assembly district of the Province of Tayabas.
The facts of this case as they appear in the petition and as
admitted by the respondents are as follows:
(1) That in the elections of September 17, 1935, the
petitioner, Jose A. Angara, and the respondents, Pedro
Ynsua, Miguel Castillo and Dionisio Mayor, were
candidates voted for the position of member of the
National Assembly for the first district of the Province of
Tayabas;
(2) That on October 7, 1935, the provincial board of
canvassers, proclaimed the petitioner as member-elect
of the National Assembly for the said district, for having
received the most number of votes;
(3) That on November 15, 1935, the petitioner took his
oath of office;
(4) That on December 3, 1935, the National Assembly in
session assembled, passed the following resolution:
[No. 8]
RESOLUCION CONFIRMANDO LAS
ACTAS DE AQUELLOS DIPUTADOS
CONTRA QUIENES NO SE HA
PRESENTADO PROTESTA.
Se resuelve: Que las actas de eleccion
de los Diputados contra quienes no se
hubiere presentado debidamente una
protesta antes de la adopcion de la
presente resolucion sean, como por la
presente, son aprobadas y confirmadas.
Adoptada, 3 de diciembre, 1935.
(5) That on December 8, 1935, the herein respondent
Pedro Ynsua filed before the Electoral Commission a
"Motion of Protest" against the election of the herein
petitioner, Jose A. Angara, being the only protest filed
after the passage of Resolutions No. 8 aforequoted, and
praying, among other-things, that said respondent be
declared elected member of the National Assembly for
the first district of Tayabas, or that the election of said
position be nullified;
(6) That on December 9, 1935, the Electoral Commission
adopted a resolution, paragraph 6 of which provides:
6. La Comision no considerara ninguna protesta
que no se haya presentado en o antes de este
dia.
(7) That on December 20, 1935, the herein petitioner,
Jose A. Angara, one of the respondents in the aforesaid
protest, filed before the Electoral Commission a
"Motion to Dismiss the Protest", alleging (a) that
Resolution No. 8 of Dismiss the Protest", alleging (a)
that Resolution No. 8 of the National Assembly was
adopted in the legitimate exercise of its constitutional
prerogative to prescribe the period during which
protests against the election of its members should be
presented; (b) that the aforesaid resolution has for its
object, and is the accepted formula for, the limitation of
said period; and (c) that the protest in question was
filed out of the prescribed period;
(8) That on December 27, 1935, the herein respondent,
Pedro Ynsua, filed an "Answer to the Motion of
Dismissal" alleging that there is no legal or
constitutional provision barring the presentation of a
protest against the election of a member of the
National Assembly after confirmation;
(9) That on December 31, 1935, the herein petitioner,
Jose A. Angara, filed a "Reply" to the aforesaid "Answer
to the Motion of Dismissal";
(10) That the case being submitted for decision, the
Electoral Commission promulgated a resolution on
January 23, 1936, denying herein petitioner's "Motion
to Dismiss the Protest."
The application of the petitioner sets forth the following
grounds for the issuance of the writ prayed for:
(a) That the Constitution confers exclusive jurisdiction
upon the electoral Commission solely as regards the
merits of contested elections to the National Assembly;
(b) That the Constitution excludes from said jurisdiction
the power to regulate the proceedings of said election
contests, which power has been reserved to the
Legislative Department of the Government or the
National Assembly;
(c) That like the Supreme Court and other courts
created in pursuance of the Constitution, whose
exclusive jurisdiction relates solely to deciding the
merits of controversies submitted to them for decision
 and to matters involving their internal organization, the
Electoral Commission can regulate its proceedings only
if the National Assembly has not availed of its primary
power to so regulate such proceedings;
(d) That Resolution No. 8 of the National Assembly is,
therefore, valid and should be respected and obeyed;
(e) That under paragraph 13 of section 1 of the
ordinance appended to the Constitution and paragraph
6 of article 7 of the Tydings-McDuffie Law (No. 127 of
the 73rd Congress of the United States) as well as under
section 1 and 3 (should be sections 1 and 2) of article
VIII of the Constitution, this Supreme Court has
jurisdiction to pass upon the fundamental question
herein raised because it involves an interpretation of
the Constitution of the Philippines.
On February 25, 1936, the Solicitor-General appeared and filed
an answer in behalf of the respondent Electoral Commission
interposing the following special defenses:
(a) That the Electoral Commission has been created by
the Constitution as an instrumentality of the Legislative
Department invested with the jurisdiction to decide "all
contests relating to the election, returns, and
qualifications of the members of the National
Assembly"; that in adopting its resolution of December
9, 1935, fixing this date as the last day for the
presentation of protests against the election of any
member of the National Assembly, it acted within its
jurisdiction and in the legitimate exercise of the implied
powers granted it by the Constitution to adopt the rules
and regulations essential to carry out the power and
functions conferred upon the same by the fundamental
law; that in adopting its resolution of January 23, 1936,
overruling the motion of the petitioner to dismiss the
election protest in question, and declaring itself with
jurisdiction to take cognizance of said protest, it acted
in the legitimate exercise of its quasi-judicial functions a
an instrumentality of the Legislative Department of the
Commonwealth Government, and hence said act is
beyond the judicial cognizance or control of the
Supreme Court;
(b) That the resolution of the National Assembly of
December 3, 1935, confirming the election of the
members of the National Assembly against whom no
protest had thus far been filed, could not and did not
deprive the electoral Commission of its jurisdiction to
take cognizance of election protests filed within the
time that might be set by its own rules:
(c) That the Electoral Commission is a body invested
with quasi-judicial functions, created by the
Constitution as an instrumentality of the Legislative
Department, and is not an "inferior tribunal, or
corporation, or board, or person" within the purview of
section 226 and 516 of the Code of Civil Procedure,
against which prohibition would lie.
The respondent Pedro Ynsua, in his turn, appeared and filed an
answer in his own behalf on March 2, 1936, setting forth the
following as his special defense:
(a) That at the time of the approval of the rules of the
Electoral Commission on December 9, 1935, there was
no existing law fixing the period within which protests
against the election of members of the National
Assembly should be filed; that in fixing December 9,
1935, as the last day for the filing of protests against the
election of members of the National Assembly, the
Electoral Commission was exercising a power impliedly
conferred upon it by the Constitution, by reason of its
quasi-judicial attributes;
(b) That said respondent presented his motion of
protest before the Electoral Commission on December
9, 1935, the last day fixed by paragraph 6 of the rules of
the said Electoral Commission;
(c) That therefore the Electoral Commission acquired
jurisdiction over the protest filed by said respondent
and over the parties thereto, and the resolution of the
Electoral Commission of January 23, 1936, denying
petitioner's motion to dismiss said protest was an act
within the jurisdiction of the said commission, and is
not reviewable by means of a writ of prohibition;
(d) That neither the law nor the Constitution requires
confirmation by the National Assembly of the election
of its members, and that such confirmation does not
operate to limit the period within which protests should
be filed as to deprive the Electoral Commission of
jurisdiction over protest filed subsequent thereto;
(e) That the Electoral Commission is an independent
entity created by the Constitution, endowed with quasi-
judicial functions, whose decision are final and
unappealable;
( f ) That the electoral Commission, as a constitutional
creation, is not an inferior tribunal, corporation, board
or person, within the terms of sections 226 and 516 of
the Code of Civil Procedure; and that neither under the
provisions of sections 1 and 2 of article II (should be
article VIII) of the Constitution and paragraph 13 of
section 1 of the Ordinance appended thereto could it be
subject in the exercise of its quasi-judicial functions to a
writ of prohibition from the Supreme Court;
(g) That paragraph 6 of article 7 of the Tydings-McDuffie
Law (No. 127 of the 73rd Congress of the united States)
has no application to the case at bar.
The case was argued before us on March 13, 1936. Before it was
submitted for decision, the petitioner prayed for the issuance of
a preliminary writ of injunction against the respondent Electoral
Commission which petition was denied "without passing upon
the merits of the case" by resolution of this court of March 21,
1936.
There was no appearance for the other respondents.
The issues to be decided in the case at bar may be reduced to
the following two principal propositions:
1. Has the Supreme Court jurisdiction over the Electoral
Commission and the subject matter of the controversy
upon the foregoing related facts, and in the affirmative,
2. Has the said Electoral Commission acted without or in
excess of its jurisdiction in assuming to the cognizance
of the protest filed the election of the herein petitioner
notwithstanding the previous confirmation of such
election by resolution of the National Assembly?
We could perhaps dispose of this case by passing directly upon
the merits of the controversy. However, the question of
jurisdiction having been presented, we do not feel justified in
evading the issue. Being a case primæ impressionis, it would
hardly be consistent with our sense of duty to overlook the
broader aspect of the question and leave it undecided. Neither
would we be doing justice to the industry and vehemence of
counsel were we not to pass upon the question of jurisdiction
squarely presented to our consideration.
The separation of powers is a fundamental principle in our
system of government. It obtains not through express provision
but by actual division in our Constitution. Each department of
the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere. But it does
not follow from the fact that the three powers are to be kept
separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The
Constitution has provided for an elaborate system of checks and
balances to secure coordination in the workings of the various
departments of the government. For example, the Chief
Executive under our Constitution is so far made a check on the
legislative power that this assent is required in the enactment of
laws. This, however, is subject to the further check that a bill
may become a law notwithstanding the refusal of the President
to approve it, by a vote of two-thirds or three-fourths, as the
case may be, of the National Assembly. The President has also
the right to convene the Assembly in special session whenever
he chooses. On the other hand, the National Assembly operates
as a check on the Executive in the sense that its consent
through its Commission on Appointments is necessary in the
appointments of certain officers; and the concurrence of a
majority of all its members is essential to the conclusion of
treaties. Furthermore, in its power to determine what courts
other than the Supreme Court shall be established, to define
their jurisdiction and to appropriate funds for their support, the
National Assembly controls the judicial department to a certain
extent. The Assembly also exercises the judicial power of trying
impeachments. And the judiciary in turn, with the Supreme
Court as the final arbiter, effectively checks the other
departments in the exercise of its power to determine the law,
and hence to declare executive and legislative acts void if
violative of the Constitution.
But in the main, the Constitution has blocked out with deft
strokes and in bold lines, allotment of power to the executive,
the legislative and the judicial departments of the government.
The overlapping and interlacing of functions and duties
between the several departments, however, sometimes makes
it hard to say just where the one leaves off and the other
begins. In times of social disquietude or political excitement, the
great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the
judicial department is the only constitutional organ which can
be called upon to determine the proper allocation of powers
between the several departments and among the integral or
constituent units thereof.
As any human production, our Constitution is of course lacking
perfection and perfectibility, but as much as it was within the
power of our people, acting through their delegates to so
provide, that instrument which is the expression of their
sovereignty however limited, has established a republican
government intended to operate and function as a harmonious
whole, under a system of checks and balances, and subject to
specific limitations and restrictions provided in the said
instrument. The Constitution sets forth in no uncertain language
the restrictions and limitations upon governmental powers and
agencies. If these restrictions and limitations are transcended it
would be inconceivable if the Constitution had not provided for
a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers
would be mere verbiage, the bill of rights mere expressions of
sentiment, and the principles of good government mere
political apothegms. Certainly, the limitation and restrictions
embodied in our Constitution are real as they should be in any
living constitution. In the United States where no express
constitutional grant is found in their constitution, the
possession of this moderating power of the courts, not to speak
of its historical origin and development there, has been set at
rest by popular acquiescence for a period of more than one and
a half centuries. In our case, this moderating power is granted, if
not expressly, by clear implication from section 2 of article VIII
of our constitution.
The Constitution is a definition of the powers of government.
Who is to determine the nature, scope and extent of such
powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. 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. This is in truth all that is involved in what is
termed "judicial supremacy" which properly is the power of
judicial review under the Constitution. Even then, this power of
judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and
limited further to the constitutional question raised or the
very lis mota presented. Any attempt at abstraction could only
lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities. Narrowed as its function is
in this manner, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to
abide by the Constitution but also because the judiciary in the
determination of actual cases and controversies must reflect
the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of
the governments of the government.
But much as we might postulate on the internal checks of
power provided in our Constitution, it ought not the less to be
remembered that, in the language of James Madison, the
system itself is not "the chief palladium of constitutional liberty
. . . the people who are authors of this blessing must also be its
guardians . . . their eyes must be ever ready to mark, their voice
to pronounce . . . aggression on the authority of their
constitution." In the Last and ultimate analysis, then, must the
success of our government in the unfolding years to come be
tested in the crucible of Filipino minds and hearts than in
consultation rooms and court chambers.
In the case at bar, the national Assembly has by resolution (No.
8) of December 3, 1935, confirmed the election of the herein
petitioner to the said body. On the other hand, the Electoral
Commission has by resolution adopted on December 9, 1935,
fixed said date as the last day for the filing of protests against
the election, returns and qualifications of members of the
National Assembly, notwithstanding the previous confirmation
made by the National Assembly as aforesaid. If, as contended by
the petitioner, the resolution of the National Assembly has the
effect of cutting off the power of the Electoral Commission to
entertain protests against the election, returns and
qualifications of members of the National Assembly, submitted
after December 3, 1935, then the resolution of the Electoral
Commission of December 9, 1935, is mere surplusage and had
no effect. But, if, as contended by the respondents, the
Electoral Commission has the sole power of regulating its
proceedings to the exclusion of the National Assembly, then the
resolution of December 9, 1935, by which the Electoral
Commission fixed said date as the last day for filing protests
against the election, returns and qualifications of members of
the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it
does a conflict of a grave constitutional nature between the
National Assembly on the one hand, and the Electoral
Commission on the other. From the very nature of the
republican government established in our country in the light of
American experience and of our own, upon the judicial
department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional
boundaries. The Electoral Commission, as we shall have
occasion to refer hereafter, is a constitutional organ, created for
a specific purpose, namely to determine all contests relating to
the election, returns and qualifications of the members of the
National Assembly. Although the Electoral Commission may not
be interfered with, when and while acting within the limits of its
authority, it does not follow that it is beyond the reach of the
constitutional mechanism adopted by the people and that it is
not subject to constitutional restrictions. The Electoral
Commission is not a separate department of the government,
and even if it were, conflicting claims of authority under the
fundamental law between department powers and agencies of
the government are necessarily determined by the judiciary in
justifiable and appropriate cases. Discarding the English type
and other European types of constitutional government, the
framers of our constitution adopted the American type where
the written constitution is interpreted and given effect by the
judicial department. In some countries which have declined to
follow the American example, provisions have been inserted in
their constitutions prohibiting the courts from exercising the
power to interpret the fundamental law. This is taken as a
recognition of what otherwise would be the rule that in the
absence of direct prohibition courts are bound to assume what
is logically their function. For instance, the Constitution of
Poland of 1921, expressly provides that courts shall have no
power to examine the validity of statutes (art. 81, chap. IV). The
former Austrian Constitution contained a similar declaration. In
countries whose constitutions are silent in this respect, courts
have assumed this power. This is true in Norway, Greece,
Australia and South Africa. Whereas, in Czechoslovakia (arts. 2
and 3, Preliminary Law to constitutional Charter of the
Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-
123, Title IX, Constitutional of the Republic of 1931) especial
constitutional courts are established to pass upon the validity of
ordinary laws. In our case, the nature of the present
controversy shows the necessity of a final constitutional arbiter
to determine the conflict of authority between two agencies
created by the Constitution. Were we to decline to take
cognizance of the controversy, who will determine the conflict?
And if the conflict were left undecided and undetermined,
would not a void be thus created in our constitutional system
which may be in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura
vacuum abhorret, so must we avoid exhaustion in our
constitutional system. Upon principle, reason and authority, we
are clearly of the opinion that upon the admitted facts of the
present case, this court has jurisdiction over the Electoral
Commission and the subject mater of the present controversy
for the purpose of determining the character, scope and extent
of the constitutional grant to the Electoral Commission as "the
sole judge of all contests relating to the election, returns and
qualifications of the members of the National Assembly."
Having disposed of the question of jurisdiction, we shall now
proceed to pass upon the second proposition and determine
whether the Electoral Commission has acted without or in
excess of its jurisdiction in adopting its resolution of December
9, 1935, and in assuming to take cognizance of the protest filed
against the election of the herein petitioner notwithstanding
the previous confirmation thereof by the National Assembly on
December 3, 1935. As able counsel for the petitioner has
pointed out, the issue hinges on the interpretation of section 4
of Article VI of the Constitution which provides:
"SEC. 4. There shall be an Electoral Commission composed of
three Justice of the Supreme Court designated by the Chief
Justice, and of six Members chosen by the National Assembly,
three of whom shall be nominated by the party having the
largest number of votes, and three by the party having the
second largest number of votes therein. The senior Justice in
the Commission shall be its Chairman. The Electoral Commission
shall be the sole judge of all contests relating to the election,
returns and qualifications of the members of the National
Assembly." It is imperative, therefore, that we delve into the
origin and history of this constitutional provision and inquire
into the intention of its framers and the people who adopted it
so that we may properly appreciate its full meaning, import and
significance.
The original provision regarding this subject in the Act of
Congress of July 1, 1902 (sec. 7, par. 5) laying down the rule that
"the assembly shall be the judge of the elections, returns, and
qualifications of its members", was taken from clause 1 of
section 5, Article I of the Constitution of the United States
providing that "Each House shall be the Judge of the Elections,
Returns, and Qualifications of its own Members, . . . ." The Act
of Congress of August 29, 1916 (sec. 18, par. 1) modified this
provision by the insertion of the word "sole" as follows: "That
the Senate and House of Representatives, respectively, shall be
the sole judges of the elections, returns, and qualifications of
their elective members . . ." apparently in order to emphasize
the exclusive the Legislative over the particular case s therein
specified. This court has had occasion to characterize this grant
of power to the Philippine Senate and House of
Representatives, respectively, as "full, clear and complete"
(Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39
Phil., 886, 888.)
The first step towards the creation of an independent tribunal
for the purpose of deciding contested elections to the
legislature was taken by the sub-committee of five appointed by
the Committee on Constitutional Guarantees of the
Constitutional Convention, which sub-committee submitted a
report on August 30, 1934, recommending the creation of a
Tribunal of Constitutional Security empowered to hear
legislature but also against the election of executive officers for
whose election the vote of the whole nation is required, as well
as to initiate impeachment proceedings against specified
executive and judicial officer. For the purpose of hearing
legislative protests, the tribunal was to be composed of three
justices designated by the Supreme Court and six members of
the house of the legislature to which the contest corresponds,
three members to be designed by the majority party and three
by the minority, to be presided over by the Senior Justice unless
the Chief Justice is also a member in which case the latter shall
preside. The foregoing proposal was submitted by the
Committee on Constitutional Guarantees to the Convention on
September 15, 1934, with slight modifications consisting in the
reduction of the legislative representation to four members,
that is, two senators to be designated one each from the two
major parties in the Senate and two representatives to be
designated one each from the two major parties in the House of
Representatives, and in awarding representation to the
executive department in the persons of two representatives to
be designated by the President.
Meanwhile, the Committee on Legislative Power was also
preparing its report. As submitted to the Convention on
September 24, 1934 subsection 5, section 5, of the proposed
Article on the Legislative Department, reads as follows:
The elections, returns and qualifications of the
members of either house and all cases contesting the
election of any of their members shall be judged by an
Electoral Commission, constituted, as to each House, by
three members elected by the members of the party
having the largest number of votes therein, three
elected by the members of the party having the second
largest number of votes, and as to its Chairman, one
Justice of the Supreme Court designated by the Chief
Justice.
The idea of creating a Tribunal of Constitutional Security with
comprehensive jurisdiction as proposed by the Committee on
Constitutional Guarantees which was probably inspired by the
Spanish plan (art. 121, Constitution of the Spanish Republic of
1931), was soon abandoned in favor of the proposition of the
Committee on Legislative Power to create a similar body with
reduced powers and with specific and limited jurisdiction, to be
designated as a Electoral Commission. The Sponsorship
Committee modified the proposal of the Committee on
Legislative Power with respect to the composition of the
Electoral Commission and made further changes in phraseology
to suit the project of adopting a unicameral instead of a
bicameral legislature. The draft as finally submitted to the
Convention on October 26, 1934, reads as follows:
(6) The elections, returns and qualifications of the
Members of the National Assembly and all cases
contesting the election of any of its Members shall be
judged by an Electoral Commission, composed of three
members elected by the party having the largest
number of votes in the National Assembly, three
elected by the members of the party having the second
largest number of votes, and three justices of the
Supreme Court designated by the Chief Justice, the
Commission to be presided over by one of said justices.
During the discussion of the amendment introduced by
Delegates Labrador, Abordo, and others, proposing to strike out
the whole subsection of the foregoing draft and inserting in lieu
thereof the following: "The National Assembly shall be the soled
and exclusive judge of the elections, returns, and qualifications
of the Members", the following illuminating remarks were made
on the floor of the Convention in its session of December 4,
1934, as to the scope of the said draft:
xxx xxx xxx
Mr. VENTURA. Mr. President, we have a doubt here as
to the scope of the meaning of the first four lines,
paragraph 6, page 11 of the draft, reading: "The
elections, returns and qualifications of the Members of
the National Assembly and all cases contesting the
election of any of its Members shall be judged by an
Electoral Commission, . . ." I should like to ask from the
gentleman from Capiz whether the election and
qualification of the member whose elections is not
contested shall also be judged by the Electoral
Commission.
Mr. ROXAS. If there is no question about the election of
the members, there is nothing to be judged; that is why
the word "judge" is used to indicate a controversy. If
there is no question about the election of a member,
there is nothing to be submitted to the Electoral
Commission and there is nothing to be determined.
Mr. VENTURA. But does that carry the idea also that the
Electoral Commission shall confirm also the election of
those whose election is not contested?
Mr. ROXAS. There is no need of confirmation. As the
gentleman knows, the action of the House of
Representatives confirming the election of its members
is just a matter of the rules of the assembly. It is not
constitutional. It is not necessary. After a man files his
credentials that he has been elected, that is sufficient,
unless his election is contested.
Mr. VENTURA. But I do not believe that that is
sufficient, as we have observed that for purposes of the
auditor, in the matter of election of a member to a
legislative body, because he will not authorize his pay.
Mr. ROXAS. Well, what is the case with regards to the
municipal president who is elected? What happens with
regards to the councilors of a municipality? Does
anybody confirm their election? The municipal council
does this: it makes a canvass and proclaims — in this
case the municipal council proclaims who has been
elected, and it ends there, unless there is a contest. It is
the same case; there is no need on the part of the
Electoral Commission unless there is a contest. The first
clause refers to the case referred to by the gentleman
from Cavite where one person tries to be elected in
place of another who was declared elected. From
example, in a case when the residence of the man who
has been elected is in question, or in case the
citizenship of the man who has been elected is in
question.
However, if the assembly desires to annul the power of
the commission, it may do so by certain maneuvers
upon its first meeting when the returns are submitted
to the assembly. The purpose is to give to the Electoral
Commission all the powers exercised by the assembly
referring to the elections, returns and qualifications of
the members. When there is no contest, there is
nothing to be judged.
Mr. VENTURA. Then it should be eliminated.
Mr. ROXAS. But that is a different matter, I think Mr.
Delegate.
Mr. CINCO. Mr. President, I have a similar question as
that propounded by the gentleman from Ilocos Norte
when I arose a while ago. However I want to ask more
questions from the delegate from Capiz. This paragraph
6 on page 11 of the draft cites cases contesting the
election as separate from the first part of the sections
which refers to elections, returns and qualifications.
Mr. ROXAS. That is merely for the sake of clarity. In fact
the cases of contested elections are already included in
the phrase "the elections, returns and qualifications."
This phrase "and contested elections" was inserted
merely for the sake of clarity.
Mr. CINCO. Under this paragraph, may not the Electoral
Commission, at its own instance, refuse to confirm the
elections of the members."
Mr. ROXAS. I do not think so, unless there is a protest.
Mr. LABRADOR. Mr. President, will the gentleman yield?
THE PRESIDENT. The gentleman may yield, if he so
desires.
Mr. ROXAS. Willingly.
Mr. LABRADOR. Does not the gentleman from Capiz
believe that unless this power is granted to the
assembly, the assembly on its own motion does not
have the right to contest the election and qualification
of its members?
Mr. ROXAS. I have no doubt but that the gentleman is
right. If this draft is retained as it is, even if two-thirds of
the assembly believe that a member has not the
qualifications provided by law, they cannot remove him
for that reason.
Mr. LABRADOR. So that the right to remove shall only
be retained by the Electoral Commission.
Mr. ROXAS. By the assembly for misconduct.
Mr. LABRADOR. I mean with respect to the
qualifications of the members.
Mr. ROXAS. Yes, by the Electoral Commission.
Mr. LABRADOR. So that under this draft, no member of
the assembly has the right to question the eligibility of
its members?
Mr. ROXAS. Before a member can question the
eligibility, he must go to the Electoral Commission and
make the question before the Electoral Commission.
Mr. LABRADOR. So that the Electoral Commission shall
decide whether the election is contested or not
contested.
 Mr. ROXAS. Yes, sir: that is the purpose.
Mr. PELAYO. Mr. President, I would like to be informed
if the Electoral Commission has power and authority to
pass upon the qualifications of the members of the
National Assembly even though that question has not
been raised.
Mr. ROXAS. I have just said that they have no power,
because they can only judge.
In the same session, the first clause of the aforesaid draft
reading "The election, returns and qualifications of the
members of the National Assembly and" was eliminated by the
Sponsorship Committee in response to an amendment
introduced by Delegates Francisco, Ventura, Vinzons, Rafols,
Lim, Mumar and others. In explaining the difference between
the original draft and the draft as amended, Delegate Roxas
speaking for the Sponsorship Committee said:
xxx xxx xxx
Sr. ROXAS. La diferencia, señor Presidente, consiste
solamente en obviar la objecion apuntada por varios
Delegados al efecto de que la primera clausula
del draft que dice: "The elections, returns and
qualifications of the members of the National
Assembly" parece que da a la Comision Electoral la
facultad de determinar tambien la eleccion de los
miembros que no ha sido protestados y para obviar esa
dificultad, creemos que la enmienda tien razon en ese
sentido, si enmendamos el draft, de tal modo que se lea
como sigue: "All cases contesting the election", de
modo que los jueces de la Comision Electoral se
limitaran solamente a los casos en que haya habido
protesta contra las actas." Before the amendment of
Delegate Labrador was voted upon the following
interpellation also took place:
El Sr. CONEJERO. Antes de votarse la enmienda, quisiera
El Sr. PRESIDENTE. ¿Que dice el Comite?
El Sr. ROXAS. Con mucho gusto.
El Sr. CONEJERO. Tal como esta el draft, dando tres
miembros a la mayoria, y otros tres a la minoria y tres a
la Corte Suprema, ¿no cree Su Señoria que esto
equivale practicamente a dejar el asunto a los
miembros del Tribunal Supremo?
El Sr. ROXAS. Si y no. Creemos que si el tribunal o la
Commission esta constituido en esa forma, tanto los
miembros de la mayoria como los de la minoria asi
como los miembros de la Corte Suprema consideraran
la cuestion sobre la base de sus meritos, sabiendo que
el partidismo no es suficiente para dar el triunfo.
El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como
ese, podriamos hacer que tanto los de la mayoria como
los de la minoria prescindieran del partidismo?
El Sr. ROXAS. Creo que si, porque el partidismo no les
daria el triunfo.
xxx xxx xxx
The amendment introduced by Delegates Labrador, Abordo and
others seeking to restore the power to decide contests relating
to the election, returns and qualifications of members of the
National Assembly to the National Assembly itself, was defeated
by a vote of ninety-eight (98) against fifty-six (56).
In the same session of December 4, 1934, Delegate Cruz (C.)
sought to amend the draft by reducing the representation of
the minority party and the Supreme Court in the Electoral
Commission to two members each, so as to accord more
representation to the majority party. The Convention rejected
this amendment by a vote of seventy-six (76) against forty-six
(46), thus maintaining the non-partisan character of the
commission.
As approved on January 31, 1935, the draft was made to read as
follows:
(6) All cases contesting the elections, returns and
qualifications of the Members of the National Assembly
shall be judged by an Electoral Commission, composed
of three members elected by the party having the
largest number of votes in the National Assembly, three
elected by the members of the party having the second
largest number of votes, and three justices of the
Supreme Court designated by the Chief Justice, the
Commission to be presided over by one of said justices.
The Style Committee to which the draft was submitted revised
it as follows:
SEC. 4. There shall be an Electoral Commission
composed of three Justices of the Supreme Court
designated by the Chief Justice, and of six Members
chosen by the National Assembly, three of whom shall
be nominated by the party having the largest number of
votes, and three by the party having the second largest
number of votes therein. The senior Justice in the
Commission shall be its chairman. The Electoral
Commission shall be the sole judge of the election,
returns, and qualifications of the Members of the
National Assembly.
When the foregoing draft was submitted for approval on
February 8, 1935, the Style Committee, through President
Recto, to effectuate the original intention of the Convention,
agreed to insert the phrase "All contests relating to" between
the phrase "judge of" and the words "the elections", which was
accordingly accepted by the Convention.
The transfer of the power of determining the election, returns
and qualifications of the members of the legislature long lodged
in the legislative body, to an independent, impartial and non-
partisan tribunal, is by no means a mere experiment in the
science of government.
Cushing, in his Law and Practice of Legislative Assemblies (ninth
edition, chapter VI, pages 57, 58), gives a vivid account of the
"scandalously notorious" canvassing of votes by political parties
in the disposition of contests by the House of Commons in the
following passages which are partly quoted by the petitioner in
his printed memorandum of March 14, 1936:
153. From the time when the commons established
their right to be the exclusive judges of the elections,
returns, and qualifications of their members, until the
year 1770, two modes of proceeding prevailed, in the
determination of controverted elections, and rights of
membership. One of the standing committees
appointed at the commencement of each session, was
denominated the committee of privileges and elections,
whose functions was to hear and investigate all
questions of this description which might be referred to
them, and to report their proceedings, with their
opinion thereupon, to the house, from time to time.
When an election petition was referred to this
committee they heard the parties and their witnesses
and other evidence, and made a report of all the
evidence, together with their opinion thereupon, in the
form of resolutions, which were considered and agreed
or disagreed to by the house. The other mode of
proceeding was by a hearing at the bar of the house
itself. When this court was adopted, the case was heard
and decided by the house, in substantially the same
manner as by a committee. The committee of privileges
and elections although a select committee. The
committee of privileges and elections although a select
committee was usually what is called an open one; that
is to say, in order to constitute the committee, a
quorum of the members named was required to be
present, but all the members of the house were at
liberty to attend the committee and vote if they
pleased.
154. With the growth of political parties in parliament
questions relating to the right of membership gradually
assumed a political character; so that for many years
previous to the year 1770, controverted elections had
been tried and determined by the house of commons,
as mere party questions, upon which the strength of
contending factions might be tested. Thus, for Example,
in 1741, Sir Robert Walpole, after repeated attacks
upon his government, resigned his office in
consequence of an adverse vote upon the Chippenham
election. Mr. Hatsell remarks, of the trial of election
cases, as conducted under this system, that "Every
principle of decency and justice were notoriously and
openly prostituted, from whence the younger part of
the house were insensibly, but too successfully, induced
to adopt the same licentious conduct in more serious
matters, and in questions of higher importance to the
public welfare." Mr. George Grenville, a distinguished
member of the house of commons, undertook to
propose a remedy for the evil, and, on the 7th of March,
1770, obtained the unanimous leave of the house to
bring in a bill, "to regulate the trial of controverted
elections, or returns of members to serve in
parliament." In his speech to explain his plan, on the
motion for leave, Mr. Grenville alluded to the existing
practice in the following terms: "Instead of trusting to
the merits of their respective causes, the principal
dependence of both parties is their private interest
among us; and it is scandalously notorious that we are
as earnestly canvassed to attend in favor of the
opposite sides, as if we were wholly self-elective, and
not bound to act by the principles of justice, but by the
discretionary impulse of our own inclinations; nay, it is
well known, that in every contested election, many
members of this house, who are ultimately to judge in a
kind of judicial capacity between the competitors, enlist
themselves as parties in the contention, and take upon
themselves the partial management of the very
business, upon which they should determine with the
strictest impartiality."
155. It was to put an end to the practices thus
described, that Mr. Grenville brought in a bill which met
with the approbation of both houses, and received the
royal assent on the 12th of April, 1770. This was the
celebrated law since known by the name of the
Grenville Act; of which Mr. Hatsell declares, that it "was
one of the nobles works, for the honor of the house of
commons, and the security of the constitution, that was
ever devised by any minister or statesman." It is
probable, that the magnitude of the evil, or the
apparent success of the remedy, may have led many of
the contemporaries of the measure to the information
of a judgement, which was not acquiesced in by some
of the leading statesmen of the day, and has not been
entirely confirmed by subsequent experience. The bill
was objected to by Lord North, Mr. De Grey, afterwards
chief justice of the common pleas, Mr. Ellis, Mr. Dyson,
who had been clerk of the house, and Mr. Charles
James Fox, chiefly on the ground, that the introduction
of the new system was an essential alteration of the
constitution of parliament, and a total abrogation of
one of the most important rights and jurisdictions of the
house of commons.
As early as 1868, the House of Commons in England solved the
problem of insuring the non-partisan settlement of the
controverted elections of its members by abdicating its
prerogative to two judges of the King's Bench of the High Court
of Justice selected from a rota in accordance with rules of court
made for the purpose. Having proved successful, the practice
has become imbedded in English jurisprudence (Parliamentary
Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by
Parliamentary Elections and Corrupt Practices Act. 1879 [42 &
43 Vict. c. 75], s. 2; Corrupt and Illegal Practices Preventions Act,
1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act,
1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol.
XXI, p. 787). In the Dominion of Canada, election contests which
were originally heard by the Committee of the House of
Commons, are since 1922 tried in the courts. Likewise, in the
Commonwealth of Australia, election contests which were
originally determined by each house, are since 1922 tried in the
High Court. In Hungary, the organic law provides that all
protests against the election of members of the Upper House of
the Diet are to be resolved by the Supreme Administrative
Court (Law 22 of 1916, chap. 2, art. 37, par. 6). The Constitution
of Poland of March 17, 1921 (art. 19) and the Constitution of
the Free City of Danzig of May 13, 1922 (art. 10) vest the
authority to decide contested elections to the Diet or National
Assembly in the Supreme Court. For the purpose of deciding
legislative contests, the Constitution of the German Reich of July
1, 1919 (art. 31), the Constitution of the Czechoslovak Republic
of February 29, 1920 (art. 19) and the Constitution of the
Grecian Republic of June 2, 1927 (art. 43), all provide for an
Electoral Commission.
The creation of an Electoral Commission whose membership is
recruited both from the legislature and the judiciary is by no
means unknown in the United States. In the presidential
elections of 1876 there was a dispute as to the number of
electoral votes received by each of the two opposing
candidates. As the Constitution made no adequate provision for
such a contingency, Congress passed a law on January 29, 1877
(United States Statutes at Large, vol. 19, chap. 37, pp. 227-229),
creating a special Electoral Commission composed of five
members elected by the Senate, five members elected by the
House of Representatives, and five justices of the Supreme
Court, the fifth justice to be selected by the four designated in
the Act. The decision of the commission was to be binding
unless rejected by the two houses voting separately. Although
there is not much of a moral lesson to be derived from the
experience of America in this regard, judging from the
observations of Justice Field, who was a member of that body
on the part of the Supreme Court (Countryman, the Supreme
Court of the United States and its Appellate Power under the
Constitution [Albany, 1913] — Relentless Partisanship of
Electoral Commission, p. 25 et seq.), the experiment has at least
abiding historical interest.
The members of the Constitutional Convention who framed our
fundamental law were in their majority men mature in years
and experience. To be sure, many of them were familiar with
the history and political development of other countries of the
world. When , therefore, they deemed it wise to create an
Electoral Commission as a constitutional organ and invested it
with the exclusive function of passing upon and determining the
election, returns and qualifications of the members of the
National Assembly, they must have done so not only in the light
of their own experience but also having in view the experience
of other enlightened peoples of the world. The creation of the
Electoral Commission was designed to remedy certain evils of
which the framers of our Constitution were cognizant.
Notwithstanding the vigorous opposition of some members of
the Convention to its creation, the plan, as hereinabove stated,
was approved by that body by a vote of 98 against 58. All that
can be said now is that, upon the approval of the constitutional
the creation of the Electoral Commission is the expression of
the wisdom and "ultimate justice of the people". (Abraham
Lincoln, First Inaugural Address, March 4, 1861.)
From the deliberations of our Constitutional Convention it is
evident that the purpose was to transfer in its totality all the
powers previously exercised by the legislature in matters
pertaining to contested elections of its members, to an
independent and impartial tribunal. It was not so much the
knowledge and appreciation of contemporary constitutional
precedents, however, as the long-felt need of determining
legislative contests devoid of partisan considerations which
prompted the people, acting through their delegates to the
Convention, to provide for this body known as the Electoral
Commission. With this end in view, a composite body in which
both the majority and minority parties are equally represented
to off-set partisan influence in its deliberations was created, and
further endowed with judicial temper by including in its
membership three justices of the Supreme Court.
The Electoral Commission is a constitutional creation, invested
with the necessary authority in the performance and execution
of the limited and specific function assigned to it by the
Constitution. Although it is not a power in our tripartite scheme
of government, it is, to all intents and purposes, when acting
within the limits of its authority, an independent organ. It is, to
be sure, closer to the legislative department than to any other.
The location of the provision (section 4) creating the Electoral
Commission under Article VI entitled "Legislative Department"
of our Constitution is very indicative. Its compositions is also
significant in that it is constituted by a majority of members of
the legislature. But it is a body separate from and independent
of the legislature.
The grant of power to the Electoral Commission to judge all
contests relating to the election, returns and qualifications of
members of the National Assembly, is intended to be as
complete and unimpaired as if it had remained originally in the
legislature. The express lodging of that power in the Electoral
Commission is an implied denial of the exercise of that power
by the National Assembly. And this is as effective a restriction
upon the legislative power as an express prohibition in the
Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1;
State vs. Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we concede
the power claimed in behalf of the National Assembly that said
body may regulate the proceedings of the Electoral Commission
and cut off the power of the commission to lay down the period
within which protests should be filed, the grant of power to the
commission would be ineffective. The Electoral Commission in
such case would be invested with the power to determine
contested cases involving the election, returns and
qualifications of the members of the National Assembly but
subject at all times to the regulative power of the National
Assembly. Not only would the purpose of the framers of our
Constitution of totally transferring this authority from the
legislative body be frustrated, but a dual authority would be
created with the resultant inevitable clash of powers from time
to time. A sad spectacle would then be presented of the
Electoral Commission retaining the bare authority of taking
cognizance of cases referred to, but in reality without the
necessary means to render that authority effective whenever
and whenever the National Assembly has chosen to act, a
situation worse than that intended to be remedied by the
framers of our Constitution. The power to regulate on the part
of the National Assembly in procedural matters will inevitably
lead to the ultimate control by the Assembly of the entire
proceedings of the Electoral Commission, and, by indirection, to
the entire abrogation of the constitutional grant. It is obvious
that this result should not be permitted.
We are not insensible to the impassioned argument or the
learned counsel for the petitioner regarding the importance and
necessity of respecting the dignity and independence of the
national Assembly as a coordinate department of the
government and of according validity to its acts, to avoid what
he characterized would be practically an unlimited power of the
commission in the admission of protests against members of
the National Assembly. But as we have pointed out
hereinabove, the creation of the Electoral Commission carried
with it ex necesitate rei the power regulative in character to
limit the time with which protests intrusted to its cognizance
should be filed. It is a settled rule of construction that where a
general power is conferred or duty enjoined, every particular
power necessary for the exercise of the one or the performance
of the other is also conferred (Cooley, Constitutional
Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any
further constitutional provision relating to the procedure to be
followed in filing protests before the Electoral Commission,
therefore, the incidental power to promulgate such rules
necessary for the proper exercise of its exclusive power to judge
all contests relating to the election, returns and qualifications of
members of the National Assembly, must be deemed by
necessary implication to have been lodged also in the Electoral
Commission.
It is, indeed, possible that, as suggested by counsel for the
petitioner, the Electoral Commission may abuse its regulative
authority by admitting protests beyond any reasonable time, to
the disturbance of the tranquillity and peace of mind of the
members of the National Assembly. But the possibility of abuse
is not argument against the concession of the power as there is
no power that is not susceptible of abuse. In the second place, if
any mistake has been committed in the creation of an Electoral
Commission and in investing it with exclusive jurisdiction in all
cases relating to the election, returns, and qualifications of
members of the National Assembly, the remedy is political, not
judicial, and must be sought through the ordinary processes of
democracy. All the possible abuses of the government are not
intended to be corrected by the judiciary. We believe, however,
that the people in creating the Electoral Commission reposed as
much confidence in this body in the exclusive determination of
the specified cases assigned to it, as they have given to the
Supreme Court in the proper cases entrusted to it for decision.
All the agencies of the government were designed by the
Constitution to achieve specific purposes, and each
constitutional organ working within its own particular sphere of
discretionary action must be deemed to be animated with the
same zeal and honesty in accomplishing the great ends for
which they were created by the sovereign will. That the
actuations of these constitutional agencies might leave much to
be desired in given instances, is inherent in the perfection of
human institutions. In the third place, from the fact that the
Electoral Commission may not be interfered with in the exercise
of its legitimate power, it does not follow that its acts, however
illegal or unconstitutional, may not be challenge in appropriate
cases over which the courts may exercise jurisdiction.
But independently of the legal and constitutional aspects of the
present case, there are considerations of equitable character
that should not be overlooked in the appreciation of the
intrinsic merits of the controversy. The Commonwealth
Government was inaugurated on November 15, 1935, on which
date the Constitution, except as to the provisions mentioned in
section 6 of Article XV thereof, went into effect. The new
National Assembly convened on November 25th of that year,
and the resolution confirming the election of the petitioner,
Jose A. Angara was approved by that body on December 3,
1935. The protest by the herein respondent Pedro Ynsua against
the election of the petitioner was filed on December 9 of the
same year. The pleadings do not show when the Electoral
Commission was formally organized but it does appear that on
December 9, 1935, the Electoral Commission met for the first
time and approved a resolution fixing said date as the last day
for the filing of election protest. When, therefore, the National
Assembly passed its resolution of December 3, 1935, confirming
the election of the petitioner to the National Assembly, the
Electoral Commission had not yet met; neither does it appear
that said body had actually been organized. As a mater of fact,
according to certified copies of official records on file in the
archives division of the National Assembly attached to the
record of this case upon the petition of the petitioner, the three
justices of the Supreme Court the six members of the National
Assembly constituting the Electoral Commission were
respectively designated only on December 4 and 6, 1935. If
Resolution No. 8 of the National Assembly confirming non-
protested elections of members of the National Assembly had
the effect of limiting or tolling the time for the presentation of
protests, the result would be that the National Assembly — on
the hypothesis that it still retained the incidental power of
regulation in such cases — had already barred the presentation
of protests before the Electoral Commission had had time to
organize itself and deliberate on the mode and method to be
followed in a matter entrusted to its exclusive jurisdiction by
the Constitution. This result was not and could not have been
contemplated, and should be avoided.
From another angle, Resolution No. 8 of the National Assembly
confirming the election of members against whom no protests
had been filed at the time of its passage on December 3, 1935,
can not be construed as a limitation upon the time for the
initiation of election contests. While there might have been
good reason for the legislative practice of confirmation of the
election of members of the legislature at the time when the
power to decide election contests was still lodged in the
legislature, confirmation alone by the legislature cannot be
construed as depriving the Electoral Commission of the
authority incidental to its constitutional power to be "the sole
judge of all contest relating to the election, returns, and
qualifications of the members of the National Assembly", to fix
the time for the filing of said election protests. Confirmation by
the National Assembly of the returns of its members against
whose election no protests have been filed is, to all legal
purposes, unnecessary. As contended by the Electoral
Commission in its resolution of January 23, 1936, overruling the
motion of the herein petitioner to dismiss the protest filed by
the respondent Pedro Ynsua, confirmation of the election of any
member is not required by the Constitution before he can
discharge his duties as such member. As a matter of fact,
certification by the proper provincial board of canvassers is
sufficient to entitle a member-elect to a seat in the national
Assembly and to render him eligible to any office in said body
(No. 1, par. 1, Rules of the National Assembly, adopted
December 6, 1935).
Under the practice prevailing both in the English House of
Commons and in the Congress of the United States,
confirmation is neither necessary in order to entitle a member-
elect to take his seat. The return of the proper election officers
is sufficient, and the member-elect presenting such return
begins to enjoy the privileges of a member from the time that
he takes his oath of office (Laws of England, vol. 12, pp. 331.
332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26).
Confirmation is in order only in cases of contested elections
where the decision is adverse to the claims of the protestant. In
England, the judges' decision or report in controverted elections
is certified to the Speaker of the House of Commons, and the
House, upon being informed of such certificate or report by the
Speaker, is required to enter the same upon the Journals, and to
give such directions for confirming or altering the return, or for
the issue of a writ for a new election, or for carrying into
execution the determination as circumstances may require (31
& 32 Vict., c. 125, sec. 13). In the United States, it is believed,
the order or decision of the particular house itself is generally
regarded as sufficient, without any actual alternation or
amendment of the return (Cushing, Law and Practice of
Legislative Assemblies, 9th ed., sec. 166).
Under the practice prevailing when the Jones Law was still in
force, each house of the Philippine Legislature fixed the time
when protests against the election of any of its members should
be filed. This was expressly authorized by section 18 of the
Jones Law making each house the sole judge of the election,
return and qualifications of its members, as well as by a law
(sec. 478, Act No. 3387) empowering each house to respectively
prescribe by resolution the time and manner of filing contest in
the election of member of said bodies. As a matter of formality,
after the time fixed by its rules for the filing of protests had
already expired, each house passed a resolution confirming or
approving the returns of such members against whose election
no protests had been filed within the prescribed time. This was
interpreted as cutting off the filing of further protests against
the election of those members not theretofore contested
(Amistad vs. Claravall [Isabela], Second Philippine Legislature,
Record — First Period, p. 89; Urguello vs. Rama [Third District,
Cebu], Sixth Philippine Legislature; Fetalvero vs. Festin
[Romblon], Sixth Philippine Legislature, Record — First Period,
pp. 637-640; Kintanar vs. Aldanese [Fourth District, Cebu], Sixth
Philippine Legislature, Record — First Period, pp. 1121, 1122;
Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature,
Record — First Period, vol. III, No. 56, pp. 892, 893). The
Constitution has repealed section 18 of the Jones Law. Act No.
3387, section 478, must be deemed to have been impliedly
abrogated also, for the reason that with the power to
determine all contest relating to the election, returns and
qualifications of members of the National Assembly, is
inseparably linked the authority to prescribe regulations for the
exercise of that power. There was thus no law nor constitutional
provisions which authorized the National Assembly to fix, as it is
alleged to have fixed on December 3, 1935, the time for the
filing of contests against the election of its members. And what
the National Assembly could not do directly, it could not do by
indirection through the medium of confirmation.
Summarizing, we conclude:
(a) That the government established by the Constitution
follows fundamentally the theory of separation of
power into the legislative, the executive and the
judicial.
(b) That the system of checks and balances and the
overlapping of functions and duties often makes
difficult the delimitation of the powers granted.
(c) That in cases of conflict between the several
departments and among the agencies thereof, the
judiciary, with the Supreme Court as the final arbiter, is
the only constitutional mechanism devised finally to
resolve the conflict and allocate constitutional
boundaries.
(d) That judicial supremacy is but the power of judicial
review in actual and appropriate cases and
controversies, and is the power and duty to see that no
one branch or agency of the government transcends the
Constitution, which is the source of all authority.
(e) That the Electoral Commission is an independent
constitutional creation with specific powers and
functions to execute and perform, closer for purposes
of classification to the legislative than to any of the
other two departments of the governments.
(f ) That the Electoral Commission is the sole judge of all
contests relating to the election, returns and
qualifications of members of the National Assembly.
(g) That under the organic law prevailing before the
present Constitution went into effect, each house of the
legislature was respectively the sole judge of the
elections, returns, and qualifications of their elective
members.
(h) That the present Constitution has transferred all the
powers previously exercised by the legislature with
respect to contests relating to the elections, returns and
qualifications of its members, to the Electoral
Commission.
(i) That such transfer of power from the legislature to
the Electoral Commission was full, clear and complete,
and carried with it ex necesitate rei the implied
power inter alia to prescribe the rules and regulations
as to the time and manner of filing protests.
( j) That the avowed purpose in creating the Electoral
Commission was to have an independent constitutional
organ pass upon all contests relating to the election,
returns and qualifications of members of the National
Assembly, devoid of partisan influence or consideration,
which object would be frustrated if the National
Assembly were to retain the power to prescribe rules
and regulations regarding the manner of conducting
said contests.
(k) That section 4 of article VI of the Constitution
repealed not only section 18 of the Jones Law making
each house of the Philippine Legislature respectively the
sole judge of the elections, returns and qualifications of
its elective members, but also section 478 of Act No.
3387 empowering each house to prescribe by resolution
the time and manner of filing contests against the
election of its members, the time and manner of
notifying the adverse party, and bond or bonds, to be
required, if any, and to fix the costs and expenses of
contest.
We hold, therefore, that the Electoral Commission was acting
within the legitimate exercise of its constitutional prerogative in
assuming to take cognizance of the protest filed by the
respondent Pedro Ynsua against the election of the herein
petitioner Jose A. Angara, and that the resolution of the
National Assembly of December 3, 1935 can not in any manner
toll the time for filing protests against the elections, returns and
qualifications of members of the National Assembly, nor
prevent the filing of a protest within such time as the rules of
the Electoral Commission might prescribe.
In view of the conclusion reached by us relative to the character
of the Electoral Commission as a constitutional creation and as
to the scope and extent of its authority under the facts of the
present controversy, we deem it unnecessary to determine
whether the Electoral Commission is an inferior tribunal,
corporation, board or person within the purview of sections 226
and 516 of the Code of Civil Procedure.
The petition for a writ of prohibition against the Electoral
Commission is hereby denied, with costs against the petitioner.
So ordered.

(l) That confirmation by the National Assembly of the

election is contested or not, is not essential before such
member-elect may discharge the duties and enjoy the
privileges of a member of the National Assembly.

(m) That confirmation by the National Assembly of the

election of any member against whom no protest had
been filed prior to said confirmation, does not and
cannot deprive the Electoral Commission of its
incidental power to prescribe the time within which
protests against the election of any member of the
National Assembly should be filed.
G.R. No. L-38025 August 20, 1979
DANTE O. CASIBANG, petitioner,
vs.
HONORABLE NARCISO A. AQUINO, Judge of the Court of First
Instance of Pangasinan, Branch XIV, and REMEGIO P.
YU, respondents.
MAKASIAR, J.:
Respondent Remigio P. Yu was proclaimed on November 9,
1971 as the elected Mayor of Rosales, Pangasinan in the 1971
local elections, by a plurality of 501 votes over his only rival,
herein petitioner, who seasonably filed on November 24, 1971 a
protest against the election of the former with the Court of First
Instance of Pangasinan, on the grounds of (1) anomalies and
irregularities in the appreciation, counting and consideration of
votes in specified electoral precincts; (2) terrorism; (3) rampant
vote buying; (4) open voting or balloting; and (5) excessive
campaign expenditures and other violations of the 1971
Election Code.
Respondent Yu filed on November 29, 1971 his answer and
counter-protest which petitioner answered on December 10,
1971. However, respondent Yu withdrew his counter-protest
after waiving the opening and revision of the ballot boxes
specified therein.
Proceedings therein continued with respect to the election
protest of petitioner before the Court of First Instance of
Pangasinan, Branch XIV, presided by respondent Judge, who
initially took cognizance of the same as it is unquestionably a
justiciable controversy.
In the meantime or on September 21, 1972, the incumbent
President of the Republic of the Philippines issued Proclamation
No. 1081, placing the entire country under Martial Law; and two
months thereafter, more or less, or specifically on November
29, 1972, the 1971 Constitutional Convention passed and
approved a Constitution to supplant the 1935 Constitution; and
the same was thereafter overwhelmingly ratified by the
sovereign people of the Republic of the Philippines on January
17, 1973; and on March 31, 1973, this Court declared that
"there is no further judicial obstacle to the new Constitution
being considered in force and effect" (Javellana vs. Executive
Secretary, 50 SCRA 30 [1973]).
Thereafter or on October 10, 1973, at which time petitioner had
already completed presenting his evidence and in fact had
rested his case, respondent Yu moved to dismiss the election
protest of petitioner on the ground that the trial court had lost
jurisdiction over the same in view of the effectivity of the 1973
Constitution by reason of which — principally) Section 9 of
Article XVII [Transitory Provisions] and Section 2 of Article XI —
a political question has intervened in the case. Respondent Yu
contended that "... the provisions in the 1935 Constitution
relative to all local governments have been superseded by the
1973 Constitution. Therefore, all local government should
adhere to our parliamentary form of government. This is clear in
the New Constitution under its Article XI." He further submitted
that local elective officials (including mayors) have no more
four-year term of office. They are only in office at the pleasure
of the appointing power embodied in the New Constitution, and
under Section 9 of Article XVII.
Petitioner vigorously opposed the motion to dismiss, and,
relying mainly on Sections 7 and 8 of Article XVII (Transitory
Provisions) of the New Constitution and G.O. No. 3, contended
that the New Constitution did not divest the Court of First
Instance of its jurisdiction to hear and decide election protests
pending before them at the time of its ratification and
effectivity; that the ratification of the New Constitution and its
effectivity did not automatically abolish the office and position
of municipal mayor nor has it automatically cut short the tenure
of the office, so as to render the issue as to who is the lawfully
elected candidate to said office or position moot and academic;
that election protests involve public interest such that the same
must be heard until terminated and may not be dismissed on
mere speculation that the office involved may have been
abolished, modified or reorganized; and that the motion to
dismiss was filed manifestly for delay.
Respondent Yu replied pointing out, among others, that
petitioner failed to refute the issue of political question; and
reiterated his stand, expanding his arguments on the political
question, thus:
It is an undeniable fact that this case has its source from
the 1971 elections for municipal mayoralty. Unsatisfied
with the counting of votes held by the Board of
Canvassers, the herein protestant filed this present
case. And before the termination of the same and
pending trial, the Filipino people in the exercise of their
free will and sovereign capacity approved a NEW
CONSTITUTION, thus a NEW FORM OF GOVERNMENT-
PARLIAMENTARY IN FORM was enforced. We find this
provision under Article XI of the New Constitution,
which provides:
SEC. 2. The National Assembly shall enact a local
government code which may not thereafter be
amended except by a majority vote of all its
members, defining a more responsive and
accountable local government structure with an
effective system of recall, allocating among the
different local government units their powers,
responsibilities, and resources, and providing
for the qualifications, election and removal,
term, salaries, powers, functions, and duties of
local officials, and all other matters relating to
the organization and operation of the local
units. However, any change in the existing form
of local government shall not take effect until
ratified by a majority of the votes cast in a
plebiscite called for the purpose.
It is respectfully submitted that the contention
of the protestant to the effect that the New
Constitution "shows that the office of the
 Municipal Mayor has not been abolished ... ," is
not ACCURATE. Otherwise, the provisions of
Section 9 of Article XVII, is meaningless.
All officials and employees in the existing
Government of the Republic shall continue in
office until otherwise provided by law or
decreed by the incumbent President of the
Philippines, ...
In the above-quoted provision is the protection of the
officials and employees working in our government,
otherwise, by the force of the New Constitution they
are all out of the government offices. In fact, in the case
above-cited (Javellana) we are all performing our duties
in accordance with the New Constitution.
Therefore, election cases of the 1935 Constitution being
interwoven in the political complexion of our new
Constitution should be dismissed because only those
incumbent official and employees existing in the new
government are protected by the transitional provisions
of the New Fundamental Law of the Land. The
protestant, we respectfully submit, is not covered by
the provisions of Section 9 Article XVII of the
Constitution. And in case he will win in this present case
he has no right to hold the position of mayor of the
town of Rosales, Pangasinan, because he was not then
an official of the government at the time the New
Constitution was approved by the Filipino People. His
right if proclaimed a winner is derived from the 1935
Constitution which is changed by the Filipino people.
On December 18, 1973, the trial court, presided by respondent
Judge, sustained the political question theory of respondent Yu
and ordered the dismissal of the electoral protest. Thus:
There is no dispute that the Filipino people have
accepted and submitted to a new Constitution to
replace the 1935 Constitution, and that we are now
living under its aegis and protection. ...
xxx xxx xxx
Under Section 9, Article XVII, of the new Constitution,
above-quoted, only those officials and employees of the
existing Government of the Republic of the Philippines
like the protestee herein, are given protection and are
authorized to continue in office at the pleasure of the
incumbent President of the Philippines, while under
Section 2 of Article XI of the new Constitution, also
above-quoted, the intention of completely revamp the
whole local government structure, providing for
different qualifications, election and removal, term,
salaries, powers, functions, and duties, is very clear.
These present questions of policy, the necessity and
expediency of which are outside the range of judicial
review. With respect to the fate of incumbent oficials
and employees in the existing Government of the
Republic of the Philippines, as well as to the
qualifications, election and removal, term of office,
salaries, and powers of all local officials under the
parliamentary form of government — these have been
entrusted or delegated by the sovereign people or has
reserved it to be settled by the incumbent Chief
Executive or by the National Assembly with full
discretionary authority therefor. As if to supplement
these delegated powers, the people have also decreed
in a referendum the suspension of all elections. Thus, in
the United States, questions relating to what persons or
organizations constituted the lawful government of a
state of the Union (Luther vs. Borden, 7 How. 1, 12, L.
Ed 58), and those relating to the political status of a
state (Highland Farms Dairy vs. Agnew, 57 S. et 549, 300
U.S. 608, 81 L.ed 835), have been held to be political
and for the judiciary to determine.
To the mind of the Court, therefore, the
ratification and effectivity of the new
Constitution has tainted this case with a
political complexion above and beyond the
power of judicial review. As fittingly
commented by Mr. Justice Antonio in a
separate opinion in the Javellana, et al. cases,
69 0. G. No. 36, September 3, 1973, p. 8008:
The essentially political nature of the
question is at once manifest by
understanding that in the final analysis,
what is assailed is not merely the
validity of Proclamation No. 1102 of the
President, which is merely declaratory
of the fact of the approval or
ratification, but the legitimacy of the
government. It is addressed more to
the frame-work and political character
of this government which now
functions under the new Charter. It
seeks to nullify a Constitution that is
already effective. In other words, where
a complete change in the fundamental
law has been effected through political
action, the Court whose existence is
affected by such a change is, in the
words of Mr. Meville Fuller Weston
"precluded from passing upon the fact
of change by a logical difficulty which is
not to be surmounted as the change
relates to the existence of a prior point
in the Court's "chain of title" to its
authority and "does not relate merely
to a question of the horizontal
distribution of powers." It involves a
matter which 'the sovereign has
entrusted to the so-called political
departments or has reserved to be
settled by its own extra-governmental
action." The present Government
functions under the new Constitution
 which has become effective through
political action. Judicial power
presupposes an established
government and an effective
constitution. If it decides at all as a
court, it necessarily affirms the
existence and authority of the
Government under which it is exercising
judicial power.
The Court is not unaware of provisions of the new
Constitution, particularly Sections 7 and 8, Article XVII
(Transitory Provisions) decreeing that all existing laws
not inconsistent with the new Constitution shall remain
operative until amended, modified, or repealed by the
National Assembly, and that all courts existing at the
time of the ratification of the said new Constitution
shall continue and exercise their jurisdiction until
otherwise provided by law in accordance with the new
Constitution, and all cases pending in said courts shall
be heard, tried and determined under the laws then in
force. Again, to the mind of the Court, these refer to
matters raised in the enforcement of existing laws or in
the invocation of a court's jurisdiction which have not
been "entrusted to the so-called political department or
has reserved to be settled by its own extra
governmental action.
Hence, this petition.
We reverse.
The thrust of the aforesaid political question theory of
respondent Yu is that the 1973 Constitution, through Section 9
of Article XVII thereof, protected only those incumbents, like
him, at the time of its ratification and effectivity and are the
only ones authorized to continue in office and their term of
office as extended now depends on the pleasure of, as the same
has been entrusted or committed to, the incumbent President
of the Philippines or the Legislative Department; and that
Section 2 of Article XI thereof entrusted to the National
Assembly the revamp of the entire local government structure
by the enactment of a local government code, thus presenting a
question of policy, the necessity and expediency of which are
outside the range of judicial review. In short, for the respondent
Judge to still continue assuming jurisdiction over the pending
election protest of petitioner is for him to take cognizance of a
question or policy "in regard to which full discretionary
authority has been delegated to the Legislative or Executive
branch of the government."
I and Valley cases, supra).
There is an imperative need to re-state pronouncements of this
Court on the new Constitution which are decisive in the
resolution of the political question theory of respondent Yu.
WE ruled:
1. That Section 9 of Article XVII of the 1973 Constitution did not
render moot and academic pending election protest cases
(Santos vs. Castañeda, 65 SCRA 114 [1975]; Euipilag vs. Araula,
60 SCRA 211 [1974]; Nunez vs. Averia, 57 SCRA 726 [1974];
Parades vs. Abad, L-36927, Sunga vs. Mosueda, L-37715, Valley
vs. Caro, L-38331, 56 SCRA 522, [1974]).
2. That "the constitutional grant of privilege to continue in
office, made by the new Constitution for the benefit of persons
who were incumbent officials or employees of the Government
when the new Constitution took effect, cannot be fairly
construed as indiscriminately encompassing every person who
at the time happened to be performing the duties of an elective
office, albeit under protest or contest" and that "subject to the
constraints specifically mentioned in Section 9, Article XVII of
the Transitory Provisions, it neither was, nor could have been
the intention of the framers of our new fundamental law to
disregard and shunt aside the statutory right of a condidate for
elective position who, within the time-frame prescribed in the
Election Code of 1971, commenced proceedings beamed mainly
at the proper determination in a judicial forum of a proclaimed
candidate-elect's right to the contested office."' (Santos vs.
Castañeda, supra); and We rationalized that "the Constitutional
Convention could not have intended, as in fact it .did not
intend, to shielf or protect those who had been unduly elected.
To hold that the right of the herein private respondents to the
respective offices which they are now holding, may no longer be
subject to question, would be tantamount to giving a stamp of
approval to what could have been an election victory
characterized by fraud, threats, intimidation, vote buying, or
other forms of irregularities prohibited by the Election Code to
preserve inviolate the sanctity of the ballot." (Parades, Sunga
3. That "the right of the private respondents (protestees) to
continue in office indefinitely arose not only by virtue of Section
9 of Article XVII of the New Constitution but principally from
their having been proclaimed elected to their respective
positions as a result of the November 8, 1971 elections.
Therefore, if in fact and in law, they were not duly elected to
their respective positions and consequently, have no right to
hold the same, perform their functions, enjoy their privileges
and emoluments, then certainly, they should not be allowed to
enjoy the indefinite term of office given to them by said
constitutional provision" (Parades, Sunga and Valley
cases, supra).
4. That "until a subsequent law or presidential decree provides
otherwise, the right of respondent (protestee) to continue as
mayor rests on the legality of his election which has been
protested by herein petitioner. Should the court decide
adversely against him the electoral protest, respondent
(protestee) would cease to be mayor even before a law or
presidential decree terminates his tenure of office pursuant to
said Section 9 of Article XVII of the 1973 Constitution"
(Euipilag, supra).
5. That "there is a difference between the 'term' of office and
the 'right' to hold an office. A 'term' of office is the period
during winch an elected officer or appointee is entitled to hold
office, perform its functions and enjoy its privileges and
emoluments. A 'right' to hold a public office is the just and legal
claim to hold and enjoy the powers and responsibilities of the
office. In other words, the 'term' refers to the period, duration
of length of time during which the occupant of an office is
.entitled to stay therein whether such period be definite or
indefinite. Hence, although Section 9, Article XVII of the New
Constitution made the term of the petitioners indefinite, it did
not foreclose any challenge by the herein petitioners, in an
election protest, of the 'right' of the private respondents to
continue holding their respective office. What has been directly
affected by said constitutional provision is the 'term' to the
office, although the 'right' of the incumbent to an office which
he is legally holding is co-extensive with the 'term' thereof," and
that "it is erroneous to conclude that under Section 9, Article
XVII of the New Constitution, the term of office of the private
respondents expired, and that they are now holding their
respective offices under a new term. We are of the opinion that
they hold their respective offices still under the term to which
they have been elected, although the same is now indefinite"
(Parades, Sunga and Valley cases, supra).
6. That the New Constitution recognized the continuing
jurisdiction of courts of first instance to hear, try and decide
election protests: "Section 7 of Article XVII of the New
Constitution provides that 'all existing laws not inconsistent
with this Constitution shall remain operative until amended,
modified or repealed by the National Assembly. 'And there has
been no amendment, modification or repeal of Section 220 of
the Election Code of 1971 which gave the herein petitioners the
right to file an election contest against those proclaimed
elected," and "according to Section 8, Article XVII of the New
Constitution 'all courts existing at the time of the ratification of
this Constitution shall continue and exercise their jurisdiction
until otherwise provided by law in accordance with this
Constitution, and all cases pending in said courts shall be heard,
tried and determined under the laws then in force.'
Consequently, the Courts of First Instance presided over by the
respondent-Judges should continue and exercise their
jurisdiction to hear, try and decide the election protests filed by
herein petitioners" (Santos, Euipilag, Nunez, Parades, Sunga and
Valley cases, supra).
While under the New Constitution the Commission on Elections
is now the sole judge of all contests relating to the elections,
returns, and qualifications of members of the National
Assembly as well as elective provincial and city officials (par. 2
of Sec. 2, Article XII-C of the 1973 Constitution), such power
does not extend to electoral contests concerning municipal
elective positions.
7. That General Order No. 3, issued by the President of the
Philippines merely reiterated his powers under Section 9 of
Article XVII of the New Constitution. The President did not
intend thereby to modify the aforesaid constitutional provision
(Euipilag, supra).
General Order No. 3, as amended by General Order No. 3-A,
does not expressly include electoral contests of municipal
elective positions as among those removed from the jurisdiction
of the courts; for said General Order, after affirming the
jurisdiction of the Judiciary to decide in accordance with the
existing laws on criminal and civil cases, simply removes from
the jurisdiction of the Civil Court certain crimes specified therein
as well as the validity, legality or constitutionality of any decree,
order or acts issued by the President or his duly designated
representative or by public servants pursuant to his decrees and
orders issued under Proclamation No. 1081.
8. That General Order No. 3 may not be invoked by the courts to
avoid exercise of their jurisdiction because to do co "is nothing
short of unwarranted abdication of judicial', authority, which no
judge duly imbued with the implications of the paramount
principle of independence of the judiciary should ever think of
doing. It is unfortunate indeed that respondent Judge is
apparently unaware that it is a matter of highly significant
historical fact that this Court has always deemed General Order
No. 3 including its amendment by General Order No. 3-A as
practically inoperative even in the light of Proclamation No.
1081 of September 21, 1972 and Proclamation No. 1104 of
January 17, 1973, placing the whole Philippines under martial
law. While the members of the Court are not agreed on
whether or not particular instances of attack against the validity
of certain Presidential decrees raise political questions which
the Judiciary would not interfere with, there is unanimity
among Us in the view that it is for the Court rather than the
Executive to determine whether or not We may take cognizance
of any given case involving the validity of acts of the Executive
Department purportedly under the authority of the martial law
proclamations" (Lina vs. Purisima, 3 PHILAJUR 605, 610-611, 82
SCRA 344 [1978]).
II
1. In the light of the foregoing pronouncements, We hold that
the electoral protest case herein involved has remained a
justiciable controversy. No political question has ever been
interwoven into this case. Nor is there any act of the incumbent
President or the Legislative Department to be indirectly
reviewed or interfered with if the respondent Judge decides the
election protest. The term "political question" connotes what it
means in ordinary parlance, namely, a question of policy. It
refers to those questions which under the Constitution, are to
be decided by the people in their sovereign capacity; or in
regard to which full discretionary authority has been delegated
to the legislative or executive branch of the government. It is
concerned with issues dependent upon the wisdom, not
legality, of a particular measure" (Tañada vs. Cuenco, L-1052,
Feb. 28, 1957). A broader definition was advanced by U.S.
Supreme Court Justice Brennan in Baker vs. Carr (369 U.S. 186
[1962]): "Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for non-
judicial discretion; or the impossibility of a court's undertaking
independent resolution without expressing lack of respect due
coordinate branches of the government; or an unusual need for
unquestioning adherence to a political decision already made;
or the potentiality of embarrassment from multifarious
pronouncements by various departments on one question" (p.
217). And Chief Justice Enrique M. Fernando, then an Associate
Justice, of this Court fixed the limits of the term, thus: "The
term has been made applicable to controversies clearly non-
judicial and therefore beyond its jurisdiction or to an issue
involved in a case appropriately subject to its cognizance, as to
which there has been a prior legislative or executive
determination to which deference must be paid (Cf. Vera vs.
Avelino, 77 Phil. 192 [1946]; Lopez vs. Roxas, L-25716, July 28,
1966, 17 SCRA 756; Gonzales vs. Commission on Elections, L-
28196, Nov. 9, 1967, 21 SCRA 774). It 'has likewise been
employed loosely to characterize a suit where the party
proceeded against is the President or Congress, or any branch
thereof (Cf. Planas vs. Gil, 67 Phil. 62 [1937]; Vera vs. Avelino, 77
Phil. 192 [1946]). If to be delimited with accuracy; 'political
questions' should refer to such as would under the Constitution
be decided by the people in their sovereign capacity or in regard
to which full discretionary authority is vested either in the
President or Congress. It is thus beyond the competence of the
judiciary to pass upon. ..." (Lansang vs. Garcia, 42 SCRA 448,
504-505 [1971]).
2. The only issue in the electoral protest case dismissed by
respondent Judge on the ground of political question is who
between protestant — herein petitioner — and protestee —
herein respondent Yu — was the duly elected mayor of Rosales,
Pangasinan, and legally entitled to enjoy the rights, privileges
and emoluments appurtenant thereto and to discharge the
functions, duties and obligations of the position. If the
protestee's election is upheld by the respondent Judge, then he
continues in office; otherwise, it is the protestant, herein
petitioner. That is the only consequence of a resolution of the
issue therein involved — a purely justiciable question or
controversy as it implies a given right, legally demandable and
enforceable, an act or ommission violative of said right, and a
remedy, granted or sanctioned by law, for said breach of right
(Tan vs. Republic, 107 Phil. 632-633 [1960]). Before and after
the ratification and effectivity of the New Constitution, the
nature of the aforesaid issue as well as the consequences of its indefinite term of the disputed office of mayor of Rosales,
resolution by the Court, remains the same as above-stated. Pangasinan in the existing set-up of local government in this
country; subject always to whatever change or modification the
3. Any judgment to be made on that issue will not in any way National Assembly will introduce when it will enact the local
collide or interfere with the mandate of Section 9 of Article XVII government code.
of the New Constitution, as it will merely resolve who as
between protestant and protestee is the duly elected mayor of III
Rosales, Pangasinan; hence, entitled to enjoy the extended term
as mandated by said provision of the New Constitution. As The construction made by respondent Judge of Sections 7 and 8
construed by this Court, the elective officials referred to in of Article XVII of the New Constitution "... that these refer to
Section 9 of Article XVII are limited to those duly elected as the matters raised in the enforcement of existing laws or in the
right to said extended term was not personal to whosoever was invocation of a court's jurisdiction which have not been
incumbent at the time of the ratification and effectivity of the 'entrusted to the so-called political department or reserved to
New Constitution. Nor would such judgment preempt, collide or be settled by its own extra-governmental action,"' strained as it
interfere with the power or discretion entrusted by the New is, cannot be sustained in view of the result herein reached on
Constitution to the incumbent President or the Legislative the issue of political question as well as Our previous
Department, with respect to the extended term of the duly pronouncements as above restated on the same Sections 7 and
elected incumbents; because whoever between protestant and 8 of the New Constitution.
protestee is declared the duly elected mayor will be subject
always to whatever action the President or the Legislative WHEREFORE, RESPONDENT COURT'S ORDER OF DISMISSAL IS
Department will take pursuant thereto. HEREBY SET ASIDE AND THE RESPONDENT COURT IS DIRECTED
TO IMMEDIATELY PROCEED WITH THE TRIAL AND
4. Neither does Section 2 of Article XI stigmatize the issue in DETERMINATION OF THE ELECTION PROTEST BEFORE IT ON THE
that electoral protest case with a political color. For simply, that MERITS. THIS DECISION SHALL BE IMMEDIATELY EXECUTORY
section allocated unto the National Assembly the power to UPON PROMULGATION HEREOF. NO COSTS.
enact a local government code "which may not thereafter be
amended except by a majority of all its Members, defining a
more responsive and accountable local government allocating
among the different local government units their powers,
responsibilities, and resources, and providing for their
qualifications, election and removal, term, salaries, powers,
functions and duties of local officials, and all other matters
relating to the organization and operation of the local units" but
"... any change in the existing form of local government shall not
take effect until ratified by a majority of the votes cast in a
plebiscite called for the purpose." It is apparent at once that
such power committed by the New Constitution to the National
Assembly will not be usurped or preempted by whatever ruling
or judgment the respondent Judge will render in the electoral
protest case. Whoever will prevail in that contest will enjoy the
G.R. No. L-10520 February 28, 1957
LORENZO M. TAÑADA and DIOSDADO
MACAPAGAL, petitioners,
vs.
MARIANO JESUS CUENCO, FRANCISCO A. DELGADO, ALFREDO
CRUZ, CATALINA CAYETANO, MANUEL SERAPIO, PLACIDO
REYES, and FERNANDO HIPOLITO in his capacity as cashier and
disbursing officer, respondents.
CONCEPCION, J.:
Petitioner Lorenzo M. Tañada is a member of the Senate of the
Philippines, and President of the Citizens Party, whereas
petitioner Diosdado Macapagal, a member of the House of
Representatives of the Philippines, was one of the official
candidates of the Liberal Party for the Senate, at the General
elections held in November, 1955, in which Pacita Madrigal
Warns, Lorenzo Sumulong, Quintin Paredes, Francisco Rodrigo,
Pedro Sabido, Claro M. Recto, Domocao Alonto and Decoroso
Rosales, were proclaimed elected. Subsequently, the elections
of this Senators-elect-who eventually assumed their respective
seats in the Senate-was contested by petitioner Macapagal,
together with Camilo Osias, Geronima Pecson, Macario Peralta,
Enrique Magalona, Pio Pedrosa and William Chiongbian-who
had, also, run for the Senate, in said election-in Senate Electoral
Case No. 4, now pending before the Senate Electoral Tribunal. .
The Senate, in its session of February 22, 1956, upon
nomination of Senator Cipriano Primicias, on behalf of the
Nacionalista Party, chose Senators Jose P. Laurel, Fernando
Lopez and Cipriano Primicias, as members of the Senate
Electoral Tribunal. Upon nomination of petitioner Senator
Tañada, on behalf of the Citizens Party, said petitioner was next
chosen by the Senate as member of said Tribunal. Then, upon
nomination of Senator Primicias on behalf of the Committee on
Rules of the Senate, and over the objections of Senators Tañada
and Sumulong, the Senate choose respondents Senators
Mariano J. Cuenco and Francisco A. Delgado as members of the
same Electoral Tribunal. Subsequently, the Chairman of the
latter appointed: (1) Alfredo Cruz and Catalina Cayetano, as
technical assistant and private secretary, respectively, to
Senator Cuenco, as supposed member of the Senate Electoral
Tribunal, upon his recommendation of said respondent; and (2)
Manuel Serapio and Placido Reyes, as technical assistant and
private secretary, respectively to Senator Delgado, as supposed
member of said Electoral Tribunal, and upon his
recommendation.
Soon, thereafter, Senator Lorenzo M. Tañada and Congressman
Diosdado Macapagal instituted the case at bar against Senators
Cuenco and Delgado, and said Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes, as well as Fernando Hipolito,
in his capacity as Cashier and Disbursing Officer of the Senate
Electoral Tribunal. Petitioners allege that on February 22, 1956,
as well as at present, the Senate consists of 23 Senators who
belong to the Nacionalista Party, and one (1) Senator-namely,
petitioner, Lorenzo M. Tañada-belonging to the Citizens Party;
that the Committee on Rules for the Senate, in nominating
Senators Cuenco and Delgado, and the Senate, in choosing
these respondents, as members of the Senate Electoral
Tribunal, had "acted absolutely without power or color of
authority and in clear violation .. of Article VI, Section 11 of the
Constitution"; that "in assuming membership in the Senate
Electoral Tribunal, by taking the corresponding oath of office
therefor", said respondents had "acted absolutely without color
of appointment or authority and are unlawfully, and in violation
of the Constitution, usurping, intruding into and exercising the
powers of members of the Senate Electoral Tribunal"; that,
consequently, the appointments of respondents, Cruz,
Cayetano, Serapio and Reyes, as technical assistants and private
secretaries to Senators Cuenco and Delgado-who caused said
appointments to be made-as members of the Senate Electoral
Tribunal, are unlawful and void; and that Senators Cuenco and
Delgado "are threatening and are about to take cognizance of
Electoral Case No. 4 of the Senate Electoral Tribunal, as alleged
members thereof, in nullification of the rights of petitioner
Lorenzo M. Tañada, both as a Senator belonging to the Citizens
Party and as representative of the Citizens Party in the Senate
Electoral Tribunal, and in deprivation of the constitutional rights
of petitioner Diosdado Macapagal and his co-protestants to
have their election protest tried and decided-by an Electoral
Tribunal composed of not more than three (3) senators chosen
by the Senate upon nomination of the party having the largest
number of votes in the Senate and not more than the (3)
Senators upon nomination of the Party having the second
largest number of votes therein, together, three (3) Justice of
the Supreme Court to be designated by the Chief Justice,
instead of by an Electoral Tribunal packed with five members
belonging to the Nacionalista Party, which is the rival party of
the Liberal Party, to which the Petitioner Diosdado Macapagal
and his co-protestants in Electoral Case No. 4 belong, the said
five (5) Nacionalista Senators having been nominated and
chosen in the manner alleged.. hereinabove.".
Petitioners pray that:.
"1. Upon petitioners' filing of bond in such amount as may be
determined by this Honorable Court, a writ of preliminary
injunction be immediately issued directed to respondents
Mariano J. Cuenco, Francisco A. Delgado, Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes, restraining them
from continuing to usurp, intrude into and/ or hold or exercise
the said public offices respectively being occupied by them in
the Senate Electoral Tribunal, and to respondent Fernando
Hipolito restraining him from paying the salaries of respondent
Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido
Reyes, pending this action.
"2. After hearing, judgment be rendered ousting respondent
Mariano J. Cuenco Francisco A. Delgado, Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes from the
aforementioned public offices in the Senate Electoral Tribunal
and that they be altogether excluded therefrom and making the
Preliminary injunction permanent, with costs against the
respondents.".
Respondents have admitted the main allegations of fact in the
petition, except insofar as it questions the legality, and validity
of the election of respondents Senators Cuenco and Delgado, as
members of the Senate Electoral Tribunal, and of the
appointment of respondent Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes as technical assistants and
private secretaries to said respondents Senators. Respondents,
likewise, allege, by way of special and affirmative defenses,
that: (a) this Court is without power, authority of jurisdiction to
direct or control the action of the Senate in choosing the
members of the Electoral Tribunal; and (b) that the petition
states no cause of action, because "petitioner Tañada has
exhausted his right to nominate after he nominated himself and
refused to nominate two (2) more Senators", because said
petitioner is in estoppel, and because the present action is not
the proper remedy. .
I. Respondents assail our jurisdiction to entertain the petition,
upon the ground that the power to choose six (6) Senators as
members of the Senate Electoral Tribunal has been expressly
conferred by the Constitution upon the Senate, despite the fact
that the draft submitted to the constitutional convention gave
to the respective political parties the right to elect their
respective representatives in the Electoral Commission provided
for in the original Constitution of the Philippines, and that the
only remedy available to petitioners herein "is not in the judicial
forum", but "to bring the matter to the bar of public opinion.".
We cannot agree with the conclusion drawn by respondents
from the foregoing facts. To begin with, unlike the cases of
Alejandrino vs. Quezon (46 Phil., 83) and Vera vs. Avelino (77
Phil., 192)-relied upon by the respondents this is not an action
against the Senate, and it does not seek to compel the latter,
either directly or indirectly, to allow the petitioners to perform
their duties as members of said House. Although the
Constitution provides that the Senate shall choose six (6)
Senators to be members of the Senate Electoral Tribunal, the
latter is part neither of Congress nor of the Senate. (Angara vs.
Electoral Commission, 63 Phil., 139, Suanes vs. Chief
Accountant, 81 Phil., 818; 46 Off. Gaz., 462.).
Secondly, although the Senate has, under the Constitution, the
exclusive power to choose the Senators who shall form part of
the Senate Electoral Tribunal, the fundamental law has
prescribed the manner in which the authority shall be exercised.
As the author of a very enlightening study on judicial self-
limitation has aptly put it:.
"The courts are called upon to say, on the one hand, by whom
certain powers shall be exercised, and on the other hand, to
determine whether the powers possessed have been validly
exercised. In performing the latter function, they do not
encroach upon the powers of a coordinate branch of the,
government, since the determination of the validity of an act is
not the same, thing as the performance of the act. In the one
case we are seeking to ascertain upon whom devolves the duty
of the particular service. In the other case we are merely
seeking to determine whether the Constitution has been
violated by anything done or attented by either an executive
official or the legislative." (Judicial Self-Limitation by Finkelstein,
pp. 221, 224, 244, Harvard Law Review, Vol. 39; emphasis
supplied,).
The case of Suanes vs. Chief Accountant (supra) cited by
respondent refutes their own pretense. This Court exercised its
jurisdiction over said case and decided the same on the merits
thereof, despite the fact that it involved an inquiry into the
powers of the Senate and its President over the Senate Electoral
Tribunal and the personnel thereof. .
Again, under the Constitution, "the legislative power" is vested
exclusively in the Congress of the Philippines. Yet, this does not
detract from the power of the courts to pass upon the
constitutionality of acts of Congress 1 And, since judicial power
includes the authority to inquire into the legality of statutes
enacted by the two Houses of Congress, and approved by the
Executive, there can be no reason why the validity of an act of
one of said Houses, like that of any other branch of the
Government, may not be determined in the proper actions.
Thus, in the exercise of the so-called "judicial supremacy", this
Court declared that a resolution of the defunct National
Assembly could not bar the exercise of the powers of the
former Electoral Commission under the original Constitution. 2
(Angara vs. Electoral Commission, supra), and annulled certain
acts of the Executive 3 as incompatible with the fundamental
law.
In fact, whenever the conflicting claims of the parties to a
litigation cannot properly be settled without inquiring into the
validity of an act of Congress or of either House thereof, the
courts have, not only jurisdiction to pass upon said issue, but,
also, the duty to do so, which cannot be evaded without
violating the fundamental law and paving the way to its
eventual destruction. 4.
Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1) and
Cabili vs. Francisco (88 Phil., 654), likewise, invoked by
respondents, in point. In the Mabanag case, it was held that the
courts could not review the finding of the Senate to the effect
that the members thereof who had been suspended by said
House should not be considered in determining whether the
votes cast therein, in favor of a resolution proposing an
amendment to the Constitution, sufficed to satisfy the
requirements of the latter, such question being a political one.
The weight of this decision, as a precedent, has been weakened,
however, by our resolutions in Avelino vs. Cuenco (83 Phil., 17),
in which this Court proceeded to determine the number
essential to constitute a quorum in the Senate. Besides, the
case at bar does not hinge on the number of votes needed for a
particular act of said body. The issue before us is whether the
Senate-after acknowledging that the Citizens Party is the party,
having the second largest number of votes in the Senate, to
which party the Constitution gives the right to nominate three
(3) Senators for the Senate electoral Tribunal-could validly
choose therefor two (2) Nacionalista Senators, upon nomination
by the floor leader of the Nacionalista Party in the Senate,
Senator Primicias claiming to act on behalf of the Committee on
Rules for the Senate.
The issue in the Cabili case was whether we could review a
resolution of the Senate reorganizing its representation in the
Commission on Appointments. This was decided in the negative,
upon the authority of Alejandrino vs. Quezon (supra) and Vera
vs. Avelino (supra), the main purpose of the petition being "to
force upon the Senate the reinstatement of Senator Magalona
in the Commission on Appointments," one-half (1/2) of the
members of which is to be elected by each House on the basis
of proportional representation of the political parties therein.
Hence, the issue depended mainly on the determination of the
political alignment of the members of the Senate at the time of
said reorganization and of the necessity or advisability of
effecting said reorganization, which is a political question. We
are not called upon, in the case at bar, to pass upon an identical
or similar question, it being conceded, impliedly, but clearly,
that the Citizens Party is the party with the second largest
number of votes in the Senate. The issue, therefore, is whether
a right vested by the Constitution in the Citizens Party may
validly be exercised, either by the Nacionalista Party, or by the
Committee on Rules for the Senate, over the objection of said
Citizens Party.
xxx xxx xxx
The only ground upon which respondents' objection to the
jurisdiction of this Court and their theory to the effect that the
proper remedy for petitioners herein is, not the present action,
but an appeal to public opinion, could possibly be entertained
is, therefore, whether the case at bar raises merely a political
question, not one justiciable in nature.
In this connection, respondents assert in their answer that "the
remedy of petitioners is not in the judicial forum, but, to use
petitioner, Tañada's own words, to bring the matter to the bar
of public opinion' (p. 81, Discussion on the Creation of the
Senate Electoral Tribunal, February 21, 1956)." This allegation
may give the impression that said petitioner had declared, on
the floor of the Senate, that his only relief against the acts
complained of in the petition is to take up the issue before the
people- which is not a fact. During the discussions in the Senate,
in the course of the organization of the Senate Electoral
Tribunal, on February 21, 1956, Senator Tañada was asked what
remedies he would suggest if he nominated two (2)
Nacionialista Senators and the latter declined the, nomination.
Senator Tañada replied:.
"There are two remedies that occur to my mind right now, Mr.
Senator; one is the remedy open to all of us that if we feel
aggrieved and there is no recourse in the court of justice, we
can appeal to public opinion. Another remedy is an action in the
Supreme Court. Of course, as Senator Rodriguez, our President
here, has said one day; "If you take this matter to the Supreme
Court, you will lose, because until now the Supreme Court has
always ruled against any action that would constitute
interference in the business of anybody pertaining to the
Senate. The theory of separation of powers will be upheld by
the Supreme Court." But that learned opinion of Senator
Rodriguez, our President, notwithstanding, I may take the case
to the Supreme Court if my right herein is not respected. I may
lose, Mr. President, but who has not lost in the Supreme Court?
I may lose because of the theory of the separation of powers,
but that does not mean, Mr. President, that what has been
done here is pursuant to the provision of the Constitution."
(Congressional Record, Vol. III, p. 339; emphasis supplied.).
This statement did not refer to the nomination, by Senator
Primicias, and the election, by the Senate, of Senators Cuenco
and Delgado as members of said Tribunal. Indeed, said
nomination and election took place the day after the
aforementioned statement of Senator Tañada was made. At any
rate, the latter announced that he might "take the case to the
Supreme Court if my right here is not respected.".
As already adverted to, the objection to our jurisdiction hinges
on the question whether the issue before us is political or not.
In this connection, Willoughby lucidly states:.
"Elsewhere in this treatise the well-known and well-established
principle is considered that it is not within the province of the
courts to pass judgment upon the policy of legislative or
executive action. Where, therefore, discretionary powers are
granted by the Constitution or by statute, the manner in which
those powers are exercised is not subject to judicial review. The
courts, therefore, concern themselves only with the question as
to the existence and extent of these discretionary powers.
"As distinguished from the judicial, the legislative and executive
departments are spoken of as the political departments of
government because in very many cases their action is
necessarily dictated by considerations of public or political
policy. These considerations of public or political policy of
course will not permit the legislature to violate constitutional
provisions, or the executive to exercise authority not granted
him by the Constitution or by, statute, but, within these limits,
they do permit the departments, separately or together, to
recognize that a certain set of facts exists or that a given status
exists, and these determinations, together with the
consequences that flow therefrom, may not be traversed in the
courts." (Willoughby on the Constitution of the United States,
Vol. 3, p. 1326; emphasis supplied.).
To the same effect is the language used in Corpus Juris
Secundum, from which we quote:.
"It is well-settled doctrine that political questions are not within
the province of the judiciary, except to the extent that power to
deal with such questions has been conferred upon the courts by
express constitutional or statutory provisions.
"It is not easy, however, to define the phrase `political
question', nor to determine what matters, fall within its scope.
It is frequently used to designate all questions that lie outside
the scope of the judicial questions, which under the
constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has
been delegated to the legislative or executive branch of the
government." (16 C.J.S., 413; see, also Geauga Lake
Improvement Ass'n. vs. Lozier, 182 N. E. 491, 125 Ohio St. 565;
Sevilla vs, Elizalde, 112 F. 2d 29, 72 App. D. C., 108; emphasis
supplied.).
Thus, it has been repeatedly held that the question whether
certain amendments to the Constitution are invalid for non-
compliance with the procedure therein prescribed, is not a
political one and may be settled by the Courts. 5 .
In the case of In re McConaughy (119 N.W. 408), the nature of
political question was considered carefully. The Court said:.
"At the threshold of the case we are met with the assertion that
the questions involved are political, and not judicial. If this is
correct, the court has no jurisdiction as the certificate of the
state canvassing board would then be final, regardless of the
actual vote upon the amendment. The question thus raised is a
fundamental one; but it has been so often decided contrary to
the view contended for by the Attorney General that it would
seem to be finally settled.
xxx xxx x x x.
" .. What is generally meant, when it is, said that a question is
political, and not judicial, is that it is a matter which, is to be
exercised by the people in their primary political capacity, or
that it has been specifically delegated to some other
department or particular officer of the government, with
discretionary power to act. See State vs. Cunningham, 81 Wis.
497, 51 L. R. A. 561; In Re Gunn, 50 Kan. 155; 32 Pac. 470, 948,
19 L. R. A. 519; Green vs. Mills, 69 Fed. 852, 16, C. C. A. 516, 30
L. R. A. 90; Fletcher vs. Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A.
143, 42 Am. St. Rep. 220. Thus the Legislature may in its
discretion determine whether it will pass a law or submit a
proposed constitutional amendment to the people. The courts
have no judicial control over such matters, not merely because
they involve political question, but because they are matters
which the people have by the Constitution delegated to the
Legislature. The Governor may exercise the powers delegated
to him, free from judicial control, so long as he observes the
laws and acts within the limits of the power conferred. His
discretionary acts cannot be controllable, not primarily because
they are of a political nature, but because the Constitution and
laws have placed the particular matter under his control. But
every officer under a constitutional government must act
according to law and subject him to the restraining and
controlling power of the people, acting through the courts, as
well as through the executive or the Legislature. One
department is just as representative as the other, and the
judiciary is the department which is charged with the special
duty of determining the limitations which the law places upon
all official action. The recognition of this principle, unknown
except in Great Britain and America, is necessary, to the end
that the government may be one of laws and not men'-words
which Webster said were the greatest contained in any written
constitutional document." (pp. 411, 417; emphasis supplied.).
In short, the term "political question" connotes, in legal
parlance, what it means in ordinary parlance, namely, a
question of policy. In other words, in the language of Corpus
Juris Secundum (supra), it refers to "those questions which,
under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive
branch of the Government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular
measure.
Such is not the nature of the question for determination in the
present case. Here, we are called upon to decide whether the
election of Senators Cuenco and Delgado, by the Senate, as
members of the Senate Electoral Tribunal, upon nomination by
Senator Primicias-a member and spokesman of the party having
the largest number of votes in the Senate-on behalf of its
Committee on Rules, contravenes the constitutional mandate
that said members of the Senate Electoral Tribunal shall be
chosen "upon nomination .. of the party having the second
largest number of votes" in the Senate, and hence, is null and
void. This is not a political question. The Senate is not clothed
with "full discretionary authority" in the choice of members of
the Senate Electoral Tribunal. The exercise of its power thereon
is subject to constitutional limitations which are claimed to be
mandatory in nature. It is clearly within the legitimate prove of
the judicial department to pass upon the validity the
proceedings in connection therewith.
".. whether an election of public officers has been in accordance
with law is for the judiciary. Moreover, where the legislative
department has by statute prescribed election procedure in a
given situation, the judiciary may determine whether a
particular election has been in conformity with such statute,
and, particularly, whether such statute has been applied in a
way to deny or transgress on the constitutional or statutory
rights .." (16 C.J.S., 439; emphasis supplied.).
It is, therefore, our opinion that we have, not only jurisdiction,
but, also, the duty, to consider and determine the principal
issue raised by the parties herein.
II. Is the election of Senators Cuenco and Delgado, by the
Senate, as members of the Electoral Tribunal, valid and lawful?.
Section 11 of Article VI of the Constitution, reads:.
"The Senate and the House of Representatives shall each have
an Electoral Tribunal which shall be the sole judge of all contests
relating to the election, returns, and qualifications of their
respective Members. Each Electoral Tribunal shall be composed
of nine Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief Justice, and the
remaining six shall be Members of the Senate or of the House of
Representatives, as the case may be, who shall be chosen by
each House, three upon nomination of the party having the
largest number of votes and three of the party having the
second largest number of votes therein. The Senior Justice in
each Electoral Tribunal shall be its Chairman." (Emphasis
supplied.).
It appears that on February 22, 1956, as well as at present, the
Senate of the Philippines consists of twenty three (23) members
of the Nacionalista Party and one (1) member of the Citizens
Party, namely, Senator Tañada, who is, also, the president of
said party. In the session of the Senate held on February 21,
1956, Senator Sabido moved that Senator Tañada, "the
President of the Citizens Party, be given the privilege to
nominate .. three (3) members" of the Senate Electoral Tribunal
(Congressional Record for the Senate, Vol. III, pp. 328-329),
referring to those who, according to the provision above-
quoted, should be nominated by "the party having the second
largest number of votes" in the Senate. Senator Tañada
objected formally to this motion upon the-ground: (a) that the
right to nominate said members of the Senate Electoral Tribunal
belongs, not to the Nacionalista Party of which Senator Sabido
and the other Senators are members-but to the Citizens Party,
as the one having the second largest number of votes in the
Senate, so that, being devoid of authority to nominate the
aforementioned members of said Tribunal, the Nacionalista
Party cannot give it to the Citizens Party, which, already, has
such authority, pursuant to the Constitution; and (b) that
Senator Sabido's motion would compel Senator Tañada to
nominate three (3) Senators to said Tribunal, although as
representative of the minority party in the Senate he has "the
right to nominate one, two or three to the Electoral Tribunal," in
his discretion. Senator Tañada further stated that he reserved
the right to determine how many he would nominate, after
hearing the reasons of Senator Sabido in support of his motion.
After some discussion, in which Senators Primicias, Cea, Lim,
Sumulong, Zulueta, and Rodrigo took part, the Senate
adjourned until the next morning, February 22, 1956 (Do., do,
pp. 329, 330, 332-333, 336, 338, 339, 343).
Then, said issues were debated upon more extensively, with
Senator Sumulong, not only seconding the opposition of
Senator Tañada, but, also, maintaining that "Senator Tañada
should nominate only one" member of the Senate, namely,
himself, he being the only Senator who belongs to the minority
party in said House (Do., do., pp. 360-364, 369). Thus, a new
issue was raised - whether or not one who does not belong to
said party may be nominated by its spokesman, Senator Tañada
- on which Senators Paredes, Pelaez, Rosales and Laurel, as well
as the other Senators already mentioned, expressed their views
(Do., do., pp. 345, 349, 350, 354, 358, 364, 375). Although the
deliberations of the Senate consumed the whole morning and
afternoon of February 22, 1956, a satisfactory solution of the
question before the Senate appeared to be remote. So, at 7:40
p.m., the meeting was suspended, on motion of Senator Laurel,
with a view to seeking a compromise formula (Do., do., pp.
377). When session was resumed at 8:10 p.m., Senator Sabido
withdrew his motion above referred to. Thereupon, Senator
Primicias, on behalf of the Nacionalista Party, nominated, and
the Senate elected, Senators Laurel, Lopez and Primicias, as
members of the Senate Electoral Tribunal. Subsequently,
Senator Tañada stated:.
"On behalf of the Citizens Party, the minority party in this Body,
I nominate the only Citizens Party member in this Body, and
that is Senator Lorenzo M. Tañada.".
Without an objection, this nomination was approved by the
House. Then, Senator Primicias stood up and said:.
"Now, Mr. President, in order to comply with the provision in
the Constitution, the Committee on Rules of the Senate-and I
am now making this proposal not on behalf of the Nacionalista
Party but on behalf of the Committee on Rules of the Senate-I
nominate two other members to complete the membership of
the Tribunal: Senators Delgado and Cuenco.".
What took place thereafter appears in the following quotations
from the Congressional Record for the Senate.
"SENATOR TAÑADA. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Quezon.
"SENATOR TAÑADA. I would like to record my opposition to the
nominations of the last two named gentlemen, Senators
Delgado and Cuenco, not because I don't believe that they do
not deserve to be appointed to the tribunal but because of my
sincere and firm conviction that these additional nominations
are not sanctioned by the Constitution. The Constitution only
permits the Nacionalista Party or the party having the largest
number of votes to nominate three.
"SENATOR SUMULONG. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Rizal.
"SENATOR SUMULONG. For the reasons that I have stated a few
moments ago when I took the floor, I also wish to record my
objection to the last nominations, to the nomination of two
additional NP's to the Electoral Tribunal.
"EL PRESIDENTE INTERINO. Esta dispuesto el Senado a votar?
(Varios Senadores: Si.) Los que esten conformes con la
nominacion hecha por el Presidente del Comite de Reglamentos
a favor de los Senadores Delgado y Cuenco para ser miembros
del Tribunal Electoral, digan, si. (Varios Senadores: Si.) Los que
no lo esten digan, no (Silencio.) Queda aprobada."
(Congressional Record for the Senate, Vol. III, p. 377; emphasis
supplied.).
Petitioners maintain that said nomination and election of
Senators Cuenco and Delgado-who belong to the Nacionalista
Party-as members of the Senate Electoral Tribunal, are null and
void and have been made without power or color of authority,
for, after the nomination by said party, and the election by the
Senate, of Senators Laurel, Lopez and Primicias, as members of
said Tribunal, the other Senators, who shall be members
thereof, must necessarily be nominated by the party having the
second largest number of votes in the Senate, and such party is,
admittedly, the Citizens Party, to which Senator Tañada belongs
and which he represents.
Respondents allege, however, that the constitutional mandate
to the effect that "each Electoral Tribunal shall be compose of
nine (9) members," six (6) of whom "shall be members of the
Senate or of the House of Representatives, as the case may be",
is mandatory; that when-after the nomination of three (3)
Senators by the majority party, and their election by the Senate,
as members of the Senate Electoral Tribunal-Senator Tañada
nominated himself only, on behalf of the minority party, he
thereby "waived his right to no two more Senators;" that, when
Senator Primicias nominated Senators Cuenco and Delgado, and
these respondents were chosen by the Senate, as members of
the Senate Electoral Tribunal, Said Senator Primicias and the
Senate merely complied with the aforementioned provision of
the fundamental law, relative to the number of members of the
Senate Electoral Tribunal; and, that, accordingly, Senators
Cuenco and Delgado are de jure members of said body, and the
appointment of their co-respondents, Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes is valid and lawful.
At the outset, it will be recalled that the proceedings the
organization of the Senate Electoral Tribunal began with a
motion of Senator Sabido to the effect that "the distinguished
gentleman from Quezon, the President of the Citizens Party, be
given the privilege to nominate the three Members" of said
Tribunal. Senator Primicias inquired why the movant had used
the word "privilege". Senator Sabido explained that the present
composition of the Senate had created a condition or situation
which was not anticipated by the framers of our Constitution;
that although Senator Tañada formed part of the Nacionalista
Party before the end of 1955, he subsequently parted ways
with" said party; and that Senator Tañada "is the distinguished
president of the Citizens Party," which "approximates the
situation desired by the framers of the Constitution"
(Congressional Record for the Senate Vol. III, pp. 329-330). Then
Senator Lim intervened, stating:.
"At present Senator Tañada is considered as forming the only
minority or the one that has the second largest number of votes
in the existing Senate, is not that right? And if this is so, he
should be given this as a matter of right, not as a matter of
privilege. .. I don't believe that we should be allowed to grant
this authority to Senator Tañada only as a privilege but we must
grant it as a matter of right." (Id., id., p. 32; emphasis supplied.).
Similarly, Senator Sumulong maintained that "Senator Tañada,
as Citizens Party Senator, has the right and not a mere privilege
to nominate," adding that:.
".. the question is whether we have a party here having the
second largest number of votes, and it is clear in my mind that
there is such a party, and that is the Citizens Party to which the
gentleman from Quezon belongs. .. We have to bear in mind, ..
that when Senator Tañada was included in the Nacionalista
Party ticket in 1953, it was by virtue of a coalition or an alliance
between the Citizens Party and the Nacionalista Party at that
time, and I maintain that when Senator Tañada as head of the
Citizens Party entered into a coalition with the Nacionalista
Party, he did not thereby become a Nacionalista because that
was a mere coalition, not a fusion. When the Citizens Party
entered into a mere coalition, that party did not lose its
personality as a party separate and distinct from the,
Nacionalista Party. And we should also remember that the
certificate of candidacy filed by Senator Tañada in the 1953
election was one to the effect that he belonged to the Citizens
Party .." (Id., id., p. 360; emphasis supplied.).
The debate was closed by Senator Laurel, who remarked,
referring to Senator Tañada:.
"..there is no doubt that he does not belong to the majority in
the first place, and that, therefore, he belongs to the minority.
And whether we like it or not, that is the reality of the actual
situation-that he is not a Nacionalista now, that he is the head
and the representative of the Citizens Party. I think that on
equitable ground and from the point of view of public opinion,
his situation .. approximates or approaches what is within the
spirit of that Constitution. .. and from the point of view of the
spirit of the Constitution it would be a good thing if we grant
the opportunity to Senator Tañada to help us in the
organization of this Electoral Tribunal (Id., id., p. 376; emphasis
supplied.).
The foregoing statements and the fact that, thereafter, Senator
Sabido withdrew his motion to grant Senator Tañada the
"privilege" to nominate, and said petitioner actually nominated
himself "on behalf of the Citizens Party, the minority party in
this Body"-not only without any, objection whatsoever, but,
also, with the approval of the Senate-leave no room for doubt
that the Senate-leave no room for doubt that the Senate has
regarded the Citizens Party, represented by Senator Tañada, as
the party having the second largest number of votes in said
House.
Referring, now, to the contention of respondents herein, their
main argument in support of the mandatory character of the
constitutional provision relative to the number of members of
the Senate Electoral Tribunal is that the word "shall", therein
used, is imperative in nature and that this is borne out by an
opinion of the Secretary of Justice dated February 1, 1939,
pertinent parts of which are quoted at the footnote. 6.
Regardless of the respect due its author, as a distinguished
citizen and public official, said opinion has little, if any, weight in
the solution of the question before this Court, for the practical
construction of a Constitution is of little, if any, unless it has
been uniform .." 6a Again, "as a general rule, it is only in cases
of substantial doubt and ambiguity that the doctrine of
contemporaneous or practical construction has any
application". As a consequence, "where the meaning of a
constitutional provision is clear, a contemporaneous or practical
executive interpretation thereof is entitled to no weight, and
will not be allowed to distort or in any way change its natural
meaning." The reason is that "the application of the doctrine of
contemporaneous construction is more restricted as applied to
the interpretation of constitutional provisions than when
applied to statutory provisions", and that, "except as to matters
committed by the Constitution, itself to the discretion of some
other department, contemporary or practical construction is
not necessarily binding upon the courts, even in a doubtful
case." Hence, "if in the judgment of the court, such construction
is erroneous and its further application is not made imperative
by any paramount considerations of public policy, it may he
rejected." (16 C. J. S., 71-72; emphasis supplied.) 6b.
The aforemention opinion of the Secretary of Justice is not
backed up by a, "uniform" application of the view therein
adopted, so essential to give thereto the weight accorded by
the rules on contemporaneous constructions. Moreover, said
opinion tends to change the natural meaning of section 11 of
Article VI of the Constitution, which is clear. What is more, there
is not the slightest doubt in our mind that the purpose and spirit
of said provisions do not warrant said change and that the
rejection of the latter is demanded by paramount
considerations of public policy. .
The flaw in the position taken in said opinion and by respondent
herein is that, while, it relies upon the compulsory nature of the
word "shall", as regards the number of members of the
Electoral Tribunals, it ignores the fact that the same term is
used with respect to the method prescribed for their election,
and that both form part of a single sentence and must be
considered, therefore, as integral portions of one and the same
thought. Indeed, respondents have not even tried to show and
we cannot conceive-why "shall" must be deemed mandatory
insofar as the number of members of each Electoral Tribunal,
and should be considered directory as regards the procedure for
their selection. More important still, the history of section 11 of
Article VI of the Constitution and the records of the Convention,
refute respondents' pretense, and back up the theory of
petitioners herein.
Commenting on the frame of mind of the delegates to the
Constitutional Convention, when they faced the task of
providing for the adjudication of contests relating to the
election, returns and qualifications of members of the
Legislative Department, Dr. Jose M. Aruego, a member of said
Convention, says:.
"The experience of the Filipino people under the provisions of
the organic laws which left to the lawmaking body the
determination of the elections, returns, and qualifications of its
members was not altogether satisfactory. There were many
complaints against the lack of political justice in this
determination; for in a great number of cases, party interests
controlled and dictated the decisions. The undue delay in the
dispatch of election contests for legislative seats, the
irregularities that characterized the proceedings in some of
them, and the very apparent injection of partisanship in the
determination of a great number of the cases were decried by a
great number of the people as well as by the organs of public
opinion.
"The faith of the people in the uprightness of the lawmaking
body in the performance of this function assigned to it in the
organic laws was by no means great. In fact so blatant was the
lack of political justice in the decisions that there was, gradually
built up a camp of thought in the Philippines inclined to leave to
the courts the determination of election contests, following the
practice in some countries, like England and Canada.
"Such were the conditions of things at the time of the meeting
of the convention." (The Framing of the Philippine Constitution
by Aruego, Vol. 1, pp. 257-258; emphasis supplied.).
This view is shared by distinguished members of the Senate.
Thus, in its session of February 22, 1956, Senator Sumulong
declared:.
".. when you leave it to either House to decide election protests
involving its own members, that is virtually placing the majority
party in a position to dictate the decision in those election
cases, because each House will be composed of a majority and a
minority, and when you make each House the judge of every
election protest involving any member of that House, you place
the majority in a position to dominate and dictate the decision
in the case and result was, there were so many abuses, there
were so main injustices: committed by the majority at the
expense and to the prejudice of the minority protestants.
Statements have been made here that justice was done even
under the old system, like that case involving Senator Mabanag,
when he almost became a victim of the majority when he had
an election case, and it was only through the intervention of
President Quezon that he was saved from becoming the victim
of majority injustices.
"It is true that justice had sometimes prevailed under the old
system, but the record will show that those cases were few and
they were the rare exceptions. The overwhelming majority of
election protests decided under the old system was that the
majority being then in a position to dictate the, decision in the
election protest, was tempted to commit as it did commit many
abuses and injustices." (Congressional Record for the Senate,
Vol. 111, p. 361; emphasis supplied.).
Senator Paredes, a veteran legislator and former Speaker of the
House of Representatives, said:.
".. what was intended in the creation of the electoral tribunal
was to create a sort of collegiate court composed of nine
members: Three of them belonging to the party having the
largest number of votes, and three from the party having the
second largest number votes so that these members may
represent the party, and the members of said party who will sit
before the electoral tribunal as protestees. For when it comes
to a party, Mr. President, there ground to believe that decisions
will be made along party lines." (Congressional Record for the
Senate, Vol. III, p. 351; emphasis supplied.).
Senator Laurel, who played an important role in the framing of
our Constitution, expressed himself as follows:.
"Now, with reference to the protests or contests, relating to the
election, the returns and the qualifications of the members of
the legislative bodies, I heard it said here correctly that there
was a time when that was given to the corresponding chamber
of the legislative department. So the election, returns and
qualifications of the members, of the Congress or legislative
body was entrusted to that body itself as the exclusive body to
determine the election, returns and qualifications of its
members. There was some doubt also expressed as to whether
that should continue or not, and the greatest argument in favor
of the retention of that provision was the fact that was, among
other things, the system obtaining in the United States under
the Federal Constitution of the United States, and there was no
reason why that power or that right vested in the legislative
body should not be retained. But it was thought that would
make the determination of this contest, of this election protest,
purely political as has been observed in the past."
(Congressional Record for the Senate, Vol. III, p. 376; emphasis
supplied.).
It is interesting to note that not one of the members of the
Senate contested the accuracy of the views thus expressed.
Referring particularly to the philosophy underlying the
constitutional provision quoted above, Dr. Aruego states:.
"The defense of the Electoral Commission was based primarily
upon the hope and belief that the abolition of Party line
because of the equal representation in this body of the majority
and the minority parties of the National Assembly and the
intervention of some members of the Supreme Court who,
under the proposed constitutional provision, would also be
members of the same, would insure greater political justice in
the determination of election contests for seats in the National
Assembly than there would be if the power had been lodged in
the lawmaking body itself. Delegate Francisco summarized the
arguments for the creation of the Electoral Commission in the
following words:.
"I understand that from the time that this question is placed in
the hands of members not only of the majority party but also of
the minority party, there is already a condition, a factor which
would make protests decided in a non-partisan manner. We
know from experience that many times in the many protests
tried in the House or in the Senate, it was impossible to prevent
the factor of party from getting in. From the moment that it is
required that not only the majority but also the minority should
intervene in these questions, we have already enough
guarantee that there would be no tyranny on the part of the
majority.
`But there is another more detail which is the one which
satisfies me most, and that is the intervention of three justices.
So that with this intervention of three justices if there would be
any question as to the justice applied by the majority or the
minority, if there would be any fundamental disagreement, or if
there would be nothing but questions purely of party in which
the members of the majority as well as those of the minority
should wish to take lightly a protest because the protestant
belongs to one of said parties, we have in this case, as a check
upon the two parties, the actuations of the three justices. In the
last analysis, what is really applied in the determination of
electoral cases brought before the tribunals of justice or before
the House of Representatives or the Senate? Well, it is nothing
more than the law and the doctrine of the Supreme Court. If
that is the case, there will be greater skill in the application of
the laws and in the application of doctrines to electoral matters
having as we shall have three justices who will act impartially in
these electoral questions.
`I wish to call the attention of my distinguished colleagues to
the fact that in electoral protests it is impossible to set aside
party interests. Hence, the best guarantee, I repeat, for the
administration of justice to the parties, for the fact that the laws
will not be applied rightfully or incorrectly as well as for the fact
that the doctrines of the Supreme Court will be applied
rightfully, the best guarantee which we shall have, I repeat, is
the intervention of the three justices. And with the formation of
the Electoral Commission, I say again, the protestants as well as
the protestees could remain tranquil in the certainty that they
will receive the justice that they really deserve. If we eliminate
from this precept the intervention of the party of the minority
and that of the three justices, then we shall be placing protests
exclusively in the hands of the party in power. And I understand,
gentlemen, that in practice that has not given good results.
Many have criticized, many have complained against, the
tyranny of the majority in electoral cases .. I repeat that the best
guarantee the fact that these questions will be judged not only
by three members of the majority but also by three members of
the minority, with the additional guarantee of the impartial
judgment of three justices of the Supreme Court." (The Framing
of the Philippine Constitution by Aruego, Vol. I, pp. 261-263;
emphasis supplied.).
The foregoing was corroborated by Senator Laurel. Speaking for
this Court, in Angara vs. Electoral Commission (63 Phil., 139), he
asserted:.
"The members of the Constitutional Convention who framed
our fundamental law were in their majority-men mature in
years and experience. To be sure, many of them were familiar
with the history and political development of other countries of
the world. When, therefore they deemed it wise to create an
Electoral Commission as a constitutional organ and invested
with the exclusive function of passing upon and determining the
election, returns and qualifications of the members of the
National Assembly, they must have done so not only in the light
of their own experience but also having in view the experience
of other enlightened peoples of the world. The creation of the
Electoral Commission was designed to remedy certain evils of
which the framers of our Constitution were cognizant.
Notwithstanding the vigorous opposition of some members of
the Convention to its creation, the plan, as hereinabove stated,
was approved by that body by a vote of 98 against 58. All that
can be said now is that, upon the approval of the Constitution,
the creation of the Electoral Commission is the expression of
the wisdom `ultimate justice of the people'. (Abraham Lincoln,
First Inaugural Address, March 4, 1861.).
"From the deliberations of our Constitutional Convention it is
evident that the purpose was to transfer in its totality all the
powers previously exercised by the legislature in matters
pertaining to contested elections of its members, to an
independent and impartial tribunal. It was not so much the
knowledge and appreciation of contemporary constitutional
precedents, however, as the long felt need of determining
legislative contests devoid of partisan considerations which
prompted the people acting through their delegates to the
Convention, to provide for this body known as the Electoral
Commission. With this end in view, a composite body in which
both the majority and minority parties are equally represented
to off-set partisan influence in its deliberations was created, and
further endowed with judicial temper by including in its
membership three justices of the Supreme Court," (Pp. 174-
175.) 7.
As a matter of fact, during the deliberations of the convention,
Delegates Conejero and Roxas said:.
"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir
informacion del Subcomite de Siete.
"El Sr. PRESIDENTE. Que dice el Comite?" El Sr. ROXAS. Con
mucho gusto. "El Sr. CONEJERO. Tal como esta el draft., dando
tres miembrosala mayoria, y otros t?-es a la minyoryia y atros a
la Corte Suprerma, no cree su Senoria que este equivale
pricticamente a dejar el asunto a los miembros del Tribunal
Supremo?.
"El Sr. ROXAS. Si y no. Creemos que si el tribunal a la Comision
esta cotistuido en esa forma, tanto los miembros de la mayoria
como los de la minoria asi como los miembros de la Corte
Saprema consideration la cuestion sobre la base de sus meritos,
sabiendo que el partidismo no es suficiente para dar el triunbo.
"El Sr. CONEJERO. Cree Su Senoria que en un caso como ese,
podriamos hacer que tanto los de la mayoria como los de la
minoria prescindieran del partidisrno?.
"El Sr. ROXAS. Creo que si, porque el partidismo no les daria el
triunfo." (Angara vs. Electoral Commission, supra, pp. 168-169;
emphasis supplied.).
It is clear from the foregoing that the main objective of the
framers of our Constitution in providing for the establishment,
first, of an Electoral Commission, 8 and then 9 of one Electoral
Tribunal for each House of Congress, was to insure the exercise
of judicial impartiality in the disposition of election contests
affecting members of the lawmaking body. To achieve this
purpose, two devices were resorted to, namely: (a) the party
having the largest number of votes, and the party having the
second largest number of votes, in the National Assembly or in
each House of Congress, were given the same number of
representatives in the Electoral Commission or Tribunal, so that
they may realize that partisan considerations could not control
the adjudication of said cases, and thus be induced to act with
greater impartiality; and (b) the Supreme Court was given in
said body the same number of representatives as each one of
said political parties, so that the influence of the former may be
decisive and endow said Commission or Tribunal with judicial
temper.
This is obvious from the very language of the constitutional
provision under consideration. In fact, Senator Sabido-who had
moved to grant to Senator Tañada the privilege" to make the
nominations on behalf of party having the second largest
number of votes in the Senate-agrees with it. As Senator
Sumulong inquired:.
"..I suppose Your Honor will agree with me that the framers of
the Constitution precisely thought of creating this Electoral
Tribunal so as to prevent the majority from ever having a
preponderant majority in the Tribunal." (Congressional Record
for the Senate, Vol. III, p. 330; emphasis supplied.).
Senator Sabido replied:.
"That is so, .." (Id., p. 330.).
Upon further interpretation, Senator Sabido said:.
".. the purpose of the creation of the Electoral Tribunal and of
its composition is to maintain a balance between the two
parties and make the members of the Supreme Court the
controlling power so to speak of the Electoral Tribunal or hold
the balance of power. That is the ideal situation."
(Congressional Record for the Senate, Vol. III, p. 349; emphasis
supplied.).
Senator Sumulong opined along the same line. His words were: .
"..The intention is that when the three from the majority and
the three from the minority become members of the Tribunal it
is hoped that they will become aware of their judicial functions,
not to protect the protestants or the protegees. It is hoped that
they will act as judges because to decide election cases is a
judicial function. But the framers of, the Constitution besides
being learned were men of experience. They knew that even
Senators like us are not angels, that we are human beings, that
if we should be chosen to go to the Electoral Tribunal no one
can say that we will entirely be free from partisan influence to
favor our party, so that in, case that hope that the three from
the majority and the three from the minority who will act as
Judges should result in disappointment, in case they do not act
as judges but they go there and vote along party liner, still there
is the guarantee that they will offset each other and the result
will be that the deciding vote will reside in the hands of the
three Justices who have no partisan motives to favor either the
protestees or the protestants. In other words, the whole idea is
to prevent the majority from controlling and dictating the
decisions of the Tribunal and to make sure that the decisive
vote will be wielded by the Congressmen or Senators who are
members the Tribunal but will be wielded by the Justices who,
by virtue of their judicial offices, will have no partisan motives
to serve, either protestants, or protestees. That is my
understanding of the intention of the framers of the
Constitution when they decided to create the Electoral Tribunal.
xxx xxx x x x.
"My idea is that the intention of the framers of the constitution
in creating the Electoral Tribunal is to insure impartially and
independence in its decision, and that is sought to be done by
never allowing the majority party to control the Tribunal, and
secondly by seeing to it that the decisive vote in the Tribunal
will be left in the hands of persons who have no partisan
interest or motive to favor either protestant or protestee."
(Congressional Record for the Senate, Vol. III, pp. 362-363, 365-
366; emphasis supplied.).
So important in the "balance of powers" between the two
political parties in the Electoral Tribunals, that several members
of the Senate questioned the right of the party having the
second largest number of votes in the Senate and, hence, of
Senator Tañada, as representative of the Citizens Party-to
nominate for the Senate Electoral Tribunal any Senator not
belonging to said party. Senators Lim, Sabido, Cea and Paredes
maintained that the spirit of the Constitution would be violated
if the nominees to the Electoral Tribunals did not belong to the
parties respectively making the nominations. 10.
It is not necessary, for the purpose of this decision, to
determine whether the parties having the largest, and the
second largest, number of votes in each House may nominate,
to the Electoral Tribunals, those members of Congress who do
not belong to the party nominating them. It is patent, however,
that the most vital feature of the Electoral Tribunals is the equal
representation of said parties therein, and the resulting
equilibrium to be maintained by the Justices of the Supreme
Court as members of said Tribunals. In the words of the
members of the present Senate, said feature reflects the
"intent" "purpose", and "spirit of the Constitution", pursuant to
which the Senate Electoral Tribunal should be organized
(Congressional Record for the Senate, pp. 330, 337, 348-9, 350,
351, 355, 358, 362-3, 364, 370, 376).
Now then, it is well settled that "the purpose of all rules or
maxims as to the construction or interpretation of statutes is to
discover the true intention of the law" (82 C. J. S., 526) and that.
"As a general rule of statutory construction, the spirit or
intention of a statute prevails over the letter thereof, and
whatever is within the spirit of statute is within the statute
although it is not within the letter, while that which is within the
letter, but not within the spirit of a statute, is not within the
statute; but, where the law is free and clear from ambiguity, the
letter of it is not to be disregarded on the pretext of pursuing its
spirit." (82 C. J. S., 613.).
"There is no universal rule or absolute test by which directory
provisions in a statute may in all circumstances be distinguished
from those which are mandatory. However, in the
determination of this question, as of every other question of
statutory construction, the prime object is to ascertain the
legislative intent. The legislative intent must be obtained front
all the surrounding circumstances, and the determination does
not depend on the form of the statute. Consideration must be
given to the entire statute, its nature, its object, and the
consequences which would result from construing it one way or
the other, and the statute must be construed in connection with
other related statutes. Words of permissive character may be
given a mandatory significance in order to effect the legislative
intent, and, when the terms of a statute are such that they
cannot be made effective to the extent of giving each and all of
them some reasonable operation, without construing the
statute as mandatory, such construction should be given; .. On
the other hand, the language of a statute, however mandatory
in form, may be deemed directory whenever legislative purpose
can best be carried out by such construction, and the legislative
intent does not require a mandatory construction; but the
construction of mandatory words as directory should not be
lightly adopted and never where it would in fact make a new
law instead of that passed by the legislature. .. Whether a
statute is mandatory or directory depends on whether the thing
directed to be done is of the essence of the thing required, or is
a mere matter of form, and what is a matter of essence can
often be determined only by judicial construction. Accordingly,
when a particular provision of a statute relates to some
immaterial matter, as to which compliance with the statute is a
matter of convenience rather than substance, or where the
directions of a statute are given merely with a view to the
proper, orderly, and prompt conduct of business, it is generally
regarded as directory, unless followed by words of absolute
prohibition; and a statute is regarded as directory were no
substantial rights depend on it, no injury can result from
ignoring it, and the purpose of the legislative can be
accomplished in a manner other than that prescribed, with
substantially the same result. On the other hand, a provision
relating to the essence of the thing to be done, that is, to
matters of substance, is mandatory, and when a fair
interpretation of a statute, which directs acts or proceedings to
be done in a certain way shows that the legislature intended a
compliance with such provision to be essential to the validity of
the act or proceeding, or when same antecedent and pre-
requisite conditions must exist prior to the exercise of power, or
must be performed before certain other powers can be
exercise, the statute must be regarded as mandatory. (Id., pp.
869-874.) (See also, Words and Phrases, Vol. 26, pp. 463-467;
emphasis supplied.).
What has been said above, relative to the conditions
antecedent to, and concomitant with, the adoption of section
11 of Article VI of the Constitution, reveals clearly that its
framers intended to prevent the majority party from controlling
the Electoral Tribunals, and that the structure thereof is
founded upon the equilibrium between the majority and the
minority parties therein, with the Justices of the Supreme Court,
who are members of said Tribunals, holding the resulting
balance of power. The procedure prescribed in said provision
for the selection of members of the Electoral Tribunals is vital to
the role they are called upon to play. it constitutes the essence
of said Tribunals. Hence, compliance with said procedure is
mandatory, and acts performed in violation thereof are null and
void. 11.
It is true that the application of the foregoing criterion would
limit the membership of the Senate Electoral Tribunal, in the
case at bar, to seven (7), instead of nine (9), members; but, it is
conceded that the present composition of the Senate was not
foreseen by the framers of our Constitution (Congressional
Record for the Senate, Vol. III, pp. 329, 342, 349, 354, 359, 375).
Furthermore, the spirit of the law prevails over its letter, and
the solution herein adopted maintains the spirit of the
Constitution, for partisan considerations can not be decisive in a
tribunal consisting of three (3) Justices of the Supreme Court,
three (3) members nominated by the majority party and either
one (1) or two (2) members nominated by the party having the
second largest number of votes in the House concerned.
Upon the other hand, what would be the result of respondents'
contention if upheld? Owing to the fact that the Citizens Party
12 has only one member in the Upper House, Senator Tañada
felt he should nominate, for the Senate Electoral Tribunal, only
said member of the Citizens Party. The same is, thus,
numerically handicapped, vis-a-vis the majority party, in said
Tribunal. Obviously, Senator Tañada did not nominate other
two Senators, because, otherwise, he would worsen the already
disadvantageous position, therein, of the Citizens Party. Indeed,
by the aforementioned nomination and election of Senators
Cuenco and Delgado, if the same were sanctioned, the
Nacionalista Party would have five (5) members in the Senate
Electoral Tribunal, as against one (1) member of the Citizens
Party and three members of the Supreme Court. With the
absolute majority thereby attained by the majority party in said
Tribunal, the philosophy underlying the same would be entirely
upset. The equilibrium between the political parties therein
would be destroyed. What is worst, the decisive moderating
role of the Justices of the Supreme Court would be wiped out,
and, in lieu thereof, the door would be thrown wide open for
the predominance of political considerations in the
determination of election protests pending before said Tribunal,
which is precisely what the fathers of our Constitution earnestly
strove to forestall. 13.
This does not imply that the honesty, integrity or impartiality of
Senators Cuenco and Delgado are being questioned. As a matter
of fact, when Senator Tañada objected to their nomination, he
explicitly made of record that his opposition was based, not
upon their character, but upon the principle involved. When the
election of members of Congress to the Electoral Tribunal is
made dependent upon the nomination of the political parties
above referred to, the Constitution thereby indicates its reliance
upon the method of selection thus established, regardless of
the individual qualities of those chosen therefor. Considering
the wealth of experience of the delegatesto the Convention, as
lawyers of great note, as veteran politicians and as leaders in
other fields of endeavor, they could not, and did not, ignore the
fact that the Constitution must limit itself to giving general
patterns or norms of action. In connection, particularly, with the
composition of the Electoral Tribunals, they believed that, even
the most well meaning individuals often find it difficult to shake
off the bias and prejudice created by political antagonisms and
to resist the demands of political exigencies, the pressure of
which is bound to increase in proportion to the degree of
predominance of the party from which it comes. As above
stated, this was confirmed by distinguished members of the
present Senate. (See pp. 25-28, 33, 34, supra.).
In connection with the argument of the former Secretary of
Justice to the effect that when "there is no minority party
represented in the Assembly, the necessity for such a check by
the minority disappears", the following observations of the
petitioners herein are worthy of notice:.
" Under the interpretation espoused by the respondents, the
very frauds or terrorism committed by a party would establish
the legal basis for the final destruction of minority parties in the
Congress at least. Let us suppose, for example, that in the
Senate, the 15 or 16 senators with unexpired terms belong to
the party A. In the senatorial elections to fill the remaining 8
seats, all the 8 candidates of party A are proclaimed elected
through alleged fraud and/or terrorism. (The ouster of not less
than 3 senators-elect in the elections held since liberation
attests to the reality of election frauds and terrorism in our
country.) There being no senator or only one senator belonging
to the minority, who would sit in judgment on the election
candidates of the minority parties? According to the contention
of the respondents, it would be a Senate Electoral Tribunal
made up of three Supreme Court Justices and 5 or 6 members
of the same party A accused of fraud and terrorism. Most
respectfully, we pray this Honorable Court to reject an
interpretation that would make of a democratic constitution the
very instrument by which a corrupt and ruthless party could
entrench itself in power the legislature and thus destroy
democracy in the Philippines.
xxx xxx x x x.
".. When there are no electoral protests filed by the Minority
party, or when the only electoral protests filed are by
candidates of the majority against members-elect of the same
majority party, there might be no objection to the statement.
But if electoral protests are filed by candidates of the minority
party, it is at this point that a need for a check on the majority
party is greatest, and contrary to the observation made in the
above-quoted opinion, such a cheek is a function that cannot be
successfully exercised by the 3 Justices of the Supreme Court,
for the obvious and simple reason that they could easily be
outvoted by the 6 members of the majority party in the
Tribunal.
xxx xxx x x x.
"In the case of the cited opinion of Secretary Abad Santos
rendered in 1939, it, did not appear that there were minority
party candidates who were adversely affected by the ruling of
the Secretary of Justice and who could have brought a test case
to court." (Emphasis supplied.).
The defenses of waiver and estoppel set up against petitioner
Tañada are untenable. Although "an individual may waive
constitutional provisions intended for his benefit", particularly
those meant for the protection of his property, and, sometimes,
even those tending "to secure his personal liberty", the power
to waive does not exist when "public policy or public morals"
are involved. (11 Am. Jur. 765; I Cooley's Constitutional
Limitations, pp. 368-371). The procedure outlined in the
Constitution for the organization, of the Electoral Tribunals was
adopted in response to the demands of the common weal, and
it has been held that where a statute is founded on public
policy, those to whom it applies should not be permitted to
waive its provisions" (82 C. J. S., 874). Besides, there can be no
waiver without an intent to such effect, which Senator Tañada
did not have. Again, the alleged waiver or exhaustion of his
rights does not justify the exercise thereof by a person or party,
other than that to which it is vested exclusively by the
Constitution.
The rule estoppel is that "whenever a party has, by his
declaration, act or omissions, intentionally and deliberately led
another to believe a particular thing true, and to act upon such
belief, he cannot, in a litigation arising out of such declaration,
act or omission, be permitted to falsify it" (Rule 69, sec. 68 [a],
Rules of Court). In the case at bar, petitioner Senator Tañada did
not lead the Senate to believe that Senator Primicias could
nominate Senators Cuenco and Delgado. On the contrary, said
petitioner repeatedly asserted that his was the exclusive right to
make the nomination. He, likewise, specifically contested said
nomination of Senators Cuenco and Delgado. Again, the rule on Accountant (supra), the election of its personnel is an internal
estoppel applies to questions of fact, not of law, about the truth matter falling within the jurisdiction and control of said body,
of which the other party is ignorant (see Moran's Comments on and there is every reason to believe that it will, hereafter take
the Rules of Court, Vol. 3, pp. 490, 495). Such is not the nature appropriate measures, in relation to the four (4) respondents
of the situation that confronted Senator Tañada and the other abovementioned, conformably with the spirit of the
members of the Senate. Lastly, the case of Zandueta vs. De la Constitution and of, the decision in the case at bar.
Costa (66 Phil., 615), cited by respondents, is not in point. Judge
Zandueta assumed office by virtue of an appointment, the Wherefore, judgment is hereby rendered declaring that,
legality of which he later on assailed. In the case at bar, the respondents Senators Mariano Jesus Cuenco and Francisco A.
nomination and election of Senator Tañada as member of the Delgado have not been duly elected as Members of the Senate
Senate Electoral Tribunal was separate, distinct and Electoral Tribunal, that they are not entitled to act as such and
independent from the nomination and election of Senators that they should be, as they are hereby, enjoined from
Cuenco and Delgado. exercising the powers and duties of Members of said Electoral
Tribunal and from acting in such capacity in connection with
In view of the foregoing, we hold that the Senate may not elect, Senate Electoral Case No. 4 thereof. With the qualification
as members of the Senate Electoral Tribunal, those Senators stated above, the petition is dismissed, as regards respondents
who have not been nominated by the political parties specified Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido
in the Constitution; that the party having the largest number of Reyes. Without special pronouncement as to costs. It is so
votes in the Senate may nominate not more than three (3) ordered.
members thereof to said Electoral Tribunal; that the party
having the second largest number of votes in the Senate has the
exclusive right to nominate the other three (3) Senators who
shall sit as members in the Electoral Tribunal; that neither these
three (3) Senators, nor any of them, may be nominated by a
person or party other than the one having the second largest
number of votes in the Senate or its representative therein; that
the Committee on Rules for the Senate has no standing to
validly make such nomination and that the nomination of
Senators Cuenco and Delgado by Senator Primicias, and the
election of said respondents by the Senate, as members of said
Tribunal, are null and void ab initio.

As regards respondents Alfredo Cruz, Catalina Cayetano,

Manuel Serapio and Placido Reyes, we are not prepared to hold,
however, that their appointments were null and void. Although
recommended by Senators Cuenco and Delgado, who are not
lawful members of the Senate Electoral Tribunal, they were
appointed by its Chairman, presumably, with the consent of the
majority of the de jure members of said body 14 or, pursuant to
the Rules thereof. At any rate, as held in Suanes vs. Chief
G.R. No. 86344 December 21, 1989
REP. RAUL A. DAZA, petitioner,
vs.
REP. LUIS C. SINGSON and HON. RAOUL V. VICTORINO IN THE
LATTER'S CAPACITY AS SECRETARY OF THE COMMISSION ON
APPOINTMENTS, respondent.
CRUZ, J.:
After the congressional elections of May 11, 1987, the House of
Representatives proportionally apportioned its twelve seats in
the Commission on Appointments among the several political
parties represented in that chamber, including the Lakas ng
Bansa, the PDP-Laban, the NP-Unido, the Liberal Party, and the
KBL, in accordance with Article VI, Section 18, of the
Constitution. Petitioner Raul A. Daza was among those chosen
and was listed as a representative of the Liberal Party. 1
On September 16, 1988, the Laban ng Demokratikong Pilipino
was reorganized, resulting in a political realignment in the
House of Representatives. Twenty four members of the Liberal
Party formally resigned from that party and joined the LDP,
thereby swelling its number to 159 and correspondingly
reducing their former party to only 17 members. 2
On the basis of this development, the House of Representatives
revised its representation in the Commission on Appointments
by withdrawing the seat occupied by the petitioner and giving
this to the newly-formed LDP. On December 5, 1988, the
chamber elected a new set of representatives consisting of the
original members except the petitioner and including therein
respondent Luis C. Singson as the additional member from the
LDP. 3
The petitioner came to this Court on January 13, 1989, to
challenge his removal from the Commission on Appointments
and the assumption of his seat by the respondent. Acting
initially on his petition for prohibition and injunction with
preliminary injunction, we issued a temporary restraining order
that same day to prevent both the petitioner and the
respondent from serving in the Commission on Appointments.4
Briefly stated, the contention of the petitioner is that he cannot
be removed from the Commission on Appointments because his
election thereto is permanent under the doctrine announced in
Cunanan v. Tan. 5 His claim is that the reorganization of the
House representation in the said body is not based on a
permanent political realignment because the LDP is not a duly
registered political party and has not yet attained political
stability.
For his part, the respondent argues that the question raised by
the petitioner is political in nature and so beyond the
jurisdiction of this Court. He also maintains that he has been
improperly impleaded, the real party respondent being the
House of Representatives which changed its representation in
the Commission on Appointments and removed the petitioner.
Finally, he stresses that nowhere in the Constitution is it
required that the political party be registered to be entitled to
proportional representation in the Commission on
Appointments.
In addition to the pleadings filed by the parties, a Comment was
submitted by the Solicitor General as amicus curiae in
compliance with an order from the Court.
At the core of this controversy is Article VI, Section 18, of the
Constitution providing as follows:
Sec. 18. There shall be a Commission on Appointments
consisting of the President of the Senate, as ex officio
Chairman, twelve Senators and twelve Members of the
House of Representatives, elected by each House on the
basis of proportional representation from the political
parties and parties or organizations registered under
the party-list system represented therein. The Chairman
of the Commission shall not vote, except in case of a tie.
The Commission shall act on all appointments
submitted to it within thirty session days of the
Congress from their submission. The Commission shall
rule by a majority vote of all the Members.
Ruling first on the jurisdictional issue, we hold that, contrary to
the respondent's assertion, the Court has the competence to
act on the matter at bar. Our finding is that what is before us is
not a discretionary act of the House of Representatives that
may not be reviewed by us because it is political in nature.
What is involved here is the legality, not the wisdom, of the act
of that chamber in removing the petitioner from the
Commission on Appointments. That is not a political question
because, as Chief Justice Concepcion explained in Tanada v.
Cuenco. 6
... the term "political question" connotes, in legal
parlance, what it means in ordinary parlance, namely, a
question of policy. In other words, ... it refers "to those
questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the
Government." It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure.
In the aforementioned case, the Court was asked by the
petitioners therein to annul the election of two members of the
Senate Electoral Tribunal of that chamber, on the ground that
they had not been validly nominated. The Senate then consisted
of 23 members from the Nacionalista Party and the petitioner
as the lone member of the Citizens Party. Senator Lorenzo M.
Tanada nominated only himself as the minority representative
in the Tribunal, whereupon the majority elected Senators
Mariano J. Cuenco. and Francisco Delgado, from its own ranks,
to complete the nine-man composition of the Tribunal as
provided for in the 1935 Constitution. The petitioner came to
this Court, contending that under Article VI, Section 11, of that
Charter, the six legislative members of the Tribunal were to be
chosen by the Senate, "three upon nomination of the party
having the largest number of votes and three of the party
having the second largest number of votes therein." As the
majority party in the Senate, the Nacionalista Party could
nominate only three members and could not also fill the other
two seats pertaining to the minority.
By way of special and affirmative defenses, the respondents
contended inter alia that the subject of the petition was an
internal matter that only the Senate could resolve. The Court
rejected this argument, holding that what was involved was not
the wisdom of the Senate in choosing the respondents but the
legality of the choice in light of the requirement of the
Constitution. The petitioners were questioning the manner of
filling the Tribunal, not the discretion of the Senate in doing so.
The Court held that this was a justiciable and not a political
question, thus:
Such is not the nature of the question for determination
in the present case. Here, we are called upon to decide
whether the election of Senators Cuenco and Delgado
by the Senate, as members of the Senate Electoral
Tribunal, upon nomination by Senator Primicias-
member and spokesman of the party having the largest
number of votes in the Senate-behalf of its Committee
on Rules, contravenes the constitutional mandate that
said members of the Senate Electoral Tribunal shall be
chosen "upon nomination ... of the party having the
second largest number of votes" in the Senate and
hence, is null and void. The Senate is not clothed with
"full discretionary authority" in the choice of members
of the Senate Electoral Tribunal. The exercise of its
power thereon is subject to constitutional limitations
which are claimed to be mandatory in nature. It is
clearly within the legitimate province of the judicial
department to pass upon the validity of the proceeding
in connection therewith.
... whether an election of public officers has been in
accordance with law is for the judiciary. Moreover,
where the legislative department has by statute
prescribed election procedure in a given situation, the
judiciary may determine whether a particular election
has been in conformity with such statute, and
particularly, whether such statute has been applied in a
way to deny or transgress on constitutional or statutory
rights ...' (1 6 C.J.S., 439; emphasis supplied)
It is, therefore, our opinion that we have, not only
jurisdiction but also the duty, to consider and
determine the principal issue raised by the parties
herein."
Although not specifically discussed, the same disposition was
made in Cunanan v. Tan as it likewise involved the manner or
legality of the organization of the Commission on
Appointments, not the wisdom or discretion of the House in the
choice of its representatives.
In the case now before us, the jurisdictional objection becomes
even less tenable and decisive. The reason is that, even if we
were to assume that the issue presented before us was political
in nature, we would still not be precluded from resolving it
under the expanded jurisdiction conferred upon us that now
covers, in proper cases, even the political question. Article VII,
Section 1, of the Constitution clearly provides:
Section 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government.
The respondent's contention that he has been improperly
impleaded is even less persuasive. While he may be technically
correct in arguing that it is not he who caused the petitioner's
removal, we feel that this objection is also not an insuperable
obstacle to the resolution of this controversy. We may, for one
thing, treat this proceeding as a petition for quo warranto as the
petitioner is actually questioning the respondent's right to sit as
a member of the Commission on Appointments. For another,
we have held as early as in the Emergency Powers Cases 7 that
where serious constitutional questions are involved, "the
transcendental importance to the public of these cases
demands that they be settled promptly and definitely brushing
aside, if we must, technicalities of procedure." The same policy
has since then been consistently followed by the Court, as in
Gonzales v. Commission on Elections, 8 where we held through
Chief Justice Fernando:
In the course of the deliberations, a serious procedural
objection was raised by five members of the Court. It is
their view that respondent Commission on Elections not
being sought to be restrained from performing any
specific act, this suit cannot be characterized as other
than a mere request for an advisory opinion. Such a
view, from the remedial law standpoint, has much to
recommend it. Nonetheless, a majority would affirm the
original stand that under the circumstances, it could still
rightfully be treated as a petition for prohibition.
The language of justice Laurel fits the case: "All await
the decision of this Court on the constitutional
question. Considering, therefore, the importance which
the instant case has assumed and to prevent multiplicity
of suits, strong reasons of public policy demand that
[its] constitutionality ... be now resolved.' It may
likewise be added that the exceptional character of the
situation that confronts us, the paramount public
interest, and the undeniable necessity for ruling, the
national elections being barely six months away,
reinforce our stand. It would appear undeniable,
therefore, that before us is an appropriate invocation of
 our jurisdiction to prevent the enforcement of an
alleged unconstitutional statute. We are left with no
choice then; we must act on the matter.
Coming now to the more crucial question, the Court notes that
both the petitioner and the respondent are invoking the case of
Cunanan v. Tan to support their respective positions. It is best,
therefore, to make a quick review of that case for a proper
disposition of this one.
In the election for the House of Representatives held in 1961,
72 seats were won by the Nacionalista Party, 29 by the Liberal
Party and 1 by an independent. Accordingly, the representation
of the chamber in the Commission on Appointments was
apportioned to 8 members from the Nacionalista Party and 4
from the Liberal Party. Subsequently, 25 members of the
Nacionalista Party, professing discontent over the House
leadership, made common cause with the Liberal Party and
formed what was called the Allied Majority to install a new
Speaker and reorganize the chamber. Included in this
reorganization was the House representation in the Commission
on appointments where three of the Nacionalista congressmen
originally chosen were displaced by three of their party
colleagues who had joined the Allied Majority.
Petitioner Carlos Cunanan's ad interim appointment as Deputy
Administrator of the Reforestration Administration was rejected
by the Commission on Appointments as thus reorganized and
respondent Jorge Tan, Jr. was thereafter designated in his place.
Cunanan then came to this Court, contending that the rejection
of his appointment was null and void because the Commission
itself was invalidly constituted.
The Court agreed. It noted that the Allied Majority was a merely
temporary combination as the Nacionalista defectors had not
disaffiliated from their party and permanently joined the new
political group. Officially, they were still members of the
Nacionalista Party. The reorganization of the Commission on
Appointments was invalid because it was not based on the
proportional representation of the political parties in the House
of Representatives as required by the Constitution. The Court
held:
... In other words, a shifting of votes at a given time,
even if du to arrangements of a more or less temporary
nature, like the one that has led to the formation of the
so-called "Allied Majority," does not suffice to authorize
a reorganization of the membership of the Commission
for said House. Otherwise the Commission on
Appointments may have to be reorganized as often as
votes shift from one side to another in the House. The
framers of our Constitution could not have intended to
thus place a constitutional organ, like the Commission
on Appointments, at the mercy of each House of
Congress.
The petitioner vigorously argues that the LDP is not the
permanent political party contemplated in the Constitution
because it has not been registered in accordance with Article IX-
B, Section 2(5), in relation to the other provisions of the
Constitution. He stresses that the so-called party has not yet
achieved stability and suggests it might be no different from
several other political groups that have died "a-bornin'," like the
LINA, or have subsequently floundered, like the UNIDO.
The respondent also cites Cunanan but from a different
viewpoint. According to him, that case expressly allows
reorganization at any time to reflect changes in the political
alignments in Congress, provided only that such changes are
permanent. The creation of the LDP constituting the bulk of the
former PDP-Laban and to which no less than 24 Liberal
congressmen had transferred was a permanent change. That
change fully justified his designation to the Commission on
Appointments after the reduction of the LP representation
therein. Thus, the Court held:
Upon the other hand, the constitutional provision to the
effect that "there shall be a Commission on
Appointments consisting of twelve (12) Senators and
twelve (12) members of the House of Representatives
elected by each House, respectively, on the basis of
proportional REPRESENTATION OF THE POLITICAL
PARTIES THEREIN," necessarily connotes the authority
of each House of Congress to see to it that this
requirement is duly complied with. As a consequence, it
may take appropriate measures, not only upon the
initial organization of the Commission, but also,
subsequently thereto. If by reason of successful election
protests against members of a House, or of their
expulsion from the political party to which they
belonged and/or of their affiliation with another
political party, the ratio in the representation of the
political parties in the House is materially changed, the
House is clothed with authority to declare vacant the
necessary number of seats in the Commission on
Appointments held by members of said House
belonging to the political party adversely affected by
the change and then fill said vacancies in conformity
with the Constitution.
In the course of the spirited debate on this matter between the
petitioner and the respondent (who was supported by the
Solicitor General) an important development has supervened to
considerably simplify the present controversy. The petitioner, to
repeat, bases his argument heavily on the non-registration of
the LDP which, he claims has not provided the permanent
political realignment to justify the questioned reorganization. As
he insists:
(c) Assuming that the so-called new coalesced
majority is actually the LDP itself, then the
proposed reorganization is likewise illegal and
ineffectual, because the LDP, not being a duly
registered political party, is not entitled to the
"rights and privileges granted by law to political
parties' (See. 160, BP No. 881), and therefore
cannot legally claim the right to be considered
in determining the required proportional
representation of political parties in the House
of Representatives. 9
 xxx xxx xxx
... the clear constitutional intent behind Section 18,
Article VI, of the 1987 Constitution, is to give the right
of representation in the Commission on Appointment
only to political parties who are duly registered with the
Comelec. 10
On November 23, 1989, however, that argument boomeranged
against the petitioner. On that date, the Commission on
Elections in an en banc resolution affirmed the resolution of its
First Division dated August 28, 1989, granting the petition of the
LDP for registration as a political party. 11 This has taken the
wind out of the sails of the petitioner, so to speak, and he must
now limp to shore as best he can.
The petitioner's contention that, even if registered, the party
must still pass the test of time to prove its permanence is not
acceptable. Under this theory, a registered party obtaining the
majority of the seats in the House of Representatives (or the
Senate) would still not be entitled to representation in the
Commission on Appointments as long as it was organized only
recently and has not yet "aged." The Liberal Party itself would
fall in such a category. That party was created in December
1945 by a faction of the Nacionalista Party that seceded
therefrom to support Manuel A. Roxas's bid for the Presidency
of the Philippines in the election held on April 23, 1946. 12 The
Liberal Party won. At that time it was only four months old. Yet
no question was raised as to its right to be represented in the
Commission on Appointments and in the Electoral Tribunals by
virtue of its status as the majority party in both chambers of the
Congress.
The LDP has been in existence for more than one year now. It
now has 157 members in the House of Representatives and 6
members in the Senate. Its titular head is no less than the
President of the Philippines and its President is Senator Neptali
A. Gonzales, who took over recently from Speaker Ramon V.
Mitra. It is true that there have been, and there still are, some
internal disagreements among its members, but these are to be
expected in any political organization, especially if it is
democratic in structure. In fact even the monolithic Communist
Party in a number of socialist states has undergone similar
dissension, and even upheavals. But it surely cannot be
considered still temporary because of such discord.
If the petitioner's argument were to be pursued, the 157
members of the LDP in the House of Representatives would
have to be denied representation in the Commission on
Appointments and, for that matter, also the Electoral Tribunal.
By the same token, the KBL, which the petitioner says is now
"history only," should also be written off. The independents also
cannot be represented because they belong to no political
party. That would virtually leave the Liberal Party only with all
of its seventeen members to claim all the twelve seats of the
House of Representatives in the Commission on Appointments
and the six legislative seats in the House Electoral Tribunal.
It is noteworthy that when with 41 members the Liberal Party
was alloted two of the seats in the Commission on
Appointments, it did not express any
objection. 13 Inconsistently, the petitioner is now opposed to
the withdrawal from it of one seat although its original number
has been cut by more than half.
As for the other condition suggested by the petitioner, to wit,
that the party must survive in a general congressional election,
the LDP has doubtless also passed that test, if only vicariously. It
may even be said that as it now commands the biggest
following in the House of Representatives, the party has not
only survived but in fact prevailed. At any rate, that test was
never laid down in Cunanan.
To summarize, then, we hold, in view of the foregoing
considerations, that the issue presented to us is justiciable
rather political, involving as it does the legality and not the
wisdom of the act complained of, or the manner of filling the
Commission on Appointments as prescribed by the Constitution.
Even if the question were political in nature, it would still come
within our powers of review under the expanded jurisdiction
conferred upon us by Article VIII, Section 1, of the Constitution,
which includes the authority to determine whether grave abuse
of discretion amounting to excess or lack of jurisdiction has
been committed by any branch or instrumentality of the
government. As for the alleged technical flaw in the designation
of the party respondent, assuming the existence of such a
defect, the same may be brushed aside, conformably to existing
doctrine, so that the important constitutional issue raised may
be addressed. Lastly, we resolve that issue in favor of the
authority of the House of Representatives to change its
representation in the Commission on Appointments to reflect at
any time the changes that may transpire in the political
alignments of its membership. It is understood that such
changes must be permanent and do not include the temporary
alliances or factional divisions not involving severance of
political loyalties or formal disaffiliation and permanent shifts of
allegiance from one political party to another.
The Court would have preferred not to intervene in this matter,
leaving it to be settled by the House of Representatives or the
Commission on Appointments as the bodies directly involved.
But as our jurisdiction has been invoked and, more importantly,
because a constitutional stalemate had to be resolved, there
was no alternative for us except to act, and to act decisively. In
doing so, of course, we are not imposing our will upon the said
agencies, or substituting our discretion for theirs, but merely
discharging our sworn responsibility to interpret and apply the
Constitution. That is a duty we do not evade, lest we ourselves
betray our oath.
WHEREFORE, the petition is DISMISSED. The temporary
restraining order dated January 13, 1989, is LIFTED. The Court
holds that the respondent has been validly elected as a member
of the Commission on Appointments and is entitled to assume
his seat in that body pursuant to Article VI, Section 18, of the
Constitution. No pronouncement as to costs.
SO ORDERED.
G.R. No. 209287 July 1, 2014
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG
ALYANSANG MAKABAYAN; JUDY M. TAGUIWALO, PROFESSOR,
UNIVERSITY OF THE PHILIPPINES DILIMAN, CO-CHAIRPERSON,
PAGBABAGO; HENRI KAHN, CONCERNED CITIZENS
MOVEMENT; REP. LUZ ILAGAN, GABRIELA WOMEN'S PARTY
REPRESENTATIVE; REP. CARLOS ISAGANI ZARATE, BAY AN
MUNA PARTY-LIST REPRESENTATIVE; RENATO M. REYES, JR.,
SECRETARY GENERAL OF BAYAN; MANUEL K. DAYRIT,
CHAIRMAN, ANG KAPATIRAN PARTY; VENCER MARI E.
CRISOSTOMO, CHAIRPERSON, ANAKBAYAN; VICTOR
VILLANUEVA, CONVENOR, YOUTH ACT NOW, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES; PAQUITO N. OCHOA, JR., EXECUTIVE
SECRETARY; AND FLORENCIO B. ABAD, SECRETARY OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
x-----------------------x
BERSAMIN, J.:
For resolution are the consolidated petitions assailing the
constitutionality of the Disbursement Acceleration Program
(DAP), National Budget Circular (NBC) No. 541, and related
issuances of the Department of Budget and Management (DBM)
implementing the DAP.
At the core of the controversy is Section 29(1) of Article VI of
the 1987 Constitution, a provision of the fundamental law that
firmly ordains that "[n]o money shall be paid out of the Treasury
except in pursuance of an appropriation made by law." The
tenor and context of the challenges posed by the petitioners
against the DAP indicate that the DAP contravened this
provision by allowing the Executive to allocate public money
pooled from programmed and unprogrammed funds of its
various agencies in the guise of the President exercising his
constitutional authority under Section 25(5) of the 1987
Constitution to transfer funds out of savings to augment the
appropriations of offices within the Executive Branch of the
Government. But the challenges are further complicated by the
interjection of allegations of transfer of funds to agencies or
offices outside of the Executive.
Antecedents
What has precipitated the controversy?
On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered
a privilege speech in the Senate of the Philippines to reveal that
some Senators, including himself, had been allotted an
additional ₱50 Million each as "incentive" for voting in favor of
the impeachment of Chief Justice Renato C. Corona.
Responding to Sen. Estrada’s revelation, Secretary Florencio
Abad of the DBM issued a public statement entitled Abad:
Releases to Senators Part of Spending Acceleration
Program,1 explaining that the funds released to the Senators
had been part of the DAP, a program designed by the DBM to
ramp up spending to accelerate economic expansion. He
clarified that the funds had been released to the Senators based
on their letters of request for funding; and that it was not the
first time that releases from the DAP had been made because
the DAP had already been instituted in 2011 to ramp up
spending after sluggish disbursements had caused the growth of
the gross domestic product (GDP) to slow down. He explained
that the funds under the DAP were usually taken from (1)
unreleased appropriations under Personnel Services;2 (2)
unprogrammed funds; (3) carry-over appropriations unreleased
from the previous year; and (4) budgets for slow-moving items
or projects that had been realigned to support faster-disbursing
projects.
The DBM soon came out to claim in its website3 that the DAP
releases had been sourced from savings generated by the
Government, and from unprogrammed funds; and that the
savings had been derived from (1) the pooling of unreleased
appropriations, like unreleased Personnel
4 209442 (Belgica), on October 29, 2013; G.R. No. 209517
Services appropriations that would lapse at the end of the year,
unreleased appropriations of slow-moving projects and
discontinued projects per zero based budgeting findings;5 and
(2) the withdrawal of unobligated allotments also for slow-
moving programs and projects that had been earlier released to
the agencies of the National Government.
The DBM listed the following as the legal bases for the DAP’s
use of savings,6 namely: (1) Section 25(5), Article VI of the 1987
Constitution, which granted to the President the authority to
augment an item for his office in the general appropriations
law; (2) Section 49 (Authority to Use Savings for Certain
Purposes) and Section 38 (Suspension of Expenditure
Appropriations), Chapter 5, Book VI of Executive Order (EO) No.
292 (Administrative Code of 1987); and (3) the General
Appropriations Acts (GAAs) of 2011, 2012 and 2013, particularly
their provisions on the (a) use of savings; (b) meanings of
savings and augmentation; and (c) priority in the use of savings.
As for the use of unprogrammed funds under the DAP, the DBM
cited as legal bases the special provisions on unprogrammed
fund contained in the GAAs of 2011, 2012 and 2013.
The revelation of Sen. Estrada and the reactions of Sec. Abad
and the DBM brought the DAP to the consciousness of the
Nation for the first time, and made this present controversy
inevitable. That the issues against the DAP came at a time when
the Nation was still seething in anger over Congressional pork
barrel – "an appropriation of government spending meant for
localized projects and secured solely or primarily to bring
money to a representative’s district"7 – excited the Nation as
heatedly as the pork barrel controversy.
Nine petitions assailing the constitutionality of the DAP and the
issuances relating to the DAP were filed within days of each
other, as follows: G.R. No. 209135 (Syjuco), on October 7, 2013;
G.R. No. 209136 (Luna), on October 7, 2013; G.R. No. 209155
(Villegas),8 on October 16, 2013; G.R. No. 209164 (PHILCONSA),
on October 8, 2013; G.R. No. 209260 (IBP), on October 16, 2013;
G.R. No. 209287 (Araullo), on October 17, 2013; G.R. No.
(COURAGE), on November6, 2013; and G.R. No. 209569 (VACC),
on November 8, 2013.
In G.R. No. 209287 (Araullo), the petitioners brought to the
Court’s attention NBC No. 541 (Adoption of Operational
Efficiency Measure – Withdrawal of Agencies’ Unobligated
Allotments as of June 30, 2012), alleging that NBC No. 541,
which was issued to implement the DAP, directed the
withdrawal of unobligated allotments as of June 30, 2012 of
government agencies and offices with low levels of obligations,
both for continuing and current allotments.
In due time, the respondents filed their Consolidated Comment
through the Office of the Solicitor General (OSG).
The Court directed the holding of oral arguments on the
significant issues raised and joined.
Issues
Under the Advisory issued on November 14, 2013, the
presentations of the parties during the oral arguments were
limited to the following, to wit:
Procedural Issue:
A. Whether or not certiorari, prohibition, and mandamus are
proper remedies to assail the constitutionality and validity of
the Disbursement Acceleration Program (DAP), National Budget
Circular (NBC) No. 541, and all other executive issuances
allegedly implementing the DAP. Subsumed in this issue are
whether there is a controversy ripe for judicial determination,
and the standing of petitioners.
Substantive Issues:
B. Whether or not the DAP violates Sec. 29, Art. VI of the 1987
Constitution, which provides: "No money shall be paid out of
the Treasury except in pursuance of an appropriation made by
law."
C. Whether or not the DAP, NBC No. 541, and all other
executive issuances allegedly implementing the DAP violate Sec.
25(5), Art. VI of the 1987 Constitution insofar as:
(a)They treat the unreleased appropriations and
unobligated allotments withdrawn from
government agencies as "savings" as the term is
used in Sec. 25(5), in relation to the provisions
of the GAAs of 2011, 2012 and 2013;
(b)They authorize the disbursement of funds for
projects or programs not provided in the GAAs
for the Executive Department; and
(c)They "augment" discretionary lump sum
appropriations in the GAAs.
D. Whether or not the DAP violates: (1) the Equal Protection
Clause, (2) the system of checks and balances, and (3) the
principle of public accountability enshrined in the 1987
Constitution considering that it authorizes the release of funds
upon the request of legislators.
E. Whether or not factual and legal justification exists to issue a
temporary restraining order to restrain the implementation of
the DAP, NBC No. 541, and all other executive issuances
allegedly implementing the DAP.
In its Consolidated Comment, the OSG raised the matter of
unprogrammed funds in order to support its argument
regarding the President’s power to spend. During the oral
arguments, the propriety of releasing unprogrammed funds to
support projects under the DAP was considerably discussed. The
petitioners in G.R. No. 209287 (Araullo) and G.R. No. 209442
(Belgica) dwelled on unprogrammed funds in their respective
memoranda. Hence, an additional issue for the oral arguments
is stated as follows:
F. Whether or not the release of unprogrammed funds under
the DAP was in accord with the GAAs.
During the oral arguments held on November 19, 2013, the
Court directed Sec. Abad to submit a list of savings brought
under the DAP that had been sourced from (a) completed
programs; (b) discontinued or abandoned programs; (c) unpaid
appropriations for compensation; (d) a certified copy of the
President’s directive dated June 27, 2012 referred to in NBC No.
541; and (e) all circulars or orders issued in relation to the DAP.9
In compliance, the OSG submitted several documents, as
follows:
(1) A certified copy of the Memorandum for the
President dated June 25, 2012 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and their
Realignment);10
(2) Circulars and orders, which the respondents
identified as related to the DAP, namely:
a. NBC No. 528 dated January 3, 2011
(Guidelines on the Release of Funds for FY
2011);
b. NBC No. 535 dated December 29, 2011
(Guidelines on the Release of Funds for FY
2012);
c. NBC No. 541 dated July 18, 2012 (Adoption of
Operational Efficiency Measure – Withdrawal of
Agencies’ Unobligated Allotments as of June 30,
2012);
 d. NBC No. 545 dated January 2, 2013
(Guidelines on the Release of Funds for FY
2013);
e. DBM Circular Letter No. 2004-2 dated
January 26, 2004 (Budgetary Treatment of
Commitments/Obligations of the National
Government);
f. COA-DBM Joint Circular No. 2013-1 dated
March 15, 2013 (Revised Guidelines on the
Submission of Quarterly Accountability Reports
on Appropriations, Allotments, Obligations and
Disbursements);
g. NBC No. 440 dated January 30, 1995
(Adoption of a Simplified Fund Release System
in the Government).
(3) A breakdown of the sources of savings, including
savings from discontinued projects and unpaid
appropriations for compensation from 2011 to 2013
On January 28, 2014, the OSG, to comply with the Resolution
issued on January 21, 2014 directing the respondents to submit
the documents not yet submitted in compliance with the
directives of the Court or its Members, submitted several
evidence packets to aid the Court in understanding the factual
bases of the DAP, to wit:
(1) First Evidence Packet11 – containing seven
memoranda issued by the DBM through Sec. Abad,
inclusive of annexes, listing in detail the 116 DAP
identified projects approved and duly signed by the
President, as follows:
a. Memorandum for the President dated
October 12, 2011 (FY 2011 Proposed
Disbursement Acceleration Program (Projects
and Sources of Funds);
b. Memorandum for the President dated
December 12, 2011 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and its
Realignment);
c. Memorandum for the President dated June
25, 2012 (Omnibus Authority to Consolidate
Savings/Unutilized Balances and their
Realignment);
d. Memorandum for the President dated
September 4, 2012 (Release of funds for other
priority projects and expenditures of the
Government);
e. Memorandum for the President dated
December 19, 2012 (Proposed Priority Projects
and Expenditures of the Government);
f. Memorandum for the President dated May
20, 2013 (Omnibus Authority to Consolidate
Savings/Unutilized Balances and their
Realignment to Fund the Quarterly
Disbursement Acceleration Program); and
g. Memorandum for the President dated
September 25, 2013 (Funding for the Task Force
Pablo Rehabilitation Plan).
(2) Second Evidence Packet12 – consisting of 15
applications of the DAP, with their corresponding
Special Allotment Release Orders (SAROs) and
appropriation covers;
(3) Third Evidence Packet13 – containing a list and
descriptions of 12 projects under the DAP;
(4) Fourth Evidence Packet14 – identifying the DAP-
related portions of the Annual Financial Report (AFR) of
the Commission on Audit for 2011 and 2012;
(5) Fifth Evidence Packet15 – containing a letter of
Department of Transportation and
Communications(DOTC) Sec. Joseph Abaya addressed to
Sec. Abad recommending the withdrawal of funds from
his agency, inclusive of annexes; and
(6) Sixth Evidence Packet16 – a print-out of the Solicitor
General’s visual presentation for the January 28, 2014
oral arguments.
On February 5, 2014,17 the OSG forwarded the Seventh
Evidence Packet,18 which listed the sources of funds brought
under the DAP, the uses of such funds per project or activity
pursuant to DAP, and the legal bases thereof.
On February 14, 2014, the OSG submitted another set of
documents in further compliance with the Resolution dated
January 28, 2014, viz:
(1) Certified copies of the certifications issued by the Bureau of
Treasury to the effect that the revenue collections exceeded the
original revenue targets for the years 2011, 2012 and 2013,
including collections arising from sources not considered in the
original revenue targets, which certifications were required for
the release of the unprogrammed funds as provided in Special
Provision No. 1 of Article XLV, Article XVI, and Article XLV of the
2011, 2012 and 2013 GAAs; and (2) A report on releases of
savings of the Executive Department for the use of the
Constitutional Commissions and other branches of the
Government, as well as the fund releases to the Senate and the
Commission on Elections (COMELEC).
RULING to sue because no allegations were made to the effect that they special civil action for certiorari under Rule 64 of the Rules of
had suffered any injury as a result of the adoption of the DAP Court.24
I. and issuance of NBC No. 541; that their being taxpayers did not
immediately confer upon the petitioners the legal standing to The respondents’ arguments and submissions on the procedural
Procedural Issue: sue considering that the adoption and implementation of the issue are bereft of merit.
DAP and the issuance of NBC No. 541 were not in the exercise
a) The petitions under Rule 65 are proper remedies of the taxing or spending power of Congress;20 and that even if Section 1, Article VIII of the 1987 Constitution expressly
the petitioners had suffered injury, there were plain, speedy provides:
All the petitions are filed under Rule 65 of the Rules of Court, and adequate remedies in the ordinary course of law available
and include applications for the issuance of writs of preliminary to them, like assailing the regularity of the DAP and related Section 1. The judicial power shall be vested in one Supreme
prohibitory injunction or temporary restraining orders. More issuances before the Commission on Audit (COA) or in the trial Court and in such lower courts as may be established by law.
specifically, the nature of the petitions is individually set forth courts.21
hereunder, to wit: Judicial power includes the duty of the courts of justice to settle
The respondents aver that the special civil actions of certiorari actual controversies involving rights which are legally
and prohibition are not proper actions for directly assailing the demandable and enforceable, and to determine whether or not
G.R. No. 209135 Certiorari, Prohibition and
constitutionality and validity of the DAP, NBC No. 541, and the there has been a grave abuse of discretion amounting to lack or
(Syjuco) Mandamus
other executive issuances implementing the DAP.22 excess of jurisdiction on the part of any branch or
G.R. No. 209136 (Luna) Certiorariand Prohibition instrumentality of the Government.
In their memorandum, the respondents further contend that
G.R. No. 209155 there is no authorized proceeding under the Constitution and Thus, the Constitution vests judicial power in the Court and in
Certiorariand Prohibition
(Villegas) the Rules of Court for questioning the validity of any law unless such lower courts as may be established by law. In creating a
there is an actual case or controversy the resolution of which lower court, Congress concomitantly determines the jurisdiction
G.R. No. 209164
Certiorariand Prohibition requires the determination of the constitutional question; that of that court, and that court, upon its creation, becomes by
(PHILCONSA)
the jurisdiction of the Court is largely appellate; that for a court operation of the Constitution one of the repositories of judicial
G.R. No. 209260 (IBP) Prohibition of law to pass upon the constitutionality of a law or any act of power.25 However, only the Court is a constitutionally created
the Government when there is no case or controversy is for that court, the rest being created by Congress in its exercise of the
G.R. No. 209287 court to set itself up as a reviewer of the acts of Congress and of legislative power.
Certiorariand Prohibition
(Araullo) the President in violation of the principle of separation of
powers; and that, in the absence of a pending case or The Constitution states that judicial power includes the duty of
G.R. No. 209442
Certiorari controversy involving the DAP and NBC No. 541, any decision the courts of justice not only "to settle actual controversies
(Belgica)
herein could amount to a mere advisory opinion that no court involving rights which are legally demandable and enforceable"
G.R. No. 209517 can validly render.23 but also "to determine whether or not there has been a grave
Certiorari and Prohibition
(COURAGE) abuse of discretion amounting to lack or excess of jurisdiction
The respondents argue that it is the application of the DAP to on the part of any branch or instrumentality of the
G.R. No. 209569 (VACC) Certiorari and Prohibition actual situations that the petitioners can question either in the Government." It has thereby expanded the concept of judicial
trial courts or in the COA; that if the petitioners are dissatisfied power, which up to then was confined to its traditional ambit of
The respondents submit that there is no actual controversy that with the ruling either of the trial courts or of the COA, they can settling actual controversies involving rights that were legally
is ripe for adjudication in the absence of adverse claims appeal the decision of the trial courts by petition for review on demandable and enforceable.
between the parties;19 that the petitioners lacked legal standing certiorari, or assail the decision or final order of the COA by
The background and rationale of the expansion of judicial power
under the 1987 Constitution were laid out during the
deliberations of the 1986 Constitutional Commission by
Commissioner Roberto R. Concepcion (a former Chief Justice of
the Philippines) in his sponsorship of the proposed provisions
on the Judiciary, where he said:–
The Supreme Court, like all other courts, has one main function:
to settle actual controversies involving conflicts of rights which
are demandable and enforceable. There are rights which are
guaranteed by law but cannot be enforced by a judicial party. In
a decided case, a husband complained that his wife was
unwilling to perform her duties as a wife. The Court said: "We
can tell your wife what her duties as such are and that she is
bound to comply with them, but we cannot force her physically
to discharge her main marital duty to her husband. There are
some rights guaranteed by law, but they are so personal that to
enforce them by actual compulsion would be highly derogatory
to human dignity." This is why the first part of the second
paragraph of Section 1 provides that: Judicial power includes
the duty of courts to settle actual controversies involving rights
which are legally demandable or enforceable…
The courts, therefore, cannot entertain, much less decide,
hypothetical questions. In a presidential system of government,
the Supreme Court has, also, another important function. The
powers of government are generally considered divided into
three branches: the Legislative, the Executive and the Judiciary.
Each one is supreme within its own sphere and independent of
the others. Because of that supremacy power to determine
whether a given law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of
the agencies and offices of the government as well as those of
its officers. In other words, the judiciary is the final arbiter on
the question whether or not a branch of government or any of
its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass
judgmenton matters of this nature.
This is the background of paragraph 2 of Section 1, which means
that the courts cannot hereafter evade the duty to settle
matters of this nature, by claiming that such matters constitute
a political question. (Bold emphasis supplied)26
Upon interpellation by Commissioner Nolledo, Commissioner
Concepcion clarified the scope of judicial power in the following
manner:–
MR. NOLLEDO. x x x
The second paragraph of Section 1 states: "Judicial power
includes the duty of courts of justice to settle actual
controversies…" The term "actual controversies" according to
the Commissioner should refer to questions which are political
in nature and, therefore, the courts should not refuse to decide
those political questions. But do I understand it right that this is
restrictive or only an example? I know there are cases which are
not actual yet the court can assume jurisdiction. An example is
the petition for declaratory relief.
May I ask the Commissioner’s opinion about that?
MR. CONCEPCION. The Supreme Court has no jurisdiction to
grant declaratory judgments.
MR. NOLLEDO. The Gentleman used the term "judicial power"
but judicial power is not vested in the Supreme Court alone but
also in other lower courts as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems
to identify political questions with jurisdictional questions. But
there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to
ordinary cases but where there is a question as to whether the
government had authority or had abused its authority to the
extent of lacking jurisdiction or excess of jurisdiction, that is not
a political question. Therefore, the court has the duty to
decide.27
Our previous Constitutions equally recognized the extent of the
power of judicial review and the great responsibility of the
Judiciary in maintaining the allocation of powers among the
three great branches of Government. Speaking for the Court in
Angara v. Electoral Commission,28 Justice Jose P. Laurel intoned:
x x x In times of social disquietude or political excitement, the
great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the
judicial department is the only constitutional organ which can
be called upon to determine the proper allocation of powers
between the several department and among the integral or
constituent units thereof.
xxxx
The Constitution is a definition of the powers of government.
Who is to determine the nature, scope and extent of such
powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when
the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other department; 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. This is in truth all that is involved in what is
termed "judicial supremacy" which properly is the power of
judicial review under the Constitution. x x x29
What are the remedies by which the grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government may be
determined under the Constitution?
The present Rules of Court uses two special civil actions for
determining and correcting grave abuse of discretion amounting
to lack or excess of jurisdiction. These are the special civil
actions for certiorari and prohibition, and both are governed by
Rule 65. A similar remedy of certiorari exists under Rule 64, but
the remedy is expressly applicable only to the judgments and
final orders or resolutions of the Commission on Elections and
the Commission on Audit.
The ordinary nature and function of the writ of certiorari in our
present system are aptly explained in Delos Santos v.
Metropolitan Bank and Trust Company:30
In the common law, from which the remedy of certiorari
evolved, the writ of certiorari was issued out of Chancery, or the
King’s Bench, commanding agents or officers of the inferior
courts to return the record of a cause pending before them, so
as to give the party more sure and speedy justice, for the writ
would enable the superior court to determine from an
inspection of the record whether the inferior court’s judgment
was rendered without authority. The errors were of such a
nature that, if allowed to stand, they would result in a
substantial injury to the petitioner to whom no other remedy
was available. If the inferior court acted without authority, the
record was then revised and corrected in matters of law. The
writ of certiorari was limited to cases in which the inferior court
was said to be exceeding its jurisdiction or was not proceeding
according to essential requirements of law and would lie only to
review judicial or quasi-judicial acts.
The concept of the remedy of certiorari in our judicial system
remains much the same as it has been in the common law. In
this jurisdiction, however, the exercise of the power to issue the
writ of certiorari is largely regulated by laying down the
instances or situations in the Rules of Court in which a superior
court may issue the writ of certiorari to an inferior court or
officer. Section 1, Rule 65 of the Rules of Court compellingly
provides the requirements for that purpose, viz:
xxxx
The sole office of the writ of certiorari is the correction of errors
of jurisdiction, which includes the commission of grave abuse of
discretion amounting to lack of jurisdiction. In this regard, mere
abuse of discretion is not enough to warrant the issuance of the
writ. The abuse of discretion must be grave, which means either
that the judicial or quasi-judicial power was exercised in an
arbitrary or despotic manner by reason of passion or personal
hostility, or that the respondent judge, tribunal or board evaded
a positive duty, or virtually refused to perform the duty
enjoined or to act in contemplation of law, such as when such
judge, tribunal or board exercising judicial or quasi-judicial
powers acted in a capricious or whimsical manner as to be
equivalent to lack of jurisdiction.31
Although similar to prohibition in that it will lie for want or
excess of jurisdiction, certiorari is to be distinguished from
prohibition by the fact that it is a corrective remedy used for the
re-examination of some action of an inferior tribunal, and is
directed to the cause or proceeding in the lower court and not
to the court itself, while prohibition is a preventative remedy
issuing to restrain future action, and is directed to the court
itself.32 The Court expounded on the nature and function of the
writ of prohibition in Holy Spirit Homeowners Association, Inc.
v. Defensor:33
A petition for prohibition is also not the proper remedy to assail
an IRR issued in the exercise of a quasi-legislative function.
Prohibition is an extraordinary writ directed against any
tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions,
ordering said entity or person to desist from further
proceedings when said proceedings are without or in excess of
said entity’s or person’s jurisdiction, or are accompanied with
grave abuse of discretion, and there is no appeal or any other
plain, speedy and adequate remedy in the ordinary course of
law. Prohibition lies against judicial or ministerial functions, but
not against legislative or quasi-legislative functions. Generally,
the purpose of a writ of prohibition is to keep a lower court
within the limits of its jurisdiction in order to maintain the
administration of justice in orderly channels. Prohibition is the
proper remedy to afford relief against usurpation of jurisdiction
or power by an inferior court, or when, in the exercise of
jurisdiction in handling matters clearly within its cognizance the
inferior court transgresses the bounds prescribed to it by the
law, or where there is no adequate remedy available in the
ordinary course of law by which such relief can be obtained.
Where the principal relief sought is to invalidate an IRR,
petitioners’ remedy is an ordinary action for its nullification, an
action which properly falls under the jurisdiction of the Regional
Trial Court. In any case, petitioners’ allegation that
"respondents are performing or threatening to perform
functions without or in excess of their jurisdiction" may
appropriately be enjoined by the trial court through a writ of
injunction or a temporary restraining order.
With respect to the Court, however, the remedies of certiorari
and prohibition are necessarily broader in scope and reach, and
the writ of certiorari or prohibition may be issued to correct
errors of jurisdiction committed not only by a tribunal,
corporation, board or officer exercising judicial, quasi-judicial or
ministerial functions but also to set right, undo and restrain any
act of grave abuse of discretion amounting to lack or excess of
jurisdiction by any branch or instrumentality of the
Government, even if the latter does not exercise judicial, quasi-
judicial or ministerial functions. This application is expressly
authorized by the text of the second paragraph of Section 1,
supra.
Thus, petitions for certiorari and prohibition are appropriate
remedies to raise constitutional issues and to review and/or
prohibit or nullify the acts of legislative and executive officials.34
Necessarily, in discharging its duty under Section 1, supra, to set
right and undo any act of grave abuse of discretion amounting
to lack or excess of jurisdiction by any branch or instrumentality
of the Government, the Court is not at all precluded from
making the inquiry provided the challenge was properly brought
by interested or affected parties. The Court has been thereby
entrusted expressly or by necessary implication with both the
duty and the obligation of determining, in appropriate cases,
the validity of any assailed legislative or executive action. This
entrustment is consistent with the republican system of checks
and balances.35
Following our recent dispositions concerning the congressional
pork barrel, the Court has become more alert to discharge its
constitutional duty. We will not now refrain from exercising our
expanded judicial power in order to review and determine, with
authority, the limitations on the Chief Executive’s spending
power.
b) Requisites for the exercise of the
power of judicial review were
complied with
The requisites for the exercise of the power of judicial review
are the following, namely: (1) there must bean actual case or
justiciable controversy before the Court; (2) the question before
the Court must be ripe for adjudication; (3) the person
challenging the act must be a proper party; and (4) the issue of
constitutionality must be raised at the earliest opportunity and
must be the very litis mota of the case.36
The first requisite demands that there be an actual case calling
for the exercise of judicial power by the Court.37 An actual case
or controversy, in the words of Belgica v. Executive Secretary
Ochoa:38
x x x is one which involves a conflict of legal rights, an assertion
of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or
dispute. In other words, "[t]here must be a contrariety of legal
rights that can be interpreted and enforced on the basis of
existing law and jurisprudence." Related to the requirement of
an actual case or controversy is the requirement of "ripeness,"
meaning that the questions raised for constitutional scrutiny are
already ripe for adjudication. "A question is ripe for adjudication
when the act being challenged has had a direct adverse effect
on the individual challenging it. It is a prerequisite that
something had then been accomplished or performed by either
branch before a court may come into the picture, and the
petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action."
"Withal, courts will decline to pass upon constitutional issues
through advisory opinions, bereft as they are of authority to
resolve hypothetical or moot questions."
An actual and justiciable controversy exists in these
consolidated cases. The incompatibility of the perspectives of
the parties on the constitutionality of the DAP and its relevant
issuances satisfy the requirement for a conflict between legal
rights. The issues being raised herein meet the requisite
ripeness considering that the challenged executive acts were
already being implemented by the DBM, and there are
averments by the petitioners that such implementation was
repugnant to the letter and spirit of the Constitution. Moreover,
the implementation of the DAP entailed the allocation and
expenditure of huge sums of public funds. The fact that public
funds have been allocated, disbursed or utilized by reason or on
account of such challenged executive acts gave rise, therefore,
to an actual controversy that is ripe for adjudication by the
Court.
It is true that Sec. Abad manifested during the January 28, 2014
oral arguments that the DAP as a program had been meanwhile
discontinued because it had fully served its purpose, saying: "In
conclusion, Your Honors, may I inform the Court that because
the DAP has already fully served its purpose, the
Administration’s economic managers have recommended its
termination to the President. x x x."39
The Solicitor General then quickly confirmed the termination of
the DAP as a program, and urged that its termination had
already mooted the challenges to the DAP’s constitutionality,
viz:
DAP as a program, no longer exists, thereby mooting these
present cases brought to challenge its constitutionality. Any
constitutional challenge should no longer be at the level of the
program, which is now extinct, but at the level of its prior
applications or the specific disbursements under the now
defunct policy. We challenge the petitioners to pick and choose
which among the 116 DAP projects they wish to nullify, the full
details we will have provided by February 5. We urge this Court
to be cautious in limiting the constitutional authority of the
President and the Legislature to respond to the dynamic needs
of the country and the evolving demands of governance, lest we
end up straight jacketing our elected representatives in ways
not consistent with our constitutional structure and democratic
principles.40
A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so that a
declaration thereon would be of no practical use or value.41
The Court cannot agree that the termination of the DAP as a
program was a supervening event that effectively mooted these
consolidated cases. Verily, the Court had in the past exercised
its power of judicial review despite the cases being rendered
moot and academic by supervening events, like: (1) when there
was a grave violation of the Constitution; (2) when the case
involved a situation of exceptional character and was of
paramount public interest; (3) when the constitutional issue
raised required the formulation of controlling principles to
guide the Bench, the Bar and the public; and (4) when the case
was capable of repetition yet evading review.42
Assuming that the petitioners’ several submissions against the
DAP were ultimately sustained by the Court here, these cases
would definitely come under all the exceptions. Hence, the
Court should not abstain from exercising its power of judicial
review.
Did the petitioners have the legal standing to sue?
Legal standing, as a requisite for the exercise of judicial review,
refers to "a right of appearance in a court of justice on a given
question."43 The concept of legal standing, or locus standi, was
particularly discussed in De Castro v. Judicial and Bar
Council,44 where the Court said:
In public or constitutional litigations, the Court is often
burdened with the determination of the locus standi of the
petitioners due to the ever-present need to regulate the
invocation of the intervention of the Court to correct any official
action or policy in order to avoid obstructing the efficient
functioning of public officials and offices involved in public
service. It is required, therefore, that the petitioner must have a
personal stake in the outcome of the controversy, for, as
indicated in Agan, Jr. v. Philippine International Air Terminals
Co., Inc.:
The question on legal standing is whether such parties have
"alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional
questions." Accordingly, it has been held that the interest of a
person assailing the constitutionality of a statute must be direct
and personal. He must be able to show, not only that the law or
any government act is invalid, but also that he sustained or is in
imminent danger of sustaining some direct injury as a result of
its enforcement, and not merely that he suffers thereby in some
indefinite way. It must appear that the person complaining has
been or is about to be denied some right or privilege to which
he is lawfully entitled or that he is about to be subjected to
some burdens or penalties by reason of the statute or act
complained of.
It is true that as early as in 1937, in People v. Vera, the Court
adopted the direct injury test for determining whether a
petitioner in a public action had locus standi. There, the Court
held that the person who would assail 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."
Vera was followed in Custodio v. President of the Senate,
Manila Race Horse Trainers’ Association v. De la Fuente, Anti-
Chinese League of the Philippines v. Felix, and Pascual v.
Secretary of Public Works.
Yet, the Court has also held that the requirement of locus
standi, being a mere procedural technicality, can be waived by
the Court in the exercise of its discretion. For instance, in 1949,
in Araneta v. Dinglasan, the Court liberalized the approach
when the cases had "transcendental importance." Some notable
controversies whose petitioners did not pass the direct injury
test were allowed to be treated in the same way as in Araneta v.
Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this
Court decided to resolve the issues raised by the petition due to
their "far reaching implications," even if the petitioner had no
personality to file the suit. The liberal approach of Aquino v.
Commission on Elections has been adopted in several notable
cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality
or validity of laws, regulations, and rulings.
However, the assertion of a public right as a predicate for
challenging a supposedly illegal or unconstitutional executive or
legislative action rests on the theory that the petitioner
represents the public in general. Although such petitioner may
not be as adversely affected by the action complained against as
are others, it is enough that he sufficiently demonstrates in his
petition that he is entitled to protection or relief from the Court
in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a
citizen or taxpayer to gain locus standi. That is not surprising,
for even if the issue may appear to concern only the public in
general, such capacities nonetheless equip the petitioner with
adequate interest to sue. In David v. Macapagal-Arroyo, the
Court aptly explains why:
Case law in most jurisdiction snow 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 taxpayer’s suit is in a different category from the
plaintiff in a citizen’s 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, however…the people are the real
parties…It 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 taxpayer’s 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."45
The Court has cogently observed in Agan, Jr. v. Philippine
International Air Terminals Co., Inc.46 that "[s]tanding is a
peculiar concept in constitutional law because in some cases,
suits are not brought by parties who have been personally
injured by the operation of a law or any other government act
but by concerned citizens, taxpayers or voters who actually sue
in the public interest."
Except for PHILCONSA, a petitioner in G.R. No. 209164, the
petitioners have invoked their capacities as taxpayers who, by
averring that the issuance and implementation of the DAP and
its relevant issuances involved the illegal disbursements of
public funds, have an interest in preventing the further
dissipation of public funds. The petitioners in G.R. No. 209287
(Araullo) and G.R. No. 209442 (Belgica) also assert their right as
citizens to sue for the enforcement and observance of the
constitutional limitations on the political branches of the
Government.47
On its part, PHILCONSA simply reminds that the Court has long
recognized its legal standing to bring cases upon constitutional
issues.48 Luna, the petitioner in G.R. No. 209136, cites his
additional capacity as a lawyer. The IBP, the petitioner in G.R.
No. 209260, stands by "its avowed duty to work for the rule of
law and of paramount importance of the question in this action,
not to mention its civic duty as the official association of all
lawyers in this country."49
Under their respective circumstances, each of the petitioners
has established sufficient interest in the outcome of the
controversy as to confer locus standi on each of them.
In addition, considering that the issues center on the extent of
the power of the Chief Executive to disburse and allocate public
funds, whether appropriated by Congress or not, these cases
pose issues that are of transcendental importance to the entire
Nation, the petitioners included. As such, the determination of
such important issues call for the Court’s exercise of its broad
and wise discretion "to waive the requirement and so remove
the impediment to its addressing and resolving the serious
constitutional questions raised."50
II.
Substantive Issues
1.
Overview of the Budget System
An understanding of the Budget System of the Philippines will
aid the Court in properly appreciating and justly resolving the
substantive issues.
a) Origin of the Budget System
The term "budget" originated from the Middle English word
bouget that had derived from the Latin word bulga (which
means bag or purse).51
In the Philippine setting, Commonwealth Act (CA) No. 246
(Budget Act) defined "budget" as the financial program of the
National Government for a designated fiscal year, consisting of
the statements of estimated receipts and expenditures for the
fiscal year for which it was intended to be effective based on
the results of operations during the preceding fiscal years. The
term was given a different meaning under Republic Act No. 992
(Revised Budget Act) by describing the budget as the
delineation of the services and products, or benefits that would
accrue to the public together with the estimated unit cost of
each type of service, product or benefit.52 For a forthright
definition, budget should simply be identified as the financial
plan of the Government,53 or "the master plan of
government."54
The concept of budgeting has not been the product of recent
economies. In reality, financing public goals and activities was
an idea that existed from the creation of the State.55 To protect
the people, the territory and sovereignty of the State, its
government must perform vital functions that required public
expenditures. At the beginning, enormous public expenditures
were spent for war activities, preservation of peace and order,
security, administration of justice, religion, and supply of limited
goods and services.56 In order to finance those expenditures,
the State raised revenues through taxes and
57
impositions. Thus, budgeting became necessary to allocate
public revenues for specific government functions.58 The State’s
budgeting mechanism eventually developed through the years
with the growing functions of its government and changes in its
market economy.
The Philippine Budget System has been greatly influenced by
western public financial institutions. This is because of the
country’s past as a colony successively of Spain and the United
States for a long period of time. Many aspects of the country’s
public fiscal administration, including its Budget System, have
been naturally patterned after the practices and experiences of
the western public financial institutions. At any rate, the
Philippine Budget System is presently guided by two principal
objectives that are vital to the development of a progressive
democratic government, namely: (1) to carry on all government
activities under a comprehensive fiscal plan developed,
authorized and executed in accordance with the Constitution,
prevailing statutes and the principles of sound public
management; and (2) to provide for the periodic review and
disclosure of the budgetary status of the Government in such
detail so that persons entrusted by law with the responsibility
as well as the enlightened citizenry can determine the adequacy
of the budget actions taken, authorized or proposed, as well as
the true financial position of the Government.59
b) Evolution of the Philippine Budget System
The budget process in the Philippines evolved from the early
years of the American Regime up to the passage of the Jones
Law in 1916. A Budget Office was created within the
Department of Finance by the Jones Law to discharge the
budgeting function, and was given the responsibility to assist in
the preparation of an executive budget for submission to the
Philippine Legislature.60
As early as under the 1935 Constitution, a budget policy and a
budget procedure were established, and subsequently
strengthened through the enactment of laws and executive
acts.61 EO No. 25, issued by President Manuel L. Quezon on April
25, 1936, created the Budget Commission to serve as the
agency that carried out the President’s responsibility of
preparing the budget.62 CA No. 246, the first budget law, went
into effect on January 1, 1938 and established the Philippine
budget process. The law also provided a line-item budget as the
framework of the Government’s budgeting system,63 with
emphasis on the observance of a "balanced budget" to tie up
proposed expenditures with existing revenues.
CA No. 246 governed the budget process until the passage on
June 4, 1954 of Republic Act (RA) No. 992,whereby Congress
introduced performance-budgeting to give importance to
functions, projects and activities in terms of expected
results.64 RA No. 992 also enhanced the role of the Budget
Commission as the fiscal arm of the Government.65
The 1973 Constitution and various presidential decrees directed
a series of budgetary reforms that culminated in the enactment
of PD No. 1177 that President Marcos issued on July30, 1977,
and of PD No. 1405, issued on June 11, 1978. The latter decree
converted the Budget Commission into the Ministry of Budget,
and gave its head the rank of a Cabinet member.
The Ministry of Budget was later renamed the Office of Budget
and Management (OBM) under EO No. 711. The OBM became
the DBM pursuant to EO No. 292 effective on November 24,
1989.
66
c) The Philippine Budget Cycle
Four phases comprise the Philippine budget process,
specifically: (1) Budget Preparation; (2) Budget Legislation; (3)
Budget Execution; and (4) Accountability. Each phase is
distinctly separate from the others but they overlap in the
implementation of the budget during the budget year.
c.1.Budget Preparation67
The budget preparation phase is commenced through the
issuance of a Budget Call by the DBM. The Budget Call contains
budget parameters earlier set by the Development Budget
Coordination Committee (DBCC) as well as policy guidelines and
procedures to aid government agencies in the preparation and
submission of their budget proposals. The Budget Call is of two
kinds, namely: (1) a National Budget Call, which is addressed to
all agencies, including state universities and colleges; and (2) a
Corporate Budget Call, which is addressed to all government-
owned and -controlled corporations (GOCCs) and government
financial institutions (GFIs).
Following the issuance of the Budget Call, the various
departments and agencies submit their respective Agency
Budget Proposals to the DBM. To boost citizen participation, the
current administration has tasked the various departments and
agencies to partner with civil society organizations and other
citizen-stakeholders in the preparation of the Agency Budget
Proposals, which proposals are then presented before a
technical panel of the DBM in scheduled budget hearings
wherein the various departments and agencies are given the
opportunity to defend their budget proposals. DBM bureaus
thereafter review the Agency Budget Proposals and come up
with recommendations for the Executive Review Board,
comprised by the DBM Secretary and the DBM’s senior officials.
The discussions of the Executive Review Board cover the
prioritization of programs and their corresponding support vis-
à-vis the priority agenda of the National Government, and their
implementation.
The DBM next consolidates the recommended agency budgets
into the National Expenditure Program (NEP)and a Budget of
Expenditures and Sources of Financing (BESF). The NEP provides
the details of spending for each department and agency by
program, activity or project (PAP), and is submitted in the form
of a proposed GAA. The Details of Selected Programs and
Projects is the more detailed disaggregation of key PAPs in the
NEP, especially those in line with the National Government’s
development plan. The Staffing Summary provides the staffing
complement of each department and agency, including the
number of positions and amounts allocated.
The NEP and BESF are thereafter presented by the DBM and the
DBCC to the President and the Cabinet for further refinements
or reprioritization. Once the NEP and the BESF are approved by
the President and the Cabinet, the DBM prepares the budget
documents for submission to Congress. The budget documents
consist of: (1) the President’s Budget Message, through which
the President explains the policy framework and budget
priorities; (2) the BESF, mandated by Section 22, Article VII of
the Constitution,68 which contains the macroeconomic
assumptions, public sector context, breakdown of the
expenditures and funding sources for the fiscal year and the two
previous years; and (3) the NEP.
Public or government expenditures are generally classified into
two categories, specifically: (1) capital expenditures or outlays;
and (2) current operating expenditures. Capital expenditures
are the expenses whose usefulness lasts for more than one
year, and which add to the assets of the Government, including
investments in the capital of government-owned or controlled
corporations and their subsidiaries.69 Current operating
expenditures are the purchases of goods and services in current
consumption the benefit of which does not extend beyond the
fiscal year.70 The two components of current expenditures are
those for personal services (PS), and those for maintenance and
other operating expenses(MOOE).
Public expenditures are also broadly grouped according to their
functions into: (1) economic development expenditures (i.e.,
expenditures on agriculture and natural resources,
transportation and communications, commerce and industry,
and other economic development efforts);71 (2) social services
or social development expenditures (i.e., government outlay on
education, public health and medicare, labor and welfare and
others);72 (3) general government or general public services
expenditures (i.e., expenditures for the general government,
legislative services, the administration of justice, and for
pensions and gratuities);73 (4) national defense expenditures
(i.e., sub-divided into national security expenditures and
expenditures for the maintenance of peace and order);74 and (5)
public debt.75
Public expenditures may further be classified according to the
nature of funds, i.e., general fund, special fund or bond fund.76
On the other hand, public revenues complement public
expenditures and cover all income or receipts of the
government treasury used to support government
expenditures.77
Classical economist Adam Smith categorized public revenues National 2. Property Taxes
based on two principal sources, stating: "The revenue which Government c.2. Budget Legislation86
must defray…the necessary expenses of government may be 3. Taxes on Goods and Services
drawn either, first from some fund which peculiarly belongs to 2. Subsidy from Central 4. Taxes on International Trade
The Budget Legislation Phase covers the period commencing
the sovereign or commonwealth, and which is independent of Office and from the time Congress receives the President’s Budget, which
the revenue of the people, or, secondly, from the revenue of 3. Subsidy from Regional Transactions is inclusive of the NEPand the BESF, up to the President’s
the people."78 Adam Smith’s classification relied on the two Office/Staff Bureaus 5. Other Taxes 6.Fines and approval of the GAA. This phase is also known as the Budget
aspects of the nature of the State: first, the State as a juristic 4. Income from Penalties-Tax Revenue Authorization Phase, and involves the significant participation of
person with an artificial personality, and, second, the State as a Government the Legislative through its deliberations.
sovereign or entity possessing supreme power. Under the first 7. Other Specific Income
Services
aspect, the State could hold property and engage in trade, Initially, the President’s Budget is assigned to the House of
thereby deriving what is called its quasi private income or 5. Income from
Representatives’ Appropriations Committee on First Reading.
revenues, and which "peculiarly belonged to the sovereign." Government
The Appropriations Committee and its various Sub-Committees
Under the second aspect, the State could collect by imposing Business Operations
schedule and conduct budget hearings to examine the PAPs of
charges on the revenues of its subjects in the form of taxes.79 6. Sales Revenue the departments and agencies. Thereafter, the House of
7. Rent Income Representatives drafts the General Appropriations Bill (GAB).87
In the Philippines, public revenues are generally derived from
8. Insurance Income
the following sources, to wit: (1) tax revenues(i.e., compulsory The GABis sponsored, presented and defended by the House of
contributions to finance government activities); 80 (2) capital 9. Dividend Income Representatives’ Appropriations Committee and Sub-
revenues(i.e., proceeds from sales of fixed capital assets or 10. Interest Income Committees in plenary session. As with other laws, the GAB is
scrap thereof and public domain, and gains on such sales like approved on Third Reading before the House of
11. Sale of Confiscated
sale of public lands, buildings and other structures, equipment, Representatives’ version is transmitted to the Senate.88
Goods and
and other properties recorded as fixed assets); 81 (3) grants(i.e.,
Properties
voluntary contributions and aids given to the Government for its After transmission, the Senate conducts its own committee
operation on specific purposes in the form of money and/or 12. Foreign Exchange hearings on the GAB. To expedite proceedings, the Senate may
materials, and do not require any monetary commitment on the (FOREX) conduct its committee hearings simultaneously with the House
part of the recipient);82 (4) extraordinary income(i.e., repayment Gains of Representatives’ deliberations. The Senate’s Finance
of loans and advances made by government corporations and 13. Miscellaneous Committee and its Sub-Committees may submit the proposed
local governments and the receipts and shares in income of the Operating and amendments to the GAB to the plenary of the Senate only after
Banko Sentral ng Pilipinas, and other receipts);83 and (5) public Service Income the House of Representatives has formally transmitted its
borrowings(i.e., proceeds of repayable obligations generally version to the Senate. The Senate version of the GAB is likewise
with interest from domestic and foreign creditors of the 14. Fines and Penalties-
approved on Third Reading.89
Government in general, including the National Government and Government
its political subdivisions).84 Services and Business
The House of Representatives and the Senate then constitute a
Operations
panel each to sit in the Bicameral Conference Committee for the
More specifically, public revenues are classified as follows:85 15. Income from Grants purpose of discussing and harmonizing the conflicting provisions
and of their versions of the GAB. The "harmonized" version of the
Donations GAB is next presented to the President for approval.90 The
General Income Specific Income
President reviews the GAB, and prepares the Veto Message
1. Subsidy Income from 1. Income Taxes
where budget items are subjected to direct veto,91 or are
identified for conditional implementation.
If, by the end of any fiscal year, the Congress shall have failed to
pass the GAB for the ensuing fiscal year, the GAA for the
preceding fiscal year shall be deemed re-enacted and shall
remain in force and effect until the GAB is passed by the
Congress.92
c.3. Budget Execution93
With the GAA now in full force and effect, the next step is the
implementation of the budget. The Budget Execution Phase is
primarily the function of the DBM, which is tasked to perform
the following procedures, namely: (1) to issue the programs and
guidelines for the release of funds; (2) to prepare an Allotment
and Cash Release Program; (3) to release allotments; and (4) to
issue disbursement authorities.
The implementation of the GAA is directed by the guidelines
issued by the DBM. Prior to this, the various departments and
agencies are required to submit Budget Execution
Documents(BED) to outline their plans and performance targets
by laying down the physical and financial plan, the monthly cash
program, the estimate of monthly income, and the list of
obligations that are not yet due and demandable.
Thereafter, the DBM prepares an Allotment Release Program
(ARP)and a Cash Release Program (CRP).The ARP sets a limit for
allotments issued in general and to a specific agency. The CRP
fixes the monthly, quarterly and annual disbursement levels.
Allotments, which authorize an agency to enter into obligations,
are issued by the DBM. Allotments are lesser in scope than
appropriations, in that the latter embrace the general legislative
authority to spend. Allotments may be released in two forms –
through a comprehensive Agency Budget Matrix (ABM),94 or,
individually, by SARO.95
Armed with either the ABM or the SARO, agencies become
authorized to incur obligations96 on behalf of the Government in
order to implement their PAPs. Obligations may be incurred in
various ways, like hiring of personnel, entering into contracts for
the supply of goods and services, and using utilities.
In order to settle the obligations incurred by the agencies, the
DBM issues a disbursement authority so that cash may be
allocated in payment of the obligations. A cash or disbursement
authority that is periodically issued is referred to as a Notice of
Cash Allocation (NCA),97 which issuance is based upon an
agency’s submission of its Monthly Cash Program and other
required documents. The NCA specifies the maximum amount
of cash that can be withdrawn from a government servicing
bank for the period indicated. Apart from the NCA, the DBM
may issue a Non-Cash Availment Authority(NCAA) to authorize
non-cash disbursements, or a Cash Disbursement Ceiling(CDC)
for departments with overseas operations to allow the use of
income collected by their foreign posts for their operating
requirements.
Actual disbursement or spending of government funds
terminates the Budget Execution Phase and is usually
accomplished through the Modified Disbursement Scheme
under which disbursements chargeable against the National
Treasury are coursed through the government servicing banks.
c.4. Accountability98
Accountability is a significant phase of the budget cycle because
it ensures that the government funds have been effectively and
efficiently utilized to achieve the State’s socio-economic goals. It
also allows the DBM to assess the performance of agencies
during the fiscal year for the purpose of implementing reforms
and establishing new policies.
An agency’s accountability may be examined and evaluated
through (1) performance targets and outcomes; (2) budget
accountability reports; (3) review of agency performance; and
(4) audit conducted by the Commission on Audit(COA).
2.
Nature of the DAP as a fiscal plan
a. DAP was a program designed to
promote economic growth
Policy is always a part of every budget and fiscal decision of any
Administration.99 The national budget the Executive prepares
and presents to Congress represents the Administration’s
"blueprint for public policy" and reflects the Government’s goals
and strategies.100 As such, the national budget becomes a
tangible representation of the programs of the Government in
monetary terms, specifying therein the PAPs and services for
which specific amounts of public funds are proposed and
allocated.101 Embodied in every national budget is government
spending.102
When he assumed office in the middle of 2010, President
Aquino made efficiency and transparency in government
spending a significant focus of his Administration. Yet, although
such focus resulted in an improved fiscal deficit of 0.5% in the
gross domestic product (GDP) from January to July of 2011, it
also unfortunately decelerated government project
implementation and payment schedules.103 The World Bank
observed that the Philippines’ economic growth could be
reduced, and potential growth could be weakened should the
Government continue with its underspending and fail to
address the large deficiencies in infrastructure.104 The economic
situation prevailing in the middle of 2011 thus paved the way
for the development and implementation of the DAP as a
stimulus package intended to fast-track public spending and to
push economic growth by investing on high-impact budgetary
PAPs to be funded from the "savings" generated during the year
as well as from unprogrammed funds.105 In that respect, the
DAP was the product of "plain executive policy-making" to
stimulate the economy by way of accelerated spending.106 The
Administration would thereby accelerate government spending
by: (1) streamlining the implementation process through the
clustering of infrastructure projects of the Department of Public
Works and Highways (DPWH) and the Department of Education funding sources for ₱72.11 billion and of the proposed priority
immediate
(DepEd),and (2) front loading PPP-related projects107 due for projects to be funded,115 reads:
funding
implementation in the following year.108
MEMORANDUM FOR THE PRESIDENT FY 2011 482 Unreleased
Did the stimulus package work? Unreleased appropriations
xxxx Appropriations (slow
109
The March 2012 report of the World Bank, released after the moving projects
initial implementation of the DAP, revealed that the DAP was SUBJECT: FY 2011 PROPOSED DISBURSEMENT ACCELERATION and
partially successful. The disbursements under the DAP PROGRAM (PROJECTS AND SOURCES OF FUNDS) programs for
contributed 1.3 percentage points to GDP growth by the fourth discontinuance)
quarter of 2011.110 The continued implementation of the DAP DATE: OCTOBER 12, 2011
strengthened growth by 11.8% year on year while infrastructure FY 2010 12,336 Supported by the Approve and
spending rebounded from a 29% contraction to a 34% growth as Mr. President, this is to formally confirm your approval of the Unprogrammed GFI authorize its
of September 2013.111 Disbursement Acceleration Program totaling ₱72.11 billion. We Fund Dividends use
are already working with all the agencies concerned for the for the 2011
The DAP thus proved to be a demonstration that expenditure immediate execution of the projects therein. Disbursement
was a policy instrument that the Government could use to Acceleration
direct the economies towards growth and development.112 The A. Fund Sources for the Acceleration Program Program
Government, by spending on public infrastructure, would signify
its commitment of ensuring profitability for prospective FY 2010 21,544 Unreleased With prior
investors.113 The PAPs funded under the DAP were chosen for Amount Carryover appropriations approval from
this reason based on their: (1) multiplier impact on the (In Action Appropriation (slow the President
Fund Sources Description
economy and infrastructure development; (2) beneficial effect million Requested moving projects in
on the poor; and (3) translation into disbursements.114 Php) and November
programs for 2010
FY 2011 30,000 Unreleased Declare as
b. History of the implementation of discontinuance) to declare as
Unreleased Personnel savings and
the DAP, and sources of funds and savings and
Personal Services (PS) approve/
under the DAP savings from with
Services (PS) appropriations authorize its
Zero-based authority to
Appropriations which use
How the Administration’s economic managers conceptualized Budgeting use
will lapse at the for the 2011
and developed the DAP, and finally presented it to the President Initiative for priority
end of Disbursement
remains unknown because the relevant documents appear to projects
FY 2011 but may Acceleration
be scarce.
be Program FY 2011 Budget 7,748 FY 2011 Agency For
pooled as savings items for Budget items information
The earliest available document relating to the genesis of the
and realignment that can
DAP was the memorandum of October 12,2011 from Sec. Abad
realigned for be realigned
seeking the approval of the President to implement the
priority within the
proposed DAP. The memorandum, which contained a list of the
programs that agency to fund
require
 new fast 5. PIDS: purchase of land to relocate the PIDS 100 13. DOF-BIR: NPSTAR
disbursing office and building construction centralization of data
projects processing and others (To be
6. HGC: Equity infusion for credit insurance 400 synchronized with GFMIS
DPWH-3.981
and mortgage guaranty operations of HGC activities) 758 758
Billion
DA – 2.497 Billion 7. PHIC: Obligations incurred (premium 1,496 14. COA: IT infrastructure
DOT – 1.000 subsidy for indigent families) in January-June program and hiring of
Billion 2010, booked for payment in Jul[y] – Dec additional litigational experts 144 144
DepEd – 270 2010. The delay in payment is due to the
Million delay in the certification of the LGU 15. DND-PAF: On Base Housing
counterpart. Without it, the NG is obliged to Facilities and Communication
TOTAL 72.110 pay the full amount. Equipment 30 30

8. Philpost: Purchase of foreclosed property. 644 16. DA: 2,959 2,223

B. Projects in the Disbursement Acceleration Program
Payment of Mandatory Obligations, (GSIS, a. Irrigation, FMRs and
PhilHealth, ECC), Franking Privilege Integrated Community Based Multi-
(Descriptions of projects attached as Annex A) Species
9. BSP: First equity infusion out of Php 40B 10,000 Hatchery and Aquasilvi 1,629 1,629
GOCCs and GFIs capitalization under the BSP Law Farming
10. PCMC: Capital and Equipment Renovation 280 b. Mindanao Rural 919 183
Agency/Project Allotment Development Project
(SARO and NCA Release) (in Million Php) 11. LCOP: 105
a. Pediatric Pulmonary Program c. NIA Agno River Integrated
1. LRTA: Rehabilitation of LRT 1 and 2 1,868 35 Irrigation Project 411 411
b. Bio-regenerative Technology Program
2. NHA: 11,050 (Stem-Cell Research – subject to legal 70 17. DAR: 1,293 1,293
review and presentation) a. Agrarian Reform
a. Resettlement of North Triangle residents to 450
12. TIDCORP: NG Equity infusion 570 Communities Project 2 1,293 132
Camarin A7 b. Landowners Compensation 5,432
b. Housing for BFP/BJMP 500
10,000 TOTAL 26,945
c. On-site development for families living 18. DBM: Conduct of National
along dangerous Survey of
d. Relocation sites for informal settlers 100 Farmers/Fisherfolks/Ips 625 625
NGAs/LGUs
along Iloilo River and its tributaries
19. DOJ: Operating requirements
Agency/Project Allotment
3. PHIL. HEART CENTER: Upgrading of 357 of 50 investigation agents and
(SARO) Cash
ageing physical plant and medical equipment 15 state attorneys 11 11
(In Requirement
4. CREDIT INFO CORP: Establishment of 75 Million (NCA) 20. DOT: Preservation of the Cine
centralized credit information system Php) Corregidor Complex 25 25
21. OPAPP: Activities for Peace 29. DILG: Performance Challenge [ ] DISAPPROVED
Process (PAMANA- Project Fund (People Empowered
details: budget breakdown, Community Driven (Sgd.) H.E. BENIGNO S. AQUINO, III
implementation plan, and Development with DSWD and
conditions on fund release NAPC) 250 50 OCT 12, 2011
attached as Annex B) 1,819 1,819
30. ARMM: Comprehensive Peace The memorandum of October 12, 2011 was followed by another
22. DOST 425 425 and Development Intervention 8,592 8,592 memorandum for the President dated December 12,
a. Establishment of National 2011116 requesting omnibus authority to consolidate the savings
Meterological and Climate 31. DOTC-MRT: Purchase of and unutilized balances for fiscal year 2011. Pertinent portions
Center 275 275 additional MRT cars 4,500 - of the memorandum of December 12, 2011 read:
b. Enhancement of Doppler 32. LGU Support Fund 6,500 6,500
Radar Network for National MEMORANDUM FOR THE PRESIDENT
Weather Watch, Accurate 33. Various Other Local Projects 6,500 6,500
Forecasting and Flood Early xxxx
Warning 190 190 34. Development Assistance to the
Province of Quezon 750 750
SUBJECT: Omnibus Authority to Consolidate Savings/Unutilized
23. DOF-BOC: To settle the
TOTAL 45,165 44,000 Balances and its Realignment
principal obligations with
PDIC consistent with the
DATE: December 12, 2011
agreement with the CISS and C. Summary
SGS 2,800 2,800
This is to respectfully request for the grant of Omnibus
24. OEO-FDCP: Establishment of Fund Sources Authority to consolidate savings/unutilized balances in FY 2011
the National Film Archive and Identified for Allotments Cash corresponding to completed or discontinued projects which
local cinematheques, and other Approval for Release Requirements for may be pooled to fund additional projects or expenditures.
local activities 20 20 (In Million Release in FY
Php) 2011 In addition, Mr. President, this measure will allow us to
25. DPWH: Various infrastructure undertake projects even if their implementation carries over to
projects 5,500 5,500 Total 72,110 72,110 70,895
2012 without necessarily impacting on our budget deficit cap
26. DepEd/ERDT/DOST: Thin GOCCs 26,895 26,895 next year.
Client Cloud Computing
NGAs/LGUs 45,165 44,000 BACKGROUND
Project 270 270

27. DOH: Hiring of nurses and
midwives
28. TESDA: Training Program in
partnership with BPO industry
and other sectors
For His Excellency’s Consideration 1.0 The DBM, during the course of performance
294 294 reviews conducted on the agencies’ operations,
(Sgd.) FLORENCIO B. ABAD particularly on the implementation of their
projects/activities, including expenses incurred
in undertaking the same, have identified savings
1,100 1,100 [/] APPROVED
out of the 2011 General Appropriations Act.
 Said savings correspond to completed or
discontinued projects under certain
departments/agencies which may be pooled,
for the following:
1.1 to provide for new activities which
have not been anticipated during
preparation of the budget;
1.2 to augment additional requirements
of on-going priority projects; and
1.3 to provide for deficiencies under the
Special Purpose Funds, e.g., PDAF,
Calamity Fund, Contingent Fund
1.4 to cover for the modifications of the
original allotment class allocation as a
result of on-going priority projects and
implementation of new activities
2.0 x x x x
2.1 x x x
2.2 x x x
ON THE UTILIZATION OF POOLED SAVINGS
3.0 It may be recalled that the President
approved our request for omnibus authority to
pool savings/unutilized balances in FY 2010 last
November 25, 2010.
4.0 It is understood that in the utilization of the
pooled savings, the DBM shall secure the
corresponding approval/confirmation of the
President. Furthermore, it is assured that the
proposed realignments shall be within the
authorized Expenditure level.
5.0 Relative thereto, we have identified some
expenditure items that may be sourced from
the said pooled appropriations in FY 2010 that
will expire on December 31, 2011 and
appropriations in FY 2011 that may be declared
as savings to fund additional expenditures.
5.1 The 2010 Continuing Appropriations
(pooled savings) is proposed to be
spent for the projects that we have
identified to be immediate actual
disbursements considering that this
same fund source will expire on
December 31, 2011.
5.2 With respect to the proposed
expenditure items to be funded from
the FY 2011 Unreleased Appropriations,
most of these are the same projects for
which the DBM is directed by the Office
of the President, thru the Executive
Secretary, to source funds.
6.0 Among others, the following are such
proposed additional projects that have been
chosen given their multiplier impact on
economy and infrastructure development, their
beneficial effect on the poor, and their
translation into disbursements. Please note that
we have classified the list of proposed projects
as follows:
7.0 x x x
FOR THE PRESIDENT’S APPROVAL
8.0 Foregoing considered, may we respectfully
request for the President’s approval for the
following:
8.1 Grant of omnibus authority to
consolidate FY 2011 savings/unutilized
balances and its realignment; and
8.2 The proposed additional projects
identified for funding.
For His Excellency’s consideration and approval.
(Sgd.)
[/] APPROVED
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
DEC 21, 2011
Substantially identical requests for authority to pool savings and
to fund proposed projects were contained in various other
memoranda from Sec. Abad dated June 25, 2012,117 September
4, 2012,118 December 19, 2012,119 May 20, 2013,120 and
September 25, 2013.121 The President apparently approved all
the requests, withholding approval only of the proposed
projects contained in the June 25, 2012 memorandum, as borne
out by his marginal note therein to the effect that the proposed
projects should still be "subject to further discussions."122
In order to implement the June25, 2012 memorandum, Sec.
Abad issued NBC No. 541 (Adoption of Operational Efficiency
Measure – Withdrawal of Agencies’ Unobligated Allotments as
of June 30, 2012),123 reproduced herein as follows:
NATIONAL BUDGET CIRCULAR No. 541
July 18, 2012
TO: All Heads of Departments/Agencies/State Universities and
Colleges and other Offices of the National Government, Budget
and Planning Officers; Heads of Accounting Units and All Others
Concerned
send call-up letters, requesting them to identify slow-moving charged against FY 2011 Continuing
programs/projects and the factors/issues affecting their Appropriation (R.A. No.10147) and FY 2012
performance (both pertaining to internal systems and those Current Appropriation (R.A. No. 10155),
which are outside the agencies’ spheres of control). Also, they pertaining to:
are asked to formulate strategies and improvement plans for
the rest of 2012. 3.1.1 Capital Outlays (CO);

SUBJECT : Adoption of Operational Efficiency Measure –
Withdrawal of Agencies’ Unobligated Allotments as of June 30,
2012
1.0 Rationale
The DBM, as mandated by Executive Order (EO) No. 292
(Administrative Code of 1987), periodically reviews and
evaluates the departments/agencies’ efficiency and
effectiveness in utilizing budgeted funds for the delivery of
services and production of goods, consistent with the
government priorities.
In the event that a measure is necessary to further improve the
operational efficiency of the government, the President is
authorized to suspend or stop further use of funds allotted for
any agency or expenditure authorized in the General
Appropriations Act. Withdrawal and pooling of unutilized
allotment releases can be effected by DBM based on authority
of the President, as mandated under Sections 38 and 39,
Chapter 5, Book VI of EO 292.
For the first five months of 2012, the National Government has
not met its spending targets. In order to accelerate spending
and sustain the fiscal targets during the year, expenditure
measures have to be implemented to optimize the utilization of
available resources.
Departments/agencies have registered low spending levels, in
terms of obligations and disbursements per initial review of
their 2012 performance. To enhance agencies’ performance,
the DBM conducts continuous consultation meetings and/or
Notwithstanding these initiatives, some departments/agencies
have continued to post low obligation levels as of end of first
semester, thus resulting to substantial unobligated allotments.
In line with this, the President, per directive dated June 27,
2012 authorized the withdrawal of unobligated allotments of
agencies with low levels of obligations as of June 30, 2012, both
for continuing and current allotments. This measure will allow
the maximum utilization of available allotments to fund and
undertake other priority expenditures of the national
government.
2.0 Purpose
2.1 To provide the conditions and parameters
on the withdrawal of unobligated allotments of
agencies as of June 30, 2012 to fund priority
and/or fast-moving programs/projects of the
national government;
2.2 To prescribe the reports and documents to
be used as bases on the withdrawal of said
unobligated allotments; and
2.3 To provide guidelines in the utilization or
reallocation of the withdrawn allotments.
3.0 Coverage
3.1 These guidelines shall cover the withdrawal
of unobligated allotments as of June 30, 2012 of
all national government agencies (NGAs)
3.1.2 Maintenance and Other Operating
Expenses (MOOE) related to the
implementation of programs and
projects, as well as capitalized MOOE;
and
3.1.3 Personal Services corresponding
to unutilized pension benefits declared
as savings by the agencies concerned
based on their updated/validated list of
pensioners.
3.2 The withdrawal of unobligated allotments
may cover the identified programs, projects and
activities of the departments/agencies reflected
in the DBM list shown as Annex A or specific
programs and projects as may be identified by
the agencies.
4.0 Exemption
These guidelines shall not apply to the following:
4.1 NGAs
4.1.1 Constitutional Offices/Fiscal
Autonomy Group, granted fiscal
autonomy under the Philippine
Constitution; and
4.1.2 State Universities and Colleges,
adopting the Normative Funding
 allocation scheme i.e., distribution of a
predetermined budget ceiling.
4.2 Fund Sources
4.2.1 Personal Services other than
pension benefits;
4.2.2 MOOE items earmarked for
specific purposes or subject to
realignment conditions per General
Provisions of the GAA:
• Confidential and Intelligence
Fund;
• Savings from Traveling,
Communication, Transportation
and Delivery, Repair and
Maintenance, Supplies and
Materials and Utility which shall
be used for the grant of
Collective Negotiation
Agreement incentive benefit;
• Savings from mandatory
expenditures which can be
realigned only in the last
quarter after taking into
consideration the agency’s full
year requirements, i.e.,
Petroleum, Oil and Lubricants,
Water, Illumination, Power
Services, Telephone, other
Communication Services and
Rent.
4.2.3 Foreign-Assisted Projects (loan
proceeds and peso counterpart);
4.2.4 Special Purpose Funds such as: E-
Government Fund, International
Commitments Fund, PAMANA, Priority
Development Assistance Fund, Calamity
Fund, Budgetary Support to GOCCs and
Allocation to LGUs, among others;
4.2.5 Quick Response Funds; and
4.2.6 Automatic Appropriations i.e.,
Retirement Life Insurance Premium and
Special Accounts in the General Fund.
5.0 Guidelines
5.1 National government agencies shall
continue to undertake procurement activities
notwithstanding the implementation of the
policy of withdrawal of unobligated allotments
until the end of the third quarter, FY 2012. Even
without the allotments, the agency shall
proceed in undertaking the procurement
processes (i.e., procurement planning up to the
conduct of bidding but short of awarding of
contract) pursuant to GPPB Circular Nos. 02-
2008 and 01-2009 and DBM Circular Letter No.
2010-9.
5.2 For the purpose of determining the amount
of unobligated allotments that shall be
withdrawn, all departments/agencies/operating
units (OUs) shall submit to DBM not later than
July 30, 2012, the following budget
accountability reports as of June 30, 2012;
• Statement of Allotments, Obligations
and Balances (SAOB);
• Financial Report of Operations (FRO);
and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports
cited under item 5.2 of this Circular, the
agency’s latest report available shall be used by
DBM as basis for withdrawal of allotment. The
DBM shall compute/approximate the agency’s
obligation level as of June 30 to derive its
unobligated allotments as of same period.
Example: If the March 31 SAOB or FRO reflects
actual obligations of P 800M then the June 30
obligation level shall approximate to ₱1,600 M
(i.e., ₱800 M x 2 quarters).
5.4 All released allotments in FY 2011 charged
against R.A. No. 10147 which remained
unobligated as of June 30, 2012 shall be
immediately considered for withdrawal. This
policy is based on the following considerations:
5.4.1 The departments/agencies’
approved priority programs and
projects are assumed to be
implementation-ready and doable
during the given fiscal year; and
5.4.2 The practice of having substantial
carryover appropriations may imply
that the agency has a slower-than-
programmed implementation capacity
or agency tends to implement projects
within a two-year timeframe.
5.5. Consistent with the President’s directive,
the DBM shall, based on evaluation of the
reports cited above and results of consultations
with the departments/agencies, withdraw the
unobligated allotments as of June 30, 2012
through issuance of negative Special Allotment
Release Orders (SAROs).
5.6 DBM shall prepare and submit to the
President, a report on the magnitude of
withdrawn allotments. The report shall highlight
the agencies which failed to submit the June 30
reports required under this Circular.
5.7 The withdrawn allotments may be:
5.7.1 Reissued for the original programs
and projects of the agencies/OUs
concerned, from which the allotments
were withdrawn;
5.7.2 Realigned to cover additional
funding for other existing programs and
projects of the agency/OU; or
5.7.3 Used to augment existing
programs and projects of any agency
and to fund priority programs and
projects not considered in the 2012
budget but expected to be started or
implemented during the current year.
5.8 For items 5.7.1 and 5.7.2 above,
agencies/OUs concerned may submit to DBM a
Special Budget Request (SBR), supported with
the following:
5.8.1 Physical and Financial Plan (PFP);
5.8.2 Monthly Cash Program (MCP); and
5.8.3 Proof that the project/activity has
started the procurement processes i.e.,
Proof of Posting and/or Advertisement
of the Invitation to Bid.
5.9 The deadline for submission of request/s
pertaining to these categories shall be until the
end of the third quarter i.e., September 30,
2012. After said cut-off date, the withdrawn
allotments shall be pooled and form part of the
overall savings of the national government.
5.10 Utilization of the consolidated withdrawn
allotments for other priority programs and
projects as cited under item 5.7.3 of this
Circular, shall be subject to approval of the
President. Based on the approval of the
President, DBM shall issue the SARO to cover
the approved priority expenditures subject to
submission by the agency/OU concerned of the
SBR and supported with PFP and MCP.
5.11 It is understood that all releases to be
made out of the withdrawn allotments (both
2011 and 2012 unobligated allotments) shall be
within the approved Expenditure Program level
of the national government for the current
year. The SAROs to be issued shall properly
disclose the appropriation source of the release
to determine the extent of allotment validity, as
follows:
• For charges under R.A. 10147 –
allotments shall be valid up to
December 31, 2012; and
• For charges under R.A. 10155 –
allotments shall be valid up to
December 31, 2013.
5.12 Timely compliance with the submission of
existing BARs and other reportorial
requirements is reiterated for monitoring
purposes.
6.0 Effectivity
This circular shall take effect immediately.
(Sgd.) FLORENCIO B. ABAD
Secretary
As can be seen, NBC No. 541 specified that the unobligated
allotments of all agencies and departments as of June 30, 2012
that were charged against the continuing appropriations for
fiscal year 2011 and the 2012 GAA (R.A. No. 10155) were
subject to withdrawal through the issuance of negative SAROs,
but such allotments could be either: (1) reissued for the original
PAPs of the concerned agencies from which they were
withdrawn; or (2) realigned to cover additional funding for
other existing PAPs of the concerned agencies; or (3) used to
augment existing PAPs of any agency and to fund priority PAPs
not considered in the 2012 budget but expected to be started or
implemented in 2012. Financing the other priority PAPs was
made subject to the approval of the President. Note here that
NBC No. 541 used terminologies like "realignment" and
"augmentation" in the application of the withdrawn
unobligated allotments.
Taken together, all the issuances showed how the DAP was to
be implemented and funded, that is — (1) by declaring
"savings" coming from the various departments and agencies
derived from pooling unobligated allotments and withdrawing
unreleased appropriations; (2) releasing unprogrammed funds;
and (3) applying the "savings" and unprogrammed funds to
augment existing PAPs or to support other priority PAPs.
c. DAP was not an appropriation
measure; hence, no appropriation
law was required to adopt or to
implement it
Petitioners Syjuco, Luna, Villegas and PHILCONSA state that
Congress did not enact a law to establish the DAP, or to
authorize the disbursement and release of public funds to
implement the DAP. Villegas, PHILCONSA, IBP, Araullo, and
COURAGE observe that the appropriations funded under the
DAP were not included in the 2011, 2012 and 2013 GAAs. To
petitioners IBP, Araullo, and COURAGE, the DAP, being actually
an appropriation that set aside public funds for public use,
should require an enabling law for its validity. VACC maintains
that the DAP, because it involved huge allocations that were
separate and distinct from the GAAs, circumvented and
duplicated the GAAs without congressional authorization and
control.
The petitioners contend in unison that based on how it was
developed and implemented the DAP violated the mandate of
Section 29(1), Article VI of the 1987 Constitution that "[n]o
money shall be paid out of the Treasury except in pursuance of
an appropriation made by law."
The OSG posits, however, that no law was necessary for the
adoption and implementation of the DAP because of its being
neither a fund nor an appropriation, but a program or an
administrative system of prioritizing spending; and that the
adoption of the DAP was by virtue of the authority of the
President as the Chief Executive to ensure that laws were
faithfully executed.
We agree with the OSG’s position.
The DAP was a government policy or strategy designed to
stimulate the economy through accelerated spending. In the
context of the DAP’s adoption and implementation being a
function pertaining to the Executive as the main actor during
the Budget Execution Stage under its constitutional mandate to
faithfully execute the laws, including the GAAs, Congress did not
need to legislate to adopt or to implement the DAP. Congress
could appropriate but would have nothing more to do during
the Budget Execution Stage. Indeed, appropriation was the act
by which Congress "designates a particular fund, or sets apart a
specified portion of the public revenue or of the money in the
public treasury, to be applied to some general object of
governmental expenditure, or to some individual purchase or
expense."124 As pointed out in Gonzales v. Raquiza:125 ‘"In a
strict sense, appropriation has been defined ‘as nothing more
than the legislative authorization prescribed by the Constitution
that money may be paid out of the Treasury,’ while
appropriation made by law refers to ‘the act of the legislature
setting apart or assigning to a particular use a certain sum to be
used in the payment of debt or dues from the State to its
creditors.’"126
On the other hand, the President, in keeping with his duty to
faithfully execute the laws, had sufficient discretion during the
execution of the budget to adapt the budget to changes in the
country’s economic situation.127 He could adopt a plan like the
DAP for the purpose. He could pool the savings and identify the
PAPs to be funded under the DAP. The pooling of savings
pursuant to the DAP, and the identification of the PAPs to be
funded under the DAP did not involve appropriation in the strict
sense because the money had been already set apart from the
public treasury by Congress through the GAAs. In such actions,
the Executive did not usurp the power vested in Congress under
Section 29(1), Article VI of the Constitution.
3.
Unreleased appropriations and withdrawn
unobligated allotments under the DAP
were not savings, and the use of such
appropriations contravened Section 25(5),
Article VI of the 1987 Constitution.
Notwithstanding our appreciation of the DAP as a plan or
strategy validly adopted by the Executive to ramp up spending
to accelerate economic growth, the challenges posed by the
petitioners constrain us to dissect the mechanics of the actual
execution of the DAP. The management and utilization of the
public wealth inevitably demands a most careful scrutiny of
whether the Executive’s implementation of the DAP was
consistent with the Constitution, the relevant GAAs and other
existing laws.
a. Although executive discretion
and flexibility are necessary in
the execution of the budget, any
transfer of appropriated funds
should conform to Section 25(5),
Article VI of the Constitution
We begin this dissection by reiterating that Congress cannot
anticipate all issues and needs that may come into play once the
budget reaches its execution stage. Executive discretion is
necessary at that stage to achieve a sound fiscal administration
and assure effective budget implementation. The heads of
offices, particularly the President, require flexibility in their
operations under performance budgeting to enable them to
make whatever adjustments are needed to meet established
work goals under changing conditions.128 In particular, the
power to transfer funds can give the President the flexibility to
meet unforeseen events that may otherwise impede the
efficient implementation of the PAPs set by Congress in the
GAA.
Congress has traditionally allowed much flexibility to the
President in allocating funds pursuant to the
129
GAAs, particularly when the funds are grouped to form lump
sum accounts.130 It is assumed that the agencies of the
Government enjoy more flexibility when the GAAs provide
broader appropriation items.131 This flexibility comes in the
form of policies that the Executive may adopt during the budget
execution phase. The DAP – as a strategy to improve the
country’s economic position – was one policy that the President
decided to carry out in order to fulfill his mandate under the
GAAs.
Denying to the Executive flexibility in the expenditure process
would be counterproductive. In Presidential Spending
Power,132 Prof. Louis Fisher, an American constitutional scholar
whose specialties have included budget policy, has justified
extending discretionary authority to the Executive thusly:
[T]he impulse to deny discretionary authority altogether should
be resisted. There are many number of reasons why obligations
and outlays by administrators may have to differ from
appropriations by legislators. Appropriations are made many
months, and sometimes years, in advance of expenditures.
Congress acts with imperfect knowledge in trying to legislate in
fields that are highly technical and constantly undergoing
change. New circumstances will develop to make obsolete and
mistaken the decisions reached by Congress at the
appropriation stage. It is not practicable for Congress to adjust
to each new development by passing separate supplemental
appropriation bills. Were Congress to control expenditures by
confining administrators to narrow statutory details, it would
perhaps protect its power of the purse but it would not protect
the purse itself. The realities and complexities of public policy
require executive discretion for the sound management of
public funds.
xxxx
x x x The expenditure process, by its very nature, requires
substantial discretion for administrators. They need to exercise
judgment and take responsibility for their actions, but those
actions ought to be directed toward executing congressional,
not administrative policy. Let there be discretion, but channel it
and use it to satisfy the programs and priorities established by
Congress.
In contrast, by allowing to the heads of offices some power to
transfer funds within their respective offices, the Constitution
itself ensures the fiscal autonomy of their offices, and at the
same time maintains the separation of powers among the three
main branches of the Government. The Court has recognized
this, and emphasized so in Bengzon v. Drilon,133 viz:
The Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the
independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal
autonomy and violative not only of the express mandate of the
Constitution but especially as regards the Supreme Court, of the
independence and separation of powers upon which the entire
fabric of our constitutional system is based.
In the case of the President, the power to transfer funds from
one item to another within the Executive has not been the mere
offshoot of established usage, but has emanated from law itself.
It has existed since the time of the American Governors-
General.134 Act No. 1902 (An Act authorizing the Governor-
General to direct any unexpended balances of appropriations be
returned to the general fund of the Insular Treasury and to
transfer from the general fund moneys which have been
returned thereto), passed on May 18, 1909 by the First
Philippine Legislature,135 was the first enabling law that granted
statutory authority to the President to transfer funds. The
authority was without any limitation, for the Act explicitly
empowered the Governor-General to transfer any unexpended
balance of appropriations for any bureau or office to another,
and to spend such balance as if it had originally been
appropriated for that bureau or office.
From 1916 until 1920, the appropriations laws set a cap on the
amounts of funds that could be transferred, thereby limiting the
power to transfer funds. Only 10% of the amounts appropriated
for contingent or miscellaneous expenses could be transferred
to a bureau or office, and the transferred funds were to be used
to cover deficiencies in the appropriations also for
miscellaneous expenses of said bureau or office.
In 1921, the ceiling on the amounts of funds to be transferred
from items under miscellaneous expenses to any other item of a
certain bureau or office was removed.
During the Commonwealth period, the power of the President
to transfer funds continued to be governed by the GAAs despite
the enactment of the Constitution in 1935. It is notable that the
1935 Constitution did not include a provision on the power to
transfer funds. At any rate, a shift in the extent of the
President’s power to transfer funds was again experienced
during this era, with the President being given more flexibility in
implementing the budget. The GAAs provided that the power to
transfer all or portions of the appropriations in the Executive
Department could be made in the "interest of the public, as the
President may determine."136
In its time, the 1971 Constitutional Convention wanted to curtail
the President’s seemingly unbounded discretion in transferring
funds.137 Its Committee on the Budget and Appropriation
proposed to prohibit the transfer of funds among the separate
branches of the Government and the independent
constitutional bodies, but to allow instead their respective
heads to augment items of appropriations from savings in their
respective budgets under certain limitations.138 The clear
intention of the Convention was to further restrict, not to
liberalize, the power to transfer appropriations.139 Thus, the
Committee on the Budget and Appropriation initially considered
setting stringent limitations on the power to augment, and
suggested that the augmentation of an item of appropriation
could be made "by not more than ten percent if the original
item of appropriation to be augmented does not exceed one
million pesos, or by not more than five percent if the original
item of appropriation to be augmented exceeds one million
pesos."140 But two members of the Committee objected to the
₱1,000,000.00 threshold, saying that the amount was arbitrary
and might not be reasonable in the future. The Committee
agreed to eliminate the ₱1,000,000.00 threshold, and settled on
the ten percent limitation.141
In the end, the ten percent limitation was discarded during the
plenary of the Convention, which adopted the following final
version under Section 16, Article VIII of the 1973 Constitution,
to wit:
(5) No law shall be passed authorizing any transfer of
appropriations; however, the President, the Prime Minister, the
Speaker, the Chief Justice of the Supreme Court, and the heads
of Constitutional Commissions may by law be authorized to
augment any item in the general appropriations law for their
respective offices from savings in other items of their respective
appropriations.
The 1973 Constitution explicitly and categorically prohibited the
transfer of funds from one item to another, unless Congress
enacted a law authorizing the President, the Prime Minister, the
Speaker, the Chief Justice of the Supreme Court, and the heads
of the Constitutional omissions to transfer funds for the
purpose of augmenting any item from savings in another item in
the GAA of their respective offices. The leeway was limited to
augmentation only, and was further constricted by the
condition that the funds to be transferred should come from
savings from another item in the appropriation of the office.142
On July 30, 1977, President Marcos issued PD No. 1177,
providing in its Section 44 that:
Section 44. Authority to Approve Fund Transfers. The President
shall have the authority to transfer any fund appropriated for
the different departments, bureaus, offices and agencies of the
Executive Department which are included in the General
Appropriations Act, to any program, project, or activity of any
department, bureau or office included in the General
Appropriations Act or approved after its enactment.
The President shall, likewise, have the authority to augment any
appropriation of the Executive Department in the General
Appropriations Act, from savings in the appropriations of
another department, bureau, office or agency within the
Executive Branch, pursuant to the provisions of Article VIII,
Section 16 (5) of the Constitution.
In Demetria v. Alba, however, the Court struck down the first
paragraph of Section 44 for contravening Section 16(5)of the
1973 Constitution, ruling:
Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends
the privilege granted under said Section 16. It empowers the
President to indiscriminately transfer funds from one
department, bureau, office or agency of the Executive
Department to any program, project or activity of any
department, bureau or office included in the General
Appropriations Act or approved after its enactment, without
regard as to whether or not the funds to be transferred are
actually savings in the item from which the same are to be
taken, or whether or not the transfer is for the purpose of
augmenting the item to which said transfer is to be made. It
does not only completely disregard the standards set in the
fundamental law, thereby amounting to an undue delegation of
legislative powers, but likewise goes beyond the tenor thereof.
Indeed, such constitutional infirmities render the provision in
question null and void.143
It is significant that Demetria was promulgated 25 days after the
ratification by the people of the 1987 Constitution, whose
Section 25(5) of Article VI is identical to Section 16(5), Article
VIII of the 1973 Constitution, to wit:
Section 25. x x x
xxxx
5) No law shall be passed authorizing any transfer of
appropriations; however, the President, the President of the
Senate, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, and the heads of Constitutional
Commissions may, by law, be authorized to augment any item
in the general appropriations law for their respective offices
from savings in other items of their respective appropriations.
xxxx
The foregoing history makes it evident that the Constitutional
Commission included Section 25(5), supra, to keep a tight rein
on the exercise of the power to transfer funds appropriated by
Congress by the President and the other high officials of the
Government named therein. The Court stated in Nazareth v.
Villar:144
In the funding of current activities, projects, and programs, the
general rule should still be that the budgetary amount
contained in the appropriations bill is the extent Congress will
determine as sufficient for the budgetary allocation for the
proponent agency. The only exception is found in Section 25 (5),
Article VI of the Constitution, by which the President, the
President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and
the heads of Constitutional Commissions are authorized to
transfer appropriations to augmentany item in the GAA for their
respective offices from the savings in other items of their
respective appropriations. The plain language of the
constitutional restriction leaves no room for the petitioner’s
posture, which we should now dispose of as untenable.
It bears emphasizing that the exception in favor of the high
officials named in Section 25(5), Article VI of the Constitution
limiting the authority to transfer savings only to augment
another item in the GAA is strictly but reasonably construed as
exclusive. As the Court has expounded in Lokin, Jr. v.
Commission on Elections:
When the statute itself enumerates the exceptions to the
application of the general rule, the exceptions are strictly but
reasonably construed. The exceptions extend only as far as their
language fairly warrants, and all doubts should be resolved in
favor of the general provision rather than the exceptions.
Where the general rule is established by a statute with
exceptions, none but the enacting authority can curtail the
former. Not even the courts may add to the latter by
implication, and it is a rule that an express exception excludes
all others, although it is always proper in determining the
applicability of the rule to inquire whether, in a particular case,
it accords with reason and justice.
The appropriate and natural office of the exception is to exempt
something from the scope of the general words of a statute,
which is otherwise within the scope and meaning of such
general words. Consequently, the existence of an exception in a
statute clarifies the intent that the statute shall apply to all
cases not excepted. Exceptions are subject to the rule of strict
construction; hence, any doubt will be resolved in favor of the
general provision and against the exception. Indeed, the liberal
construction of a statute will seem to require in many
circumstances that the exception, by which the operation of the
statute is limited or abridged, should receive a restricted
construction.
Accordingly, we should interpret Section 25(5), supra, in the
context of a limitation on the President’s discretion over the
appropriations during the Budget Execution Phase.
b. Requisites for the valid transfer of
appropriated funds under Section
25(5), Article VI of the 1987
Constitution
The transfer of appropriated funds, to be valid under Section
25(5), supra, must be made upon a concurrence of the following
requisites, namely:
(1) There is a law authorizing the President, the
President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court,
and the heads of the Constitutional Commissions to
transfer funds within their respective offices;
(2) The funds to be transferred are savings generated
from the appropriations for their respective offices; and
(3) The purpose of the transfer is to augment an item in
the general appropriations law for their respective
offices.
b.1. First Requisite–GAAs of 2011 and
2012 lacked valid provisions to
authorize transfers of funds under
the DAP; hence, transfers under the
DAP were unconstitutional
Section 25(5), supra, not being a self-executing provision of the
Constitution, must have an implementing law for it to be
operative. That law, generally, is the GAA of a given fiscal year.
To comply with the first requisite, the GAAs should expressly
authorize the transfer of funds.
Did the GAAs expressly authorize the transfer of funds?
In the 2011 GAA, the provision that gave the President and the
other high officials the authority to transfer funds was Section
59, as follows:
Section 59. Use of Savings. The President of the Philippines, the
Senate President, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, the Heads of
Constitutional Commissions enjoying fiscal autonomy, and the
Ombudsman are hereby authorized to augment any item in this
Act from savings in other items of their respective
appropriations.
In the 2012 GAA, the empowering provision was Section 53, to
wit:
Section 53. Use of Savings. The President of the Philippines, the
Senate President, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, the Heads of
Constitutional Commissions enjoying fiscal autonomy, and the
Ombudsman are hereby authorized to augment any item in this
Act from savings in other items of their respective
appropriations.
In fact, the foregoing provisions of the 2011 and 2012 GAAs
were cited by the DBM as justification for the use of savings
under the DAP.145
A reading shows, however, that the aforequoted provisions of
the GAAs of 2011 and 2012 were textually unfaithful to the
Constitution for not carrying the phrase "for their respective
offices" contained in Section 25(5), supra. The impact of the
phrase "for their respective offices" was to authorize only
transfers of funds within their offices (i.e., in the case of the
President, the transfer was to an item of appropriation within
the Executive). The provisions carried a different phrase ("to
augment any item in this Act"), and the effect was that the 2011
and 2012 GAAs thereby literally allowed the transfer of funds
from savings to augment any item in the GAAs even if the item
belonged to an office outside the Executive. To that extent did
the 2011 and 2012 GAAs contravene the Constitution. At the
very least, the aforequoted provisions cannot be used to claim
authority to transfer appropriations from the Executive to
another branch, or to a constitutional commission.
Apparently realizing the problem, Congress inserted the
omitted phrase in the counterpart provision in the 2013 GAA, to
wit:
Section 52. Use of Savings. The President of the Philippines, the
Senate President, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, the Heads of
Constitutional Commissions enjoying fiscal autonomy, and the
Ombudsman are hereby authorized to use savings in their
respective appropriations to augment actual deficiencies
incurred for the current year in any item of their respective
appropriations.
Even had a valid law authorizing the transfer of funds pursuant
to Section 25(5), supra, existed, there still remained two other
requisites to be met, namely: that the source of funds to be
transferred were savings from appropriations within the
respective offices; and that the transfer must be for the purpose
of augmenting an item of appropriation within the respective
offices.
b.2. Second Requisite – There were
no savings from which funds
could be sourced for the DAP
Were the funds used in the DAP actually savings?
The petitioners claim that the funds used in the DAP — the
unreleased appropriations and withdrawn unobligated
allotments — were not actual savings within the context of
Section 25(5), supra, and the relevant provisions of the GAAs.
Belgica argues that "savings" should be understood to refer to
the excess money after the items that needed to be funded
have been funded, or those that needed to be paid have been
paid pursuant to the budget.146 The petitioners posit that there
could be savings only when the PAPs for which the funds had
been appropriated were actually implemented and completed,
or finally discontinued or abandoned. They insist that savings
could not be realized with certainty in the middle of the fiscal
year; and that the funds for "slow-moving" PAPs could not be
considered as savings because such PAPs had not actually been
abandoned or discontinued yet.147 They stress that NBC No.
541, by allowing the withdrawn funds to be reissued to the
"original program or project from which it was withdrawn,"
conceded that the PAPs from which the supposed savings were
taken had not been completed, abandoned or discontinued.148
The OSG represents that "savings" were "appropriations
balances," being the difference between the appropriation
authorized by Congress and the actual amount allotted for the
appropriation; that the definition of "savings" in the GAAs set
only the parameters for determining when savings occurred;
that it was still the President (as well as the other officers
vested by the Constitution with the authority to augment) who
ultimately determined when savings actually existed because
savings could be determined only during the stage of budget
execution; that the President must be given a wide discretion to
accomplish his tasks; and that the withdrawn unobligated
allotments were savings inasmuch as they were clearly
"portions or balances of any programmed appropriation…free
from any obligation or encumbrances which are (i) still available
after the completion or final discontinuance or abandonment of
the work, activity or purpose for which the appropriation is
authorized…"
We partially find for the petitioners.
In ascertaining the meaning of savings, certain principles should
be borne in mind. The first principle is that Congress wields the
power of the purse. Congress decides how the budget will be
spent; what PAPs to fund; and the amounts of money to be
spent for each PAP. The second principle is that the Executive,
as the department of the Government tasked to enforce the
laws, is expected to faithfully execute the GAA and to spend the
budget in accordance with the provisions of the GAA.149 The
Executive is expected to faithfully implement the PAPs for which
Congress allocated funds, and to limit the expenditures within
the allocations, unless exigencies result to deficiencies for which
augmentation is authorized, subject to the conditions provided
by law. The third principle is that in making the President’s
power to augment operative under the GAA, Congress
recognizes the need for flexibility in budget execution. In so
doing, Congress diminishes its own power of the purse, for it
delegates a fraction of its power to the Executive. But Congress
does not thereby allow the Executive to override its authority
over the purse as to let the Executive exceed its delegated
authority. And the fourth principle is that savings should be
actual. "Actual" denotes something that is real or substantial, or
something that exists presently in fact, as opposed to
something that is merely theoretical, possible, potential or
hypothetical.150
The foregoing principles caution us to construe savings strictly
against expanding the scope of the power to augment. It is then
indubitable that the power to augment was to be used only
when the purpose for which the funds had been allocated were
already satisfied, or the need for such funds had ceased to exist,
for only then could savings be properly realized. This
interpretation prevents the Executive from unduly transgressing
Congress’ power of the purse.
The definition of "savings" in the GAAs, particularly for 2011,
2012 and 2013, reflected this interpretation and made it
operational, viz:
Savings refer to portions or balances of any programmed
appropriation in this Act free from any obligation or
encumbrance which are: (i) still available after the completion
or final discontinuance or abandonment of the work, activity or
purpose for which the appropriation is authorized; (ii) from
appropriations balances arising from unpaid compensation and
related costs pertaining to vacant positions and leaves of
absence without pay; and (iii) from appropriations balances
realized from the implementation of measures resulting in
improved systems and efficiencies and thus enabled agencies to
meet and deliver the required or planned targets, programs and
services approved in this Act at a lesser cost.
The three instances listed in the GAAs’ aforequoted definition
were a sure indication that savings could be generated only
upon the purpose of the appropriation being fulfilled, or upon
the need for the appropriation being no longer existent.
The phrase "free from any obligation or encumbrance" in the
definition of savings in the GAAs conveyed the notion that the
appropriation was at that stage when the appropriation was
already obligated and the appropriation was already released.
This interpretation was reinforced by the enumeration of the
three instances for savings to arise, which showed that the
appropriation referred to had reached the agency level. It could
not be otherwise, considering that only when the appropriation
had reached the agency level could it be determined whether
(a) the PAP for which the appropriation had been authorized
was completed, finally discontinued, or abandoned; or (b) there
were vacant positions and leaves of absence without pay; or (c)
the required or planned targets, programs and services were
realized at a lesser cost because of the implementation of
measures resulting in improved systems and efficiencies.
The DBM declares that part of the savings brought under the
DAP came from "pooling of unreleased appropriations such as
unreleased Personnel Services appropriations which will lapse
at the end of the year, unreleased appropriations of slow
moving projects and discontinued projects per Zero-Based
Budgeting findings."
The declaration of the DBM by itself does not state the clear
legal basis for the treatment of unreleased or unalloted
appropriations as savings.
The fact alone that the appropriations are unreleased or
unalloted is a mere description of the status of the items as
unalloted or unreleased. They have not yet ripened into
categories of items from which savings can be generated.
Appropriations have been considered "released" if there has
already been an allotment or authorization to incur obligations
and disbursement authority. This means that the DBM has
issued either an ABM (for those not needing clearance), or a
SARO (for those needing clearance), and consequently an NCA,
NCAA or CDC, as the case may be. Appropriations remain
unreleased, for instance, because of noncompliance with
documentary requirements (like the Special Budget Request), or
simply because of the unavailability of funds. But the
appropriations do not actually reach the agencies to which they
were allocated under the GAAs, and have remained with the
DBM technically speaking. Ergo, unreleased appropriations refer
to appropriations with allotments but without disbursement
authority.
For us to consider unreleased appropriations as savings, unless
these met the statutory definition of savings, would seriously
undercut the congressional power of the purse, because such
appropriations had not even reached and been used by the
agency concerned vis-à-vis the PAPs for which Congress had
allocated them. However, if an agency has unfilled positions in
its plantilla and did not receive an allotment and NCA for such
vacancies, appropriations for such positions, although
unreleased, may already constitute savings for that agency
under the second instance.
Unobligated allotments, on the other hand, were encompassed
by the first part of the definition of "savings" in the GAA, that is,
as "portions or balances of any programmed appropriation in
this Act free from any obligation or encumbrance." But the first
part of the definition was further qualified by the three
enumerated instances of when savings would be realized. As
such, unobligated allotments could not be indiscriminately
declared as savings without first determining whether any of
the three instances existed. This signified that the DBM’s
withdrawal of unobligated allotments had disregarded the
definition of savings under the GAAs.
Justice Carpio has validly observed in his Separate Concurring
Opinion that MOOE appropriations are deemed divided into
twelve monthly allocations within the fiscal year; hence, savings
could be generated monthly from the excess or unused MOOE
appropriations other than the Mandatory Expenditures and
Expenditures for Business-type Activities because of the
physical impossibility to obligate and spend such funds as
MOOE for a period that already lapsed. Following this
observation, MOOE for future months are not savings and
cannot be transferred.
The DBM’s Memorandum for the President dated June 25, 2012
(which became the basis of NBC No. 541) stated:
ON THE AUTHORITY TO WITHDRAW UNOBLIGATED
ALLOTMENTS
5.0 The DBM, during the course of performance reviews
conducted on the agencies’ operations, particularly on
the implementation of their projects/activities,
including expenses incurred in undertaking the same,
have been continuously calling the attention of all
National Government agencies (NGAs) with low levels
of obligations as of end of the first quarter to speedup
the implementation of their programs and projects in
the second quarter.
6.0 Said reminders were made in a series of
consultation meetings with the concerned agencies and
with call-up letters sent.
7.0 Despite said reminders and the availability of funds
at the department’s disposal, the level of financial
performance of some departments registered below
program, with the targeted obligations/disbursements
for the first semester still not being met.
8.0 In order to maximize the use of the available
allotment, all unobligated balances as of June 30, 2012,
both for continuing and current allotments shall be
withdrawn and pooled to fund fast moving
programs/projects.
9.0 It may be emphasized that the allotments to be
withdrawn will be based on the list of slow moving
projects to be identified by the agencies and their catch
up plans to be evaluated by the DBM.
It is apparent from the foregoing text that the withdrawal of
unobligated allotments would be based on whether the
allotments pertained to slow-moving projects, or not. However,
NBC No. 541 did not set in clear terms the criteria for the
withdrawal of unobligated allotments, viz:
3.1. These guidelines shall cover the withdrawal of
unobligated allotments as of June 30, 2012 ofall
national government agencies (NGAs) charged against
FY 2011 Continuing Appropriation (R.A. No. 10147) and
FY 2012 Current Appropriation (R.A. No. 10155),
pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating
Expenses (MOOE) related to the
 implementation of programs and projects, as
well as capitalized MOOE; and
3.1.3 Personal Services corresponding to
unutilized pension benefits declared as savings
by the agencies concerned based on their
undated/validated list of pensioners.
A perusal of its various provisions reveals that NBC No. 541
targeted the "withdrawal of unobligated allotments of agencies
with low levels of obligations"151 "to fund priority and/or fast-
moving programs/projects."152 But the fact that the withdrawn
allotments could be "[r]eissued for the original programs and
projects of the agencies/OUs concerned, from which the
allotments were withdrawn"153 supported the conclusion that
the PAPs had not yet been finally discontinued or abandoned.
Thus, the purpose for which the withdrawn funds had been
appropriated was not yet fulfilled, or did not yet cease to exist,
rendering the declaration of the funds as savings impossible.
Worse, NBC No. 541 immediately considered for withdrawal all
released allotments in 2011 charged against the 2011 GAA that
had remained unobligated based on the following
considerations, to wit:
5.4.1 The departments/agencies’ approved priority
programs and projects are assumed to be
implementation-ready and doable during the given
fiscal year; and
5.4.2 The practice of having substantial carryover
appropriations may imply that the agency has a slower-
than-programmed implementation capacity or agency
tends to implement projects within a two-year
timeframe.
Such withdrawals pursuant to NBC No. 541, the circular that
affected the unobligated allotments for continuing and current
appropriations as of June 30, 2012, disregarded the 2-year
period of availability of the appropriations for MOOE and capital
outlay extended under Section 65, General Provisions of the
2011 GAA, viz:
Section 65. Availability of Appropriations. — Appropriations for
MOOE and capital outlays authorized in this Act shall be
available for release and obligation for the purpose specified,
and under the same special provisions applicable thereto, for a
period extending to one fiscal year after the end of the year in
which such items were appropriated: PROVIDED, That
appropriations for MOOE and capital outlays under R.A. No.
9970 shall be made available up to the end of FY 2011:
PROVIDED, FURTHER, That a report on these releases and
obligations shall be submitted to the Senate Committee on
Finance and the House Committee on Appropriations.
and Section 63 General Provisions of the 2012 GAA, viz:
Section 63. Availability of Appropriations. — Appropriations for
MOOE and capital outlays authorized in this Act shall be
available for release and obligation for the purpose specified,
and under the same special provisions applicable thereto, for a
period extending to one fiscal year after the end of the year in
which such items were appropriated: PROVIDED, That a report
on these releases and obligations shall be submitted to the
Senate Committee on Finance and the House Committee on
Appropriations, either in printed form or by way of electronic
document.154
Thus, another alleged area of constitutional infirmity was that
the DAP and its relevant issuances shortened the period of
availability of the appropriations for MOOE and capital outlays.
Congress provided a one-year period of availability of the funds
for all allotment classes in the 2013 GAA (R.A. No. 10352), to
wit:
Section 63. Availability of Appropriations.— All appropriations
authorized in this Act shall be available for release and
obligation for the purposes specified, and under the same
special provisions applicable thereto, until the end of FY 2013:
PROVIDED, That a report on these releases and obligations shall
be submitted to the Senate Committee on Finance and House
Committee on Appropriations, either in printed form or by way
of electronic document.
Yet, in his memorandum for the President dated May 20, 2013,
Sec. Abad sought omnibus authority to consolidate savings and
unutilized balances to fund the DAP on a quarterly basis, viz:
7.0 If the level of financial performance of some
department will register below program, even with the
availability of funds at their disposal, the targeted
obligations/disbursements for each quarter will not be
met. It is important to note that these funds will lapse
at the end of the fiscal year if these remain unobligated.
8.0 To maximize the use of the available allotment, all
unobligated balances at the end of every quarter, both
for continuing and current allotments shall be
withdrawn and pooled to fund fast moving
programs/projects.
9.0 It may be emphasized that the allotments to be
withdrawn will be based on the list of slow moving
projects to be identified by the agencies and their catch
up plans to be evaluated by the DBM.
The validity period of the affected appropriations, already given
the brief Lifes pan of one year, was further shortened to only a
quarter of a year under the DBM’s memorandum dated May 20,
2013.
The petitioners accuse the respondents of forcing the
generation of savings in order to have a larger fund available for
discretionary spending. They aver that the respondents, by
withdrawing unobligated allotments in the middle of the fiscal
year, in effect deprived funding for PAPs with existing
appropriations under the GAAs.155
The respondents belie the accusation, insisting that the
unobligated allotments were being withdrawn upon the
instance of the implementing agencies based on their own
assessment that they could not obligate those allotments
pursuant to the President’s directive for them to spend their
appropriations as quickly as they could in order to ramp up the
economy.156
We agree with the petitioners.
Contrary to the respondents’ insistence, the withdrawals were
upon the initiative of the DBM itself. The text of NBC No. 541
bears this out, to wit:
5.2 For the purpose of determining the amount of unobligated
allotments that shall be withdrawn, all
departments/agencies/operating units (OUs) shall submit to
DBM not later than July 30, 2012, the following budget
accountability reports as of June 30, 2012;
- Statement of Allotments, Obligation and Balances
(SAOB);
- Financial Report of Operations (FRO); and
- Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item
5.2 of this Circular, the agency’s latest report available shall be
used by DBM as basis for withdrawal of allotment. The DBM
shall compute/approximate the agency’s obligation level as of
June 30 to derive its unobligated allotments as of same period.
Example: If the March 31 SAOB or FRO reflects actual
obligations of P 800M then the June 30 obligation level shall
approximate to ₱1,600 M (i.e., ₱800 M x 2 quarters).
The petitioners assert that no law had authorized the
withdrawal and transfer of unobligated allotments and the
pooling of unreleased appropriations; and that the unbridled
withdrawal of unobligated allotments and the retention of
appropriated funds were akin to the impoundment of
appropriations that could be allowed only in case of
"unmanageable national government budget deficit" under the
GAAs,157 thus violating the provisions of the GAAs of 2011, 2012
and 2013 prohibiting the retention or deduction of
allotments.158
In contrast, the respondents emphasize that NBC No. 541
adopted a spending, not saving, policy as a last-ditch effort of
the Executive to push agencies into actually spending their
appropriations; that such policy did not amount to an
impoundment scheme, because impoundment referred to the
decision of the Executive to refuse to spend funds for political
or ideological reasons; and that the withdrawal of allotments
under NBC No. 541 was made pursuant to Section 38, Chapter
5, Book VI of the Administrative Code, by which the President
was granted the authority to suspend or otherwise stop further
expenditure of funds allotted to any agency whenever in his
judgment the public interest so required.
The assertions of the petitioners are upheld. The withdrawal
and transfer of unobligated allotments and the pooling of
unreleased appropriations were invalid for being bereft of legal
support. Nonetheless, such withdrawal of unobligated
allotments and the retention of appropriated funds cannot be
considered as impoundment.
According to Philippine Constitution Association v.
Enriquez:159 "Impoundment refers to a refusal by the President,
for whatever reason, to spend funds made available by
Congress. It is the failure to spend or obligate budget authority
of any type." Impoundment under the GAA is understood to
mean the retention or deduction of appropriations. The 2011
GAA authorized impoundment only in case of unmanageable
National Government budget deficit, to wit:
Section 66. Prohibition Against Impoundment of Appropriations.
No appropriations authorized under this Act shall be impounded
through retention or deduction, unless in accordance with the
rules and regulations to be issued by the DBM: PROVIDED, That
all the funds appropriated for the purposes, programs, projects
and activities authorized under this Act, except those covered
under the Unprogrammed Fund, shall be released pursuant to
Section 33 (3), Chapter 5, Book VI of E.O. No. 292.
Section 67. Unmanageable National Government Budget Deficit.
Retention or deduction of appropriations authorized in this Act
shall be effected only in cases where there is an unmanageable
national government budget deficit.
Unmanageable national government budget deficit as used in
this section shall be construed to mean that (i) the actual
national government budget deficit has exceeded the quarterly
budget deficit targets consistent with the full-year target deficit
as indicated in the FY 2011 Budget of
Expenditures and Sources of Financing submitted by the
President and approved by Congress pursuant to Section 22,
Article VII of the Constitution, or (ii) there are clear economic
indications of an impending occurrence of such condition, as
determined by the Development Budget Coordinating
Committee and approved by the President.
The 2012 and 2013 GAAs contained similar provisions.
The withdrawal of unobligated allotments under the DAP should
not be regarded as impoundment because it entailed only the
transfer of funds, not the retention or deduction of
appropriations.
Nor could Section 68 of the 2011 GAA (and the similar
provisions of the 2012 and 2013 GAAs) be applicable. They
uniformly stated:
Section 68. Prohibition Against Retention/Deduction of
Allotment. Fund releases from appropriations provided in this
Act shall be transmitted intact or in full to the office or agency
concerned. No retention or deduction as reserves or overhead
shall be made, except as authorized by law, or upon direction of
the President of the Philippines. The COA shall ensure
compliance with this provision to the extent that sub-allotments
by agencies to their subordinate offices are in conformity with
the release documents issued by the DBM.
The provision obviously pertained to the retention or deduction
of allotments upon their release from the DBM, which was a
different matter altogether. The Court should not expand the
meaning of the provision by applying it to the withdrawal of
allotments.
The respondents rely on Section 38, Chapter 5, Book VI of the
Administrative Code of 1987 to justify the withdrawal of
unobligated allotments. But the provision authorized only the
suspension or stoppage of further expenditures, not the
withdrawal of unobligated allotments, to wit:
Section 38. Suspension of Expenditure of Appropriations.-
Except as otherwise provided in the General Appropriations Act
and whenever in his judgment the public interest so requires,
the President, upon notice to the head of office concerned, is
authorized to suspend or otherwise stop further expenditure of
funds allotted for any agency, or any other expenditure
authorized in the General Appropriations Act, except for
personal services appropriations used for permanent officials
and employees.
Moreover, the DBM did not suspend or stop further
expenditures in accordance with Section 38, supra, but instead
transferred the funds to other PAPs.
It is relevant to remind at this juncture that the balances of
appropriations that remained unexpended at the end of the
fiscal year were to be reverted to the General
Fund.1âwphi1 This was the mandate of Section 28, Chapter IV,
Book VI of the Administrative Code, to wit:
Section 28. Reversion of Unexpended Balances of
Appropriations, Continuing Appropriations.- Unexpended
balances of appropriations authorized in the General
Appropriation Act shall revert to the unappropriated surplus of
the General Fund at the end of the fiscal year and shall not
thereafter be available for expenditure except by subsequent
legislative enactment: Provided, that appropriations for capital
outlays shall remain valid until fully spent or reverted: provided,
further, that continuing appropriations for current operating
expenditures may be specifically recommended and approved
as such in support of projects whose effective implementation
calls for multi-year expenditure commitments: provided, finally,
that the President may authorize the use of savings realized by
an agency during given year to meet non-recurring expenditures
in a subsequent year.
The balances of continuing appropriations shall be reviewed as
part of the annual budget preparation process and the
preparation process and the President may approve upon
recommendation of the Secretary, the reversion of funds no
longer needed in connection with the activities funded by said
continuing appropriations.
The Executive could not circumvent this provision by declaring
unreleased appropriations and unobligated allotments as
savings prior to the end of the fiscal year.
b.3. Third Requisite – No funds from
savings could be transferred under
the DAP to augment deficient items
not provided in the GAA
The third requisite for a valid transfer of funds is that the
purpose of the transfer should be "to augment an item in the
general appropriations law for the respective offices." The term
"augment" means to enlarge or increase in size, amount, or
degree.160
The GAAs for 2011, 2012 and 2013 set as a condition for
augmentation that the appropriation for the PAP item to be
augmented must be deficient, to wit: –
x x x Augmentation implies the existence in this Act of a
program, activity, or project with an appropriation, which upon
implementation, or subsequent evaluation of needed resources,
is determined to be deficient. In no case shall a non-existent
program, activity, or project, be funded by augmentation from
savings or by the use of appropriations otherwise authorized in
this Act.
In other words, an appropriation for any PAP must first be
determined to be deficient before it could be augmented from
savings. Note is taken of the fact that the 2013 GAA already
made this quite clear, thus:
Section 52. Use of Savings. The President of the Philippines, the
Senate President, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, the Heads of
Constitutional Commissions enjoying fiscal autonomy, and the
Ombudsman are hereby authorized to use savings in their
respective appropriations to augment actual deficiencies
incurred for the current year in any item of their respective
appropriations.
As of 2013, a total of ₱144.4 billion worth of PAPs were
implemented through the DAP.161
Of this amount ₱82.5 billion were released in 2011 and ₱54.8
billion in 2012.162 Sec. Abad has reported that 9% of the total
DAP releases were applied to the PAPs identified by the
legislators.163
The petitioners disagree, however, and insist that the DAP
supported the following PAPs that had not been covered with
appropriations in the respective GAAs, namely:
 (i) ₱1.5 billion for the Cordillera People’s Liberation properly be accounted for because the funds were released nel nce Outlays
Army; following and pursuant to the standard practices adopted by Service and
the DBM.167 In support of its argument, the OSG has submitted s Other
(ii) ₱1.8 billion for the Moro National Liberation Front; seven evidence packets containing memoranda, SAROs, and Operatin
other pertinent documents relative to the implementation and g
(iii) ₱700 million for assistance to Quezon Province;164 fund transfers under the DAP.168 Expendit
ures
(iv) ₱50 million to ₱100 (million) each to certain Upon careful review of the documents contained in the seven
senators;165 evidence packets, we conclude that the "savings" pooled under II Operations
the DAP were allocated to PAPs that were not covered by any I.
appropriations in the pertinent GAAs. a Funding 177,40 1,887,36 49,090, 2,113,86
(v) ₱10 billion for the relocation of families living along
. Assistance to 6,000 5,000 000 1,000
dangerous zones under the National Housing Authority;
For example, the SARO issued on December 22, 2011 for the Science
highly vaunted Disaster Risk, Exposure, Assessment and and
(vi) ₱10 billion and ₱20 billion equity infusion under the
Mitigation (DREAM) project under the Department of Science Technology
Bangko Sentral;
and Technology (DOST) covered the amount of ₱1.6 Activities
(vii) ₱5.4 billion landowners’ compensation under the Billion,169 broken down as follows: 1 Central Office 1,554,23 1,554,23
Department of Agrarian Reform; . 8,000 8,000
APPROPRIATION PARTICULARS AMOUNT
(viii) ₱8.6 billion for the ARMM comprehensive peace a.
CODE AUTHORIZED
and development program; Generati
A.03.a.01.a Generation of new on of
(ix) ₱6.5 billion augmentation of LGU internal revenue knowledge and technologies new
allotments and research capability knowled
building in priority areas ge and
(x) ₱5 billion for crucial projects like tourism road identified as strategic to P 43,504,024 technolo
construction under the Department of Tourism and the National Development 1,164,517,589 gies and
Department of Public Works and Highways; Personnel Services 391,978,387 research
Maintenance and Other P capabilit
(xi) ₱1.8 billion for the DAR-DPWH Tulay ng Pangulo; Operating Expenses 1,600,000,000 y
Capital Outlays building
(xii) ₱1.96 billion for the DOH-DPWH rehabilitation of in
regional health units; and priority
the pertinent provision of the 2011 GAA (R.A. No. 10147)
areas
showed that Congress had appropriated only ₱537,910,000 for
identifie
(xiii) ₱4 billion for the DepEd-PPP school infrastructure MOOE, but nothing for personnel services and capital outlays,
d as
projects.166 to wit:
strategic
to 537,910, 537,910,
In refutation, the OSG argues that a total of 116 DAP-financed
Person Maintena Capital TOTAL National 000 000
PAPs were implemented, had appropriation covers, and could
 Develop
ment
Aside from this transfer under the DAP to the DREAM project
exceeding by almost 300% the appropriation by Congress for
the program Generation of new knowledge and technologies
and research capability building in priority areas identified as
strategic to National Development, the Executive allotted funds
for personnel services and capital outlays. The Executive
thereby substituted its will to that of Congress. Worse, the
Executive had not earlier proposed any amount for personnel
services and capital outlays in the NEP that became the basis of
the 2011 GAA.170
It is worth stressing in this connection that the failure of the
GAAs to set aside any amounts for an expense category
sufficiently indicated that Congress purposely did not see fit to
fund, much less implement, the PAP concerned. This indication
becomes clearer when even the President himself did not
recommend in the NEP to fund the PAP. The consequence was
that any PAP requiring expenditure that did not receive any
appropriation under the GAAs could only be a new PAP, any
funding for which would go beyond the authority laid down by
Congress in enacting the GAAs. That happened in some
instances under the DAP.
In relation to the December 22, 2011 SARO issued to the
Philippine Council for Industry, Energy and Emerging
Technology Research and Development (DOST-PCIEETRD)171 for
Establishment of the Advanced Failure Analysis Laboratory,
which reads:
APPROPRIATION PARTICULARS AMOUNT
CODE AUTHORIZED
Development, integration and
coordination of the National
A.02.a
Research System for Industry, P
Energy and Emerging 300,000,000
Technology and Related public wealth resided in Congress, not in the
Fields Executive.174 Moreover, leaving the spending power of the
Capital Outlays Executive unrestricted would threaten to undo the principle of
separation of powers.175
the appropriation code and the particulars appearing in the
Congress acts as the guardian of the public treasury in faithful
SARO did not correspond to the program specified in the GAA,
discharge of its power of the purse whenever it deliberates and
whose particulars were Research and Management
acts on the budget proposal submitted by the Executive.176 Its
Services(inclusive of the following activities: (1) Technological
power of the purse is touted as the very foundation of its
and Economic Assessment for Industry, Energy and Utilities; (2)
institutional strength,177 and underpins "all other legislative
Dissemination of Science and Technology Information; and (3)
decisions and regulating the balance of influence between the
Management of PCIERD Information System for Industry,
legislative and executive branches of government."178 Such
Energy and Utilities. Even assuming that Development,
enormous power encompasses the capacity to generate money
integration and coordination of the National Research System
for the Government, to appropriate public funds, and to spend
for Industry, Energy and Emerging Technology and Related
the money.179 Pertinently, when it exercises its power of the
Fields– the particulars stated in the SARO – could fall under the
purse, Congress wields control by specifying the PAPs for which
broad program description of Research and Management
public money should be spent.
Services– as appearing in the SARO, it would nonetheless
remain a new activity by reason of its not being specifically
It is the President who proposes the budget but it is Congress
stated in the GAA. As such, the DBM, sans legislative
that has the final say on matters of appropriations.180 For this
authorization, could not validly fund and implement such PAP
purpose, appropriation involves two governing principles,
under the DAP.
namely: (1) "a Principle of the Public Fisc, asserting that all
monies received from whatever source by any part of the
In defending the disbursements, however, the OSG contends
government are public funds;" and (2) "a Principle of
that the Executive enjoyed sound discretion in implementing
Appropriations Control, prohibiting expenditure of any public
the budget given the generality in the language and the broad
money without legislative authorization."181 To conform with
policy objectives identified under the GAAs;172 and that the
the governing principles, the Executive cannot circumvent the
President enjoyed unlimited authority to spend the initial
prohibition by Congress of an expenditure for a PAP by resorting
appropriations under his authority to declare and utilize
to either public or private funds.182 Nor could the Executive
savings,173 and in keeping with his duty to faithfully execute the
transfer appropriated funds resulting in an increase in the
laws.
budget for one PAP, for by so doing the appropriation for
another PAP is necessarily decreased. The terms of both
Although the OSG rightly contends that the Executive was appropriations will thereby be violated.
authorized to spend in line with its mandate to faithfully
execute the laws (which included the GAAs), such authority did
b.4 Third Requisite – Cross-border
not translate to unfettered discretion that allowed the
augmentations from savings were
President to substitute his own will for that of Congress. He was
prohibited by the Constitution
still required to remain faithful to the provisions of the GAAs,
given that his power to spend pursuant to the GAAs was but a
By providing that the President, the President of the Senate, the
delegation to him from Congress. Verily, the power to spend the
Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, and the Heads of the Constitutional
Commissions may be authorized to augment any item in the
GAA "for their respective offices," Section 25(5), supra, has
delineated borders between their offices, such that funds
appropriated for one office are prohibited from crossing over to
another office even in the guise of augmentation of a deficient
item or items. Thus, we call such transfers of funds cross-border
transfers or cross-border augmentations.
To be sure, the phrase "respective offices" used in Section 25(5),
supra, refers to the entire Executive, with respect to the
President; the Senate, with respect to the Senate President; the
House of Representatives, with respect to the Speaker; the
Judiciary, with respect to the Chief Justice; the Constitutional
Commissions, with respect to their respective Chairpersons.
Did any cross-border transfers or augmentations transpire?
During the oral arguments on January 28, 2014, Sec. Abad
admitted making some cross-border augmentations, to wit:
JUSTICE BERSAMIN:
Alright, the whole time that you have been Secretary of
Department of Budget and Management, did the Executive
Department ever redirect any part of savings of the National
Government under your control cross border to another
department?
SECRETARY ABAD:
Well, in the Memos that we submitted to you, such an instance,
Your Honor
JUSTICE BERSAMIN:
Can you tell me two instances? I don’t recall having read your
material.
SECRETARY ABAD:
Well, the first instance had to do with a request from the House
of Representatives. They started building their e-library in 2010
and they had a budget for about 207 Million but they lack about
43 Million to complete its 250 Million requirements. Prior to
that, the COA, in an audit observation informed the Speaker
that they had to continue with that construction otherwise the
whole building, as well as the equipments therein may suffer
from serious deterioration. And at that time, since the budget of
the House of Representatives was not enough to complete 250
Million, they wrote to the President requesting for an
augmentation of that particular item, which was granted, Your
Honor. The second instance in the Memos is a request from the
Commission on Audit. At the time they were pushing very
strongly the good governance programs of the government and
therefore, part of that is a requirement to conduct audits as
well as review financial reports of many agencies. And in the
performance of that function, the Commission on Audit needed
information technology equipment as well as hire consultants
and litigators to help them with their audit work and for that
they requested funds from the Executive and the President saw
that it was important for the Commission to be provided with
those IT equipments and litigators and consultants and the
request was granted, Your Honor.
JUSTICE BERSAMIN:
These cross border examples, cross border augmentations were
not supported by appropriations…
SECRETARY ABAD:
They were, we were augmenting existing items within their…
(interrupted)
JUSTICE BERSAMIN:
No, appropriations before you augmented because this is a
cross border and the tenor or text of the Constitution is quite
clear as far as I am concerned. It says here, "The power to
augment may only be made to increase any item in the General
Appropriations Law for their respective offices." Did you not
feel constricted by this provision?
SECRETARY ABAD:
Well, as the Constitution provides, the prohibition we felt was
on the transfer of appropriations, Your Honor. What we thought
we did was to transfer savings which was needed by the
Commission to address deficiency in an existing item in both the
Commission as well as in the House of Representatives; that’s
how we saw…(interrupted)
JUSTICE BERSAMIN:
So your position as Secretary of Budget is that you could do
that?
SECRETARY ABAD:
In an extreme instances because…(interrupted)
JUSTICE BERSAMIN:
No, no, in all instances, extreme or not extreme, you could do
that, that’s your feeling.
SECRETARY ABAD:
Well, in that particular situation when the request was made by
the Commission and the House of Representatives, we felt that
we needed to respond because we felt…(interrupted).183
The records show, indeed, that funds amounting to
₱143,700,000.00 and ₱250,000,000.00 were transferred under
the DAP respectively to the COA184 and the House of
Representatives.185 Those transfers of funds, which constituted how they shall be applied by that department whose fiscal
cross-border augmentations for being from the Executive to the autonomy is guaranteed by the Constitution.188
COA and the House of Representatives, are graphed as
follows:186 In the oral arguments held on February 18, 2014, Justice Vicente
V. Mendoza, representing Congress, announced a different
characterization of the cross-border transfers of funds as in the
AMOUNT nature of "aid" instead of "augmentation," viz:
(In thousand
pesos) HONORABLE MENDOZA:
DATE
OFFICE PURPOSE RELEASE Reserv Releas
The cross-border transfers, if Your Honors please, is not an
D e es application of the DAP. What were these cross-border
Impose transfers? They are transfers of savings as defined in the various
d General Appropriations Act. So, that makes it similar to the DAP,
Commission IT Infrastructure 11/11/1 143,70 the use of savings. There was a cross-border which appears to
on Program and hiring 1 0 be in violation of Section 25, paragraph 5 of Article VI, in the
Audit of additional sense that the border was crossed. But never has it been
litigation experts claimed that the purpose was to augment a deficient item in
another department of the government or agency of the
Congress – Completion of the 07/23/1 207,03 250,00 government. The cross-border transfers, if Your Honors please,
House of construction of the 2 4 0 were in the nature of [aid] rather than augmentations. Here is a
Representativ Legislative Library (Saving government entity separate and independent from the
es and Archives s of Executive Department solely in need of public funds. The
Building/Congressio HOR) President is there 24 hours a day, 7 days a week. He’s in charge
nal e-library of the whole operation although six or seven heads of
government offices are given the power to augment. Only the
The respondents further stated in their memorandum that the President stationed there and in effect in-charge and has the
President "made available" to the "Commission on Elections the responsibility for the failure of any part of the government. You
savings of his department upon [its] request for funds…"187 This have election, for one reason or another, the money is not
was another instance of a cross-border augmentation. enough to hold election. There would be chaos if no money is
given as an aid, not to augment, but as an aid to a department
The respondents justified all the cross-border transfers thusly: like COA. The President is responsible in a way that the other
heads, given the power to augment, are not. So, he cannot very
99. The Constitution does not prevent the President from well allow this, if Your Honor please.189
transferring savings of his department to another department
upon the latter’s request, provided it is the recipient JUSTICE LEONEN:
department that uses such funds to augment its own
appropriation. In such a case, the President merely gives the May I move to another point, maybe just briefly. I am curious
other department access to public funds but he cannot dictate that the position now, I think, of government is that some
transfers of savings is now considered to be, if I’m not mistaken,
aid not augmentation. Am I correct in my hearing of your
argument?
HONORABLE MENDOZA:
That’s our submission, if Your Honor, please.
JUSTICE LEONEN:
May I know, Justice, where can we situate this in the text of the
Constitution? Where do we actually derive the concepts that
transfers of appropriation from one branch to the other or what
happened in DAP can be considered a said? What particular text
in the Constitution can we situate this?
HONORABLE MENDOZA:
There is no particular provision or statutory provision for that
matter, if Your Honor please. It is drawn from the fact that the
Executive is the executive in-charge of the success of the
government.
JUSTICE LEONEN:
So, the residual powers labelled in Marcos v. Manglapus would
be the basis for this theory of the government?
HONORABLE MENDOZA:
Yes, if Your Honor, please.
JUSTICE LEONEN:
A while ago, Justice Carpio mentioned that the remedy is might
be to go to Congress. That there are opportunities and there
have been opportunities of the President to actually go to
Congress and ask for supplemental budgets?
HONORABLE MENDOZA:
If there is time to do that, I would say yes.
JUSTICE LEONEN:
So, the theory of aid rather than augmentation applies in extra-
ordinary situation?
HONORABLE MENDOZA:
Very extra-ordinary situations.
JUSTICE LEONEN:
But Counsel, this would be new doctrine, in case?
HONORABLE MENDOZA:
Yes, if Your Honor please.190
Regardless of the variant characterizations of the cross-border
transfers of funds, the plain text of Section 25(5), supra,
disallowing cross border transfers was disobeyed. Cross-border
transfers, whether as augmentation, or as aid, were prohibited
under Section 25(5), supra.
4.
Sourcing the DAP from unprogrammed
funds despite the original revenue targets
not having been exceeded was invalid
Funding under the DAP were also sourced from unprogrammed
funds provided in the GAAs for 2011, 2012,and 2013. The
respondents stress, however, that the unprogrammed funds
were not brought under the DAP as savings, but as separate
sources of funds; and that, consequently, the release and use of
unprogrammed funds were not subject to the restrictions under
Section 25(5), supra.
The documents contained in the Evidence Packets by the OSG
have confirmed that the unprogrammed funds were treated as
separate sources of funds. Even so, the release and use of the
unprogrammed funds were still subject to restrictions, for, to
start with, the GAAs precisely specified the instances when the
unprogrammed funds could be released and the purposes for
which they could be used.
The petitioners point out that a condition for the release of the
unprogrammed funds was that the revenue collections must
exceed revenue targets; and that the release of the
unprogrammed funds was illegal because such condition was
not met.191
The respondents disagree, holding that the release and use of
the unprogrammed funds under the DAP were in accordance
with the pertinent provisions of the GAAs. In particular, the
DBM avers that the unprogrammed funds could be availed of
when any of the following three instances occur, to wit: (1) the
revenue collections exceeded the original revenue targets
proposed in the BESFs submitted by the President to Congress;
(2) new revenues were collected or realized from sources not
originally considered in the BESFs; or(3) newly-approved loans
for foreign assisted projects were secured, or when conditions
were triggered for other sources of funds, such as perfected
loan agreements for foreign-assisted projects.192 This view of
the DBM was adopted by all the respondents in their
Consolidated Comment.193
The BESFs for 2011, 2012 and 2013 uniformly defined
"unprogrammed appropriations" as appropriations that
provided standby authority to incur additional agency
obligations for priority PAPs when revenue collections exceeded
targets, and when additional foreign funds are
generated.194 Contrary to the DBM’s averment that there were
three instances when unprogrammed funds could be released,
the BESFs envisioned only two instances. The third mentioned
by the DBM – the collection of new revenues from sources not
originally considered in the BESFs – was not included. This
meant that the collection of additional revenues from new
sources did not warrant the release of the unprogrammed
funds. Hence, even if the revenues not considered in the BESFs
were collected or generated, the basic condition that the
revenue collections should exceed the revenue targets must still
be complied with in order to justify the release of the
unprogrammed funds.
The view that there were only two instances when the
unprogrammed funds could be released was bolstered by the
following texts of the Special Provisions of the 2011 and 2012
GAAs, to wit:
2011 GAA
1. Release of Fund. The amounts authorized herein shall be
released only when the revenue collections exceed the original
revenue targets submitted by the President of the Philippines to
Congress pursuant to Section 22, Article VII of the Constitution,
including savings generated from programmed appropriations
for the year: PROVIDED, That collections arising from sources
not considered in the aforesaid original revenue targets may be
used to cover releases from appropriations in this Fund:
PROVIDED, FURTHER, That in case of newly approved loans for
foreign-assisted projects, the existence of a perfected loan
agreement for the purpose shall be sufficient basis for the
issuance of a SARO covering the loan proceeds: PROVIDED,
FURTHERMORE, That if there are savings generated from the
programmed appropriations for the first two quarters of the
year, the DBM may, subject to the approval of the President,
release the pertinent appropriations under the Unprogrammed
Fund corresponding to only fifty percent (50%) of the said
savings net of revenue shortfall: PROVIDED, FINALLY, That the
release of the balance of the total savings from programmed
appropriations for the year shall be subject to fiscal
programming and approval of the President.
2012 GAA
1. Release of the Fund. The amounts authorized herein shall be
released only when the revenue collections exceed the original
revenue targets submitted by the President of the Philippines to
Congress pursuant to Section 22, Article VII of the Constitution:
PROVIDED, That collections arising from sources not considered
in the aforesaid original revenue targets may be used to cover
releases from appropriations in this Fund: PROVIDED, FURTHER,
That in case of newly approved loans for foreign-assisted
projects, the existence of a perfected loan agreement for the
purpose shall be sufficient basis for the issuance of a SARO
covering the loan proceeds.
As can be noted, the provisos in both provisions to the effect
that "collections arising from sources not considered in the
aforesaid original revenue targets may be used to cover
releases from appropriations in this Fund" gave the authority to
use such additional revenues for appropriations funded from
the unprogrammed funds. They did not at all waive compliance
with the basic requirement that revenue collections must still
exceed the original revenue targets.
In contrast, the texts of the provisos with regard to additional
revenues generated from newly-approved foreign loans were
clear to the effect that the perfected loan agreement would be
in itself "sufficient basis" for the issuance of a SARO to release
the funds but only to the extent of the amount of the loan. In
such instance, the revenue collections need not exceed the
revenue targets to warrant the release of the loan proceeds,
and the mere perfection of the loan agreement would suffice.
It can be inferred from the foregoing that under these
provisions of the GAAs the additional revenues from sources
not considered in the BESFs must be taken into account in
determining if the revenue collections exceeded the revenue
targets. The text of the relevant provision of the 2013 GAA,
which was substantially similar to those of the GAAs for 2011
and 2012, already made this explicit, thus:
1. Release of the Fund. The amounts authorized herein shall be
released only when the revenue collections exceed the original
revenue targets submitted by the President of the Philippines to
Congress pursuant to Section 22, Article VII of the Constitution,
including collections arising from sources not considered in the Selected Taxes on Services
aforesaid original revenue target, as certified by the BTr: Taxes on the Use of Goods or Property or Permission to
PROVIDED, That in case of newly approved loans for foreign- Perform Activities
assisted projects, the existence of a perfected loan agreement Other Taxes
for the purpose shall be sufficient basis for the issuance of a Taxes on International Trade and Transactions
SARO covering the loan proceeds.
NON-TAX REVENUES
Consequently, that there were additional revenues from
sources not considered in the revenue target would not be Fees and Charges
enough. The total revenue collections must still exceed the BTR Income
original revenue targets to justify the release of the
unprogrammed funds (other than those from newly-approved Government Services
foreign loans). Interest on NG Deposits
Interest on Advances to Government
The present controversy on the unprogrammed funds was Corporations
rooted in the correct interpretation of the phrase "revenue Income from Investments
collections should exceed the original revenue targets." The
petitioners take the phrase to mean that the total revenue Interest on Bond Holdings
collections must exceed the total revenue target stated in the
BESF, but the respondents understand the phrase to refer only Guarantee Fee
to the collections for each source of revenue as enumerated in Gain on Foreign Exchange
the BESF, with the condition being deemed complied with once NG Income Collected by BTr
the revenue collections from a particular source already
exceeded the stated target. Dividends on Stocks
NG Share from Airport Terminal Fee
The BESF provided for the following sources of revenue, with NG Share from PAGCOR Income
the corresponding revenue target stated for each source of NG Share from MIAA Profit
revenue, to wit:
Privatization
TAX REVENUES Foreign Grants
Taxes on Net Income and Profits Thus, when the Court required the respondents to submit a
Taxes on Property certification from the Bureau of Treasury (BTr) to the effect that
Taxes on Domestic Goods and Services the revenue collections had exceeded the original revenue
targets,195 they complied by submitting certifications from the
General Sales, Turnover or VAT BTr and Department of Finance (DOF) pertaining to only one
Selected Excises on Goods identified source of revenue – the dividends from the shares of
stock held by the Government in government-owned and
controlled corporations.
To justify the release of the unprogrammed funds for 2011, the
OSG presented the certification dated March 4, 2011 issued by
DOF Undersecretary Gil S. Beltran, as follows:
This is to certify that under the Budget for Expenditures and
Sources of Financing for 2011, the programmed income from
dividends from shares of stock in government-owned and
controlled corporations is 5.5 billion.
This is to certify further that based on the records of the Bureau
of Treasury, the National Government has recorded dividend
income amounting to ₱23.8 billion as of 31 January 2011.196 For
2012, the OSG submitted the certification dated April 26, 2012
issued by National Treasurer Roberto B. Tan, viz:
This is to certify that the actual dividend collections remitted to
the National Government for the period January to March 2012
amounted to ₱19.419 billion compared to the full year program
of ₱5.5 billion for 2012.197 And, finally, for 2013, the OSG
presented the certification dated July 3, 2013 issued by National
Treasurer Rosalia V. De Leon, to wit:
This is to certify that the actual dividend collections remitted to
the National Government for the period January to May 2013
amounted to ₱12.438 billion compared to the full year program
of ₱10.0198 billion for 2013. Moreover, the National Government
accounted for the sale of the right to build and operate the
NAIA expressway amounting to ₱11.0 billion in June 2013.199
The certifications reflected that by collecting dividends
amounting to ₱23.8 billion in 2011, ₱19.419 billion in 2012, and
₱12.438 billion in 2013 the BTr had exceeded only the ₱5.5
billion in target revenues in the form of dividends from stocks in
each of 2011 and 2012, and only the ₱10 billion in target
revenues in the form of dividends from stocks in 2013.
However, the requirement that revenue collections exceed the
original revenue targets was to be construed in light of the
purpose for which the unprogrammed funds were incorporated
in the GAAs as standby appropriations to support additional
expenditures for certain priority PAPs should the revenue
collections exceed the resource targets assumed in the budget
or when additional foreign project loan proceeds were realized.
The unprogrammed funds were included in the GAAs to provide
ready cover so as not to delay the implementation of the PAPs
should new or additional revenue sources be realized during the
year.200 Given the tenor of the certifications, the unprogrammed
funds were thus not yet supported by the corresponding
resources.201
The revenue targets stated in the BESF were intended to
address the funding requirements of the proposed programmed
appropriations. In contrast, the unprogrammed funds, as
standby appropriations, were to be released only when there
were revenues in excess of what the programmed
appropriations required. As such, the revenue targets should be
considered as a whole, not individually; otherwise, we would be
dealing with artificial revenue surpluses. The requirement that
revenue collections must exceed revenue target should be
understood to mean that the revenue collections must exceed
the total of the revenue targets stated in the BESF. Moreover,
to release the unprogrammed funds simply because there was
an excess revenue as to one source of revenue would be an
unsound fiscal management measure because it would
disregard the budget plan and foster budget deficits, in
contravention of the Government’s surplus budget policy.202
We cannot, therefore, subscribe to the respondents’ view.
5.
Equal protection, checks and balances,
and public accountability challenges
The DAP is further challenged as violative of the Equal
Protection Clause, the system of checks and balances, and the
principle of public accountability. With respect to the challenge
against the DAP under the Equal Protection Clause,203 Luna
argues that the implementation of the DAP was "unfair as it
[was] selective" because the funds released under the DAP was
not made available to all the legislators, with some of them
refusing to avail themselves of the DAP funds, and others being
unaware of the availability of such funds. Thus, the DAP
practised "undue favoritism" in favor of select legislators in
contravention of the Equal Protection Clause.
Similarly, COURAGE contends that the DAP violated the Equal
Protection Clause because no reasonable classification was used
in distributing the funds under the DAP; and that the Senators
who supposedly availed themselves of said funds were
differently treated as to the amounts they respectively received.
Anent the petitioners’ theory that the DAP violated the system
of checks and balances, Luna submits that the grant of the funds
under the DAP to some legislators forced their silence about the
issues and anomalies surrounding the DAP. Meanwhile, Belgica
stresses that the DAP, by allowing the legislators to identify
PAPs, authorized them to take part in the implementation and
execution of the GAAs, a function that exclusively belonged to
the Executive; that such situation constituted undue and
unjustified legislative encroachment in the functions of the
Executive; and that the President arrogated unto himself the
power of appropriation vested in Congress because NBC No.
541 authorized the use of the funds under the DAP for PAPs not
considered in the 2012 budget.
Finally, the petitioners insist that the DAP was repugnant to the
principle of public accountability enshrined in the
Constitution,204 because the legislators relinquished the power
of appropriation to the Executive, and exhibited a reluctance to
inquire into the legality of the DAP.
The OSG counters the challenges, stating that the supposed
discrimination in the release of funds under the DAP could be
raised only by the affected Members of Congress themselves,
and if the challenge based on the violation of the Equal
Protection Clause was really against the constitutionality of the
DAP, the arguments of the petitioners should be directed to the
entitlement of the legislators to the funds, not to the
proposition that all of the legislators should have been given
such entitlement.
The challenge based on the contravention of the Equal
Protection Clause, which focuses on the release of funds under
the DAP to legislators, lacks factual and legal basis. The
allegations about Senators and Congressmen being unaware of
the existence and implementation of the DAP, and about some
of them having refused to accept such funds were unsupported
with relevant data. Also, the claim that the Executive
discriminated against some legislators on the ground alone of
their receiving less than the others could not of itself warrant a
finding of contravention of the Equal Protection Clause. The
denial of equal protection of any law should be an issue to be
raised only by parties who supposedly suffer it, and, in these
cases, such parties would be the few legislators claimed to have
been discriminated against in the releases of funds under the
DAP. The reason for the requirement is that only such affected
legislators could properly and fully bring to the fore when and
how the denial of equal protection occurred, and explain why
there was a denial in their situation. The requirement was not
met here. Consequently, the Court was not put in the position
to determine if there was a denial of equal protection. To have
the Court do so despite the inadequacy of the showing of
factual and legal support would be to compel it to speculate,
and the outcome would not do justice to those for whose
supposed benefit the claim of denial of equal protection has
been made.
The argument that the release of funds under the DAP
effectively stayed the hands of the legislators from conducting
congressional inquiries into the legality and propriety of the
DAP is speculative. That deficiency eliminated any need to
consider and resolve the argument, for it is fundamental that
speculation would not support any proper judicial
determination of an issue simply because nothing concrete can
thereby be gained. In order to sustain their constitutional
challenges against official acts of the Government, the
petitioners must discharge the basic burden of proving that the
constitutional infirmities actually existed.205 Simply put,
guesswork and speculation cannot overcome the presumption
of the constitutionality of the assailed executive act.
We do not need to discuss whether or not the DAP and its
implementation through the various circulars and memoranda
of the DBM transgressed the system of checks and balances in
place in our constitutional system. Our earlier expositions on
the DAP and its implementing issuances infringing the doctrine
of separation of powers effectively addressed this particular
concern. Anent the principle of public accountability being
transgressed because the adoption and implementation of the
DAP constituted an assumption by the Executive of Congress’
power of appropriation, we have already held that the DAP and
its implementing issuances were policies and acts that the
Executive could properly adopt and do in the execution of the
GAAs to the extent that they sought to implement strategies to
ramp up or accelerate the economy of the country.
6.
Doctrine of operative fact was applicable
After declaring the DAP and its implementing issuances
constitutionally infirm, we must now deal with the
consequences of the declaration.
Article 7 of the Civil Code provides:
Article 7. Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by disuse, or
custom or practice to the contrary.
When the courts declared a law to be inconsistent with the
Constitution, the former shall be void and the latter shall
govern. Administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws or the
Constitution.
A legislative or executive act that is declared void for being
unconstitutional cannot give rise to any right or
obligation.206 However, the generality of the rule makes us
ponder whether rigidly applying the rule may at times be
impracticable or wasteful. Should we not recognize the need to
except from the rigid application of the rule the instances in
which the void law or executive act produced an almost
irreversible result?
The need is answered by the doctrine of operative fact. The
doctrine, definitely not a novel one, has been exhaustively
explained in De Agbayani v. Philippine National Bank:207
The decision now on appeal reflects the orthodox view that an
unconstitutional act, for that matter an executive order or a
municipal ordinance likewise suffering from that infirmity,
cannot be the source of any legal rights or duties. Nor can it
justify any official act taken under it. Its repugnancy to the
fundamental law once judicially declared results in its being to
all intents and purposes a mere scrap of paper. As the new Civil
Code puts it: ‘When the courts declare a law to be inconsistent
with the Constitution, the former shall be void and the latter
shall govern.’ Administrative or executive acts, orders and
regulations shall be valid only when they are not contrary to the
laws of the Constitution. It is understandable why it should be
so, the Constitution being supreme and paramount. Any
legislative or executive act contrary to its terms cannot survive.
Such a view has support in logic and possesses the merit of
simplicity. It may not however be sufficiently realistic. It does
not admit of doubt that prior to the declaration of nullity such
challenged legislative or executive act must have been in force
and had to be complied with. This is so as until after the
judiciary, in an appropriate case, declares its invalidity, it is
entitled to obedience and respect. Parties may have acted
under it and may have changed their positions. What could be
more fitting than that in a subsequent litigation regard be had
to what has been done while such legislative or executive act
was in operation and presumed to be valid in all respects. It is
now accepted as a doctrine that prior to its being nullified, its
existence as a fact must be reckoned with. This is merely to
reflect awareness that precisely because the judiciary is the
governmental organ which has the final say on whether or not a
legislative or executive measure is valid, a period of time may
have elapsed before it can exercise the power of judicial review
that may lead to a declaration of nullity. It would be to deprive
the law of its quality of fairness and justice then, if there be no
recognition of what had transpired prior to such adjudication.
In the language of an American Supreme Court decision: ‘The
actual existence of a statute, prior to such a determination [of
unconstitutionality], 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 relations, individual
and corporate, and particular conduct, private and official.’"
The doctrine of operative fact recognizes the existence of the
law or executive act prior to the determination of its
unconstitutionality as an operative fact that produced
consequences that cannot always be erased, ignored or
disregarded. In short, it nullifies the void law or executive act
but sustains its effects. It provides an exception to the general
rule that a void or unconstitutional law produces no
effect.208 But its use must be subjected to great scrutiny and
circumspection, and it cannot be invoked to validate an
unconstitutional law or executive act, but is resorted to only as
a matter of equity and fair play.209 It applies only to cases where
extraordinary circumstances exist, and only when the
extraordinary circumstances have met the stringent conditions
that will permit its application.
We find the doctrine of operative fact applicable to the
adoption and implementation of the DAP. Its application to the
DAP proceeds from equity and fair play. The consequences
resulting from the DAP and its related issuances could not be
ignored or could no longer be undone. To be clear, the doctrine
of operative fact extends to a void or unconstitutional executive
act. The term executive act is broad enough to include any and
all acts of the Executive, including those that are quasi
legislative and quasi-judicial in nature. The Court held so in
Hacienda Luisita, Inc. v. Presidential Agrarian Reform Council:210
Nonetheless, the minority is of the persistent view that the
applicability of the operative fact doctrine should be limited to
statutes and rules and regulations issued by the executive
department that are accorded the same status as that of a
statute or those which are quasi-legislative in nature. Thus, the
minority concludes that the phrase ‘executive act’ used in the
case of De Agbayani v. Philippine National Bank refers only to
acts, orders, and rules and regulations that have the force and
effect of law. The minority also made mention of the Concurring
Opinion of Justice Enrique Fernando in Municipality of
Malabang v. Benito, where it was supposedly made explicit that
the operative fact doctrine applies to executive acts, which are
ultimately quasi-legislative in nature.
We disagree. For one, neither the De Agbayani case nor the
Municipality of Malabang case elaborates what ‘executive act’
mean. Moreover, while orders, rules and regulations issued by
the President or the executive branch have fixed definitions and
meaning in the Administrative Code and jurisprudence, the
phrase ‘executive act’ does not have such specific definition
under existing laws. It should be noted that in the cases cited by
the minority, nowhere can it be found that the term ‘executive
act’ is confined to the foregoing. Contrarily, the term ‘executive
act’ is broad enough to encompass decisions of administrative
bodies and agencies under the executive department which are
subsequently revoked by the agency in question or nullified by
the Court.
A case in point is the concurrent appointment of Magdangal B.
Elma (Elma) as Chairman of the Presidential Commission on
Good Government (PCGG) and as Chief Presidential Legal
Counsel (CPLC) which was declared unconstitutional by this
Court in Public Interest Center, Inc. v. Elma. In said case, this
Court ruled that the concurrent appointment of Elma to these
offices is in violation of Section 7, par. 2, Article IX-B of the 1987
Constitution, since these are incompatible offices. Notably, the
appointment of Elma as Chairman of the PCGG and as CPLC is,
without a question, an executive act. Prior to the declaration of
unconstitutionality of the said executive act, certain acts or
transactions were made in good faith and in reliance of the
appointment of Elma which cannot just be set aside or
invalidated by its subsequent invalidation.
In Tan v. Barrios, this Court, in applying the operative fact
doctrine, held that despite the invalidity of the jurisdiction of
the military courts over civilians, certain operative facts must be
acknowledged to have existed so as not to trample upon the
rights of the accused therein. Relevant thereto, in Olaguer v.
Military Commission No. 34, it was ruled that ‘military tribunals
pertain to the Executive Department of the Government and
are simply instrumentalities of the executive power, provided
by the legislature for the President as Commander-in-Chief to
aid him in properly commanding the army and navy and
enforcing discipline therein, and utilized under his orders or
those of his authorized military representatives.’ Evidently, the
operative fact doctrine is not confined to statutes and rules and
regulations issued by the executive department that are
accorded the same status as that of a statute or those which are
quasi-legislative in nature.
Even assuming that De Agbayani initially applied the operative
fact doctrine only to executive issuances like orders and rules
and regulations, said principle can nonetheless be applied, by
analogy, to decisions made by the President or the agencies
under the executive department. This doctrine, in the interest
of justice and equity, can be applied liberally and in a broad
sense to encompass said decisions of the executive branch. In
keeping with the demands of equity, the Court can apply the
operative fact doctrine to acts and consequences that resulted
from the reliance not only on a law or executive act which is
quasi-legislative in nature but also on decisions or orders of the
executive branch which were later nullified. This Court is not
unmindful that such acts and consequences must be recognized
in the higher interest of justice, equity and fairness.
Significantly, a decision made by the President or the
administrative agencies has to be complied with because it has
the force and effect of law, springing from the powers of the
President under the Constitution and existing laws. Prior to the
nullification or recall of said decision, it may have produced acts
and consequences in conformity to and in reliance of said
decision, which must be respected. It is on this score that the
operative fact doctrine should be applied to acts and
consequences that resulted from the implementation of the
PARC Resolution approving the SDP of HLI. (Bold underscoring
supplied for emphasis) In Commissioner of Internal Revenue v.
San Roque Power Corporation,211 the Court likewise declared
that "for the operative fact doctrine to apply, there must be a
‘legislative or executive measure,’ meaning a law or executive
issuance." Thus, the Court opined there that the operative fact
doctrine did not apply to a mere administrative practice of the
Bureau of Internal Revenue, viz:
Under Section 246, taxpayers may rely upon a rule or ruling
issued by the Commissioner from the time the rule or ruling is
issued up to its reversal by the Commissioner or this Court. The
reversal is not given retroactive effect. This, in essence, is the
doctrine of operative fact. There must, however, be a rule or
ruling issued by the Commissioner that is relied upon by the
taxpayer in good faith. A mere administrative practice, not
formalized into a rule or ruling, will not suffice because such a
mere administrative practice may not be uniformly and
consistently applied. An administrative practice, if not
formalized as a rule or ruling, will not be known to the general
public and can be availed of only by those with informal
contacts with the government agency.
It is clear from the foregoing that the adoption and the
implementation of the DAP and its related issuances were
executive acts. The DAP itself, as a policy, transcended a merely
administrative practice especially after the Executive, through
the DBM, implemented it by issuing various memoranda and
circulars. The pooling of savings pursuant to the DAP from the
allotments made available to the different agencies and
departments was consistently applied throughout the entire
Executive. With the Executive, through the DBM, being in
charge of the third phase of the budget cycle – the budget
execution phase, the President could legitimately adopt a policy
like the DAP by virtue of his primary responsibility as the Chief
Executive of directing the national economy towards growth
and development. This is simply because savings could and
should be determined only during the budget execution phase.
As already mentioned, the implementation of the DAP resulted
into the use of savings pooled by the Executive to finance the
PAPs that were not covered in the GAA, or that did not have
proper appropriation covers, as well as to augment items
pertaining to other departments of the Government in clear
violation of the Constitution. To declare the implementation of
the DAP unconstitutional without recognizing that its prior
implementation constituted an operative fact that produced
consequences in the real as well as juristic worlds of the
Government and the Nation is to be impractical and unfair.
Unless the doctrine is held to apply, the Executive as the
disburser and the offices under it and elsewhere as the
recipients could be required to undo everything that they had
implemented in good faith under the DAP. That scenario would
be enormously burdensome for the Government. Equity
alleviates such burden.
The other side of the coin is that it has been adequately shown
as to be beyond debate that the implementation of the DAP
yielded undeniably positive results that enhanced the economic
welfare of the country. To count the positive results may be
impossible, but the visible ones, like public infrastructure, could
easily include roads, bridges, homes for the homeless, hospitals,
classrooms and the like. Not to apply the doctrine of operative
fact to the DAP could literally cause the physical undoing of such
worthy results by destruction, and would result in most
undesirable wastefulness. Nonetheless, as Justice Brion has
pointed out during the deliberations, the doctrine of operative
fact does not always apply, and is not always the consequence
of every declaration of constitutional invalidity. It can be
invoked only in situations where the nullification of the effects
of what used to be a valid law would result in inequity and
injustice;212 but where no such result would ensue, the general
rule that an unconstitutional law is totally ineffective should
apply.
In that context, as Justice Brion has clarified, the doctrine of
operative fact can apply only to the PAPs that can no longer be
undone, and whose beneficiaries relied in good faith on the
validity of the DAP, but cannot apply to the authors, proponents
and implementors of the DAP, unless there are concrete
findings of good faith in their favor by the proper tribunals
determining their criminal, civil, administrative and other
liabilities.
WHEREFORE, the Court PARTIALLY GRANTS the petitions for
certiorari and prohibition; and DECLARES the following acts and
practices under the Disbursement Acceleration Program,
National Budget Circular No. 541 and related executive
issuances UNCONSTITUTIONAL for being in violation of Section
25(5), Article VI of the 1987 Constitution and the doctrine of
separation of powers, namely:
(a) The withdrawal of unobligated allotments from the
implementing agencies, and the declaration of the
withdrawn unobligated allotments and unreleased
appropriations as savings prior to the end of the fiscal
year and without complying with the statutory
definition of savings contained in the General
Appropriations Acts;
(b) The cross-border transfers of the savings of the
Executive to augment the appropriations of other
offices outside the Executive; and
(c) The funding of projects, activities and programs that
were not covered by any appropriation in the General
Appropriations Act.
The Court further DECLARES VOID the use of unprogrammed
funds despite the absence of a certification by the National
Treasurer that the revenue collections exceeded the revenue
targets for non-compliance with the conditions provided in the
relevant General Appropriations Acts. SO ORDERED.
G.R. No. 100481 January 22, 1997
PHILIPPINE INTERISLAND SHIPPING ASSOCIATION OF THE
PHILIPPINES, CONFERENCE OF INTERISLAND SHIPOWNERS
AND OPERATORS, UNITED PETROLEUM TANKER OPERATORS
ASSOCIATION OF THE PHILIPPINES, LIGHTERAGE ASSOCIATION
OF THE PHILIPPINES and PILOTAGE INTEGRATED SERVICES
CORPORATION, petitioners,
vs.
COURT OF APPEALS, UNITED HARBOR PILOTS' ASSOCIATION
OF THE PHILIPPINES, INC. and MANILA PILOTS'
ASSOCIATION, respondents.
MENDOZA, J.:
Private respondent United Harbor Pilots' Association of the
Philippines, Inc. (UHPAP) is the umbrella organization of various
groups rendering pilotage service in different ports of the
Philippines. The service consists of navigating a vessel from a
specific point, usually about two (2) miles off shore, to an
assigned area at the pier and vice versa. When a vessel arrives,
a harbor pilot takes over the ship from its captain to maneuver
it to a berth in the port, and when it departs, the harbor pilot
also maneuvers it up to a specific point off shore. The setup is
required by the fact that each port has peculiar topography with
which a harbor pilot is presumed to be more familiar than a ship
captain.
The Philippine Ports Authority (PPA) is the government agency
which regulates pilotage. Pursuant to Presidential Decree No.
857, it has the power "to supervise, control, regulate . . . such
services as are necessary in the ports vested in, or belonging to
the Authority" 1 and to "control, regulate and supervise pilotage
and the conduct of pilots in any Port District." 2 It also has the
power "to impose, fix, prescribe, increase or decrease such
rates, charges or fees. . . for the services rendered by the
Authority or by any private organization within a Port District." 3
These cases arose out of the efforts of harbor pilots to secure
enforcement of Executive Order No. 1088, which fixes the rates
of pilotage service, and the equally determined efforts of the
PPA and its officials, the herein petitioners, to block
enforcement of the executive order, even as they promulgated
their own orders which in the beginning fixed lower rates of
pilotage and later left the matter to self determination by
parties to a pilotage contract.
I. THE FACTS
G.R. No. 103716
On February 3, 1986, shortly before the presidential elections,
President Ferdinand E. Marcos, responding to the clamor of
harbor pilots for an increase in pilotage rates, issued Executive
Order No. 1088, PROVIDING FOR UNIFORM AND MODIFIED
RATES FOR PILOTAGE SERVICES RENDERED TO FOREIGN AND
COASTWISE VESSELS IN ALL PRIVATE AND PUBLIC PORTS. The
executive order increased substantially the rates of the existing
pilotage fees previously fixed by the PPA.
However, the PPA refused to enforce the executive order on the
ground that it had been drawn hastily and without prior
consultation: that its enforcement would create disorder in the
ports as the operators and owners of the maritime vessels had
expressed opposition to its implementation; and that the
increase in pilotage, as mandated by it, was exorbitant and
detrimental to port operations. 4
The UHPAP then announced its intention to implement E.O. No.
1088 effective November 16, 1986. This in turn drew a warning
from the PPA that disciplinary sanctions would be applied to
those who would charge rates under E.O. No. 1088. The PPA
instead issued Memorandum Circular No. 43-86, fixing pilotage
fees at rates lower than those provided in E.O. No. 1088.
Consequently, the UHPAP filed on January 7, 1987 a complaint
for injunction with the Regional Trial Court of Manila, against
the then Minister of Transportation and Communications,
Hernando Perez, and PPA General Manager, Primitivo S. Soils,
Jr. It sought a writ of preliminary mandatory injunction for the
immediate implementation of E.O. No. 1088, as well as a
temporary restraining order to stop PPA officials from imposing
disciplinary sanctions against UHPAP members charging rates in
accordance with E.O. No. 1088.
The case, docketed as Civil Case No. 87-38913, was raffled to
Branch 28 of the Regional Trial Court of Manila which issued a
temporary restraining order, enjoining the PPA from
threatening the UHPAP, its officers and its members with
suspension and other disciplinary action for collecting pilotage
fees pursuant to E.O. No. 1088.
On March 16, 1987, the Chamber of Maritime Industries of the
Philippines, William Lines, Inc., Loadstar Shipping Co., Inc. and
Delsen Transport Lines, Inc., after obtaining leave, filed a joint
answer in intervention.
On February 26, 1988, while the case was pending, the PPA
issued Administrative Order No. 02-88, entitled IMPLEMENTING
GUIDELINES ON OPEN PILOTAGE SERVICE. The PPA announced
in its order that it was leaving to the contracting parties, i.e., the
shipping lines and the pilots, the fixing of mutually acceptable
rates for pilotage services, thus abandoning the rates fixed by it
(PPA) under Memorandum Circular No. 43-86, as well as those
provided in E.O. No. 1088. The administrative order provided:
Sec. 3. Terms/Conditions on Pilotage Service. —
The shipping line or vessel's
agent/representative and the harbor pilot/firm
chosen by the former shall agree between
themselves, among others, on what pilotage
service shall be performed, the use of tugs and
their rates, taking into consideration the
circumstances stated in Section 12 of PPA AO
No. 03-85, and such other conditions designed
to ensure the safe movement of the vessel in
pilotage areas/grounds.
The PPA then moved to dismiss the case, contending that the
issuance of its order had rendered the case moot and academic
and that consequently E.O. No. 1088 had ceased to be effective.
The UHPAP opposed the motion. Together with the Manila
Pilots' Association (MPA), it filed on May 25, 1988 a petition
for certiorari and prohibition in the RTC-Manila, questioning the
validity of A.O. No. 02-88. This petition was docketed as Civil
Case No. 88-44726 (United Harbor Pilots' Association and
Manila Pilots' Association v. Hon. Rainerio Reyes, as Acting
Secretary of the Department of Transportation and
Communications and Chairman of the Philippine Ports Authority
(PPA) and Maximo Dumlao, Jr., as General Manager of the
Philippine Ports Authority (PPA), et al.) and raffled to Branch 2
of RTC-Manila. The factual antecedents of this case are
discussed in G.R. No. 100481 below.
Meanwhile, in Civil Case 87-38913, the court, without resolving
the motion to dismiss filed by the PPA, rendered a
decision 5 holding that A.O. No. 02-88 did not render the case
moot and academic and that the PPA was under obligation to
comply with E.O. No. 1088 because the order had the force of
law which the PPA could not repeal.
The then Transportation Minister Hernando Perez and the PPA
filed a petition for review. The petition was filed in this Court
which later referred the case to the Court of Appeals where it
was docketed as CA G.R. SP. No. 18072. On the other hand the
intervenors appealed to the Court of Appeals where this case
was docketed as CA G.R. No. 21590. The two cases were then
consolidated.
In a decision rendered on October 4, 1991, the Twelfth
Division 6 of the Court of Appeals affirmed the decision of the
trial court, by dismissing CA G.R. No. 21590 and denying CA G.R.
SP. No. 18072. Hence, this petition by the Secretary of
Transportation and Communications and the PPA. The
intervenor shipping lines did not appeal.
G.R. No. 100481
Meanwhile, in a petition for certiorari filed before RTC-Manila,
Branch 2 (Civil Case No. 88-44726), the UHPAP and the MPA
sought the annulment of A.O. No. 02-88. which in pertinent
parts provided:
Sec. 1. Statement of Policy. — It is hereby
declared that the provision of pilotage in
ports/harbors/areas defined as compulsory in
Section 8 of PPA Administrative Order No. 03-
85, entitled, "Rules and Regulations Governing
Pilotage Services, the Conduct of Pilots and
Pilotage Fees in Philippine Ports" shall be open
to all licensed harbor pilots/pilotage
firms/associations appointed/accredited by this
authority to perform pilotage service.
Sec. 2. Persons Authorized to Render Pilotage.
— The following individuals, persons or groups
shall be appointed/accredited by this Authority
to provide pilotage service:
a. Harbor Pilots of the present Pilotage
Associations of the different pilotage districts in
the Philippines. Their probationary training as
required under Section 31 of PPA AO No. 03-85
shall be undertaken by any member of said
Association.
b. Members/employees of any
partnership/corporation or association,
including Filipino shipmasters/ captains of
vessel (domestic/foreign) of Philippine Registry
and individuals who meet the minimum
qualifications and comply with the
requirements prescribed in Sec. 29 of PPA AO
No. 03-85, aforestated, and who are appointed
by said firm or association and accredited as
harbor pilots by this authority. New Harbor
Pilots who wish to be appointed/accredited by
PPA under the open pilotage system either as
an individual pilot or as a member of any
Harbor Pilot partnership/association shall be
required to undergo a practical examination, in
addition to the written examination given by
the Philippine Coast Guard, prior to their
appointment/accreditation by this Authority.
The UHPAP and MPA, as petitioners below, contended (1) that
A.O. No. 02-88 was issued without the benefit of a public
hearing; (2) that E.O. No. 1088 had not been repealed by any
other Executive Order or Presidential Decree and, therefore,
should be given effect; and (3) that A.O. No. 02-88 contravened
P.D. No. 857.
On August 21, 1989, the Philippine Interisland Shipping
Association, Conference of Interisland Shipowners and
Operators, United Petroleum Tanker Operators of the
Philippines, Lighterage Association of the Philippines, and
Pilotage Integrated Services Corp., were allowed to intervene.
On September 8, 1989, a writ of preliminary injunction was
issued by the court, enjoining the PPA from implementing A.O.
No. 02-88 and, on October 26, 1989, judgment was rendered in
favor of the petitioners therein. The dispositive portion of the
court's decision 7 reads:
WHEREFORE, for all of the foregoing, the petition is hereby
granted.
1. Respondents are hereby declared to have
acted in excess of jurisdiction and with grave
abuse of discretion amounting to lack of
jurisdiction in approving Resolution No. 860 and
in enacting Philippine Ports Authority
Administrative Order No. 02-88, the subject of
which is "Implementing Guidelines on Open
Pilotage Service";
 2. Philippine Ports Authority Administrative
Order No. 02-88 is declared null and void;
3. The preliminary injunction issued on
September 8, 1989 is made permanent; and
4. Without costs.
SO ORDERED.
Respondents and the intervenors below filed a joint petition
for certiorari in the Court of Appeals (CA G.R. SP No. 19570),
assailing the decision of the trial court. But their petition was
dismissed for lack of jurisdiction on the ground that the issue
raised was purely legal.
The parties separately filed petitions for review before this
Court. The first one, by the PPA and its officers, was docketed as
G.R. No. 100109 (Hon. Pete Nicomedes Prado, Philippine Ports
Authority and Commodore Rogelio Dayan v. United Harbor
Pilots' Association of the Philippines and Manila Pilots'
Association), while the second one, by the intervenors, was
docketed as G.R. No. 100481 (Philippine Interisland Shipping
Association of the Philippines, Conference of Interisland Ship
Owners and Operators, United Petroleum Tanker Operators
Association of the Philippines, Inc. v. The Court of Appeals.
United Harbor Pilots' Association of the Philippines and Manila
Pilots' Association.)
The petition filed by the government in G.R. No. 100109 was
dismissed for failure of petitioners to show that the Court of
Appeals committed a reversible error. 8 On the other hand, the
petition of the intervenors in G.R. No. 100481 was given due
course.
G.R. No. 107720
Following the denial of its petition in G.R. No. 100109, the PPA
issued on July 31, 1992, Administrative Order No. 05-92. placing
harbor pilots under the control of the PPA with respect to the
scheduling and assignment of service of vessels. The PPA cited
as justification "pilotage delays . . . under the set-up where
private respondents (UHPAP & MPA) assign the pilots.
Intentionally or otherwise, several vessels do not receive the
pilotage service promptly, causing them operational disruptions
and additional expenses/costs." 9
Private respondents UHPAP and MPA viewed the matter
differently. On October 28, 1992, they asked the RTC-Manila,
Branch 2 which heard and decided Civil Case No. 88-44726 to
cite PPA officials in contempt of court. On the same day, the
trial court issued an order restraining the herein petitioners
from implementing Administrative Order No. 05-92. However,
the PPA proceeded to implement its order, prompting the
UHPAP and MPA to move again to cite petitioners in contempt,
even as they questioned the validity of A.O. No. 05-92.
Accordingly the trial court issued another order on November 4,
1992, reiterating its previous order of October 28, 1992 to
petitioners to refrain from implementing A.O. No. 05-92
pending resolution of the petitions.
Making a special appearance, petitioners questioned the
jurisdiction of the court and moved for the dismissal of the
petitions for contempt. Allegedly to prevent the disruption of
pilotage services, petitioners created a special team of reserve
pilots to take over the pilotage service in the event members of
UHPAP/MPA refused to render pilotage services.
For the third time respondents moved to cite petitioners in
contempt of court. Again petitioners questioned the court's
jurisdiction and manifested that they were adopting their
previous motion to dismiss petitions for contempt filed against
them.
On November 17, 1992, the trial court denied the petitioners'
motion and set the contempt petitions for hearing on
November 19, 1992. Hence, this petition, which was docketed
as G.R. No. 107720 (Hon. Jesus B. Garcia, Jr. in his capacity as
Secretary of Transportation and Communications and Chairman
of the Philippine Ports Authority, Commodore Rogelio A. Dayan,
in his capacity as General Manager of the Philippine Ports
Authority and Simeon T. Silva, Jr., in his capacity as the South
Harbor Manager, Philippine Ports Authority v. Hon. Napoleon
Flojo, in his capacity as the Presiding Judge of Branch 2, RTC,
Manila, UHPAP and MPA).
Pending resolution of this case, the Court ordered the parties to
maintain the status quo as of October 31, 1992.
II. THE ISSUES AND THEIR DISPOSITION
The issues raised are:
I. WHETHER OR NOT RESPONDENT COURT OF APPEALS
ERRED IN AFFIRMING THE CHALLENGED DECISION OF
RTC-MANILA, BRANCH 41, WHICH RULED THAT:
(A) CIVIL CASE NO. 87-38913 HAS NOT BECOME
MOOT AND ACADEMIC WITH THE ISSUANCE OF
ADMINISTRATIVE ORDER NO. 02-88; AND
(B) HEREIN PETITIONERS ARE BOUND TO
COMPLY WITH E.O. NO. 1088;
II. WHETHER OR NOT THE COURT OF APPEALS
COMMITTED REVERSIBLE ERROR IN DISMISSING CA G.R.
SP. NO. 19570 FOR LACK OF JURISDICTION?
III. WHETHER OR NOT RESPONDENT JUDGE NAPOLEON
FLOJO COMMITTED GRAVE ABUSE OF DISCRETION IN
ASSUMING JURISDICTION OVER THE PETITIONS FOR
CONTEMPT FILED BY PRIVATE RESPONDENTS AS A
RESULT OF THE ISSUANCE OF A.O. NO. 05-92?
These issues will be discussed in seriatim.
 A. Whether Executive Order No. 1088 is Valid and
Petitioners are Bound to Obey it
(G.R. Nos. 103 716-17)
Executive Order No. 1088 reads:
EXECUTIVE ORDER No. 1088
PROVIDING FOR UNIFORM AND MODIFIED RATES FOR
PILOTAGE SERVICES RENDERED TO FOREIGN AND COASTWISE
VESSELS IN ALL PRIVATE OR PUBLIC PHILIPPINE PORTS.
WHEREAS, the United Harbor Pilots' Association of the
Philippines has clamored for the rationalization of pilotage
service charges, through the imposition of uniform and adjusted
rates for foreign and coastwise vessels in all Philippine ports,
whether public or private;
WHEREAS, the plea of the Association has been echoed by a
great number of Members of Parliament and other persons and
groups;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the
Constitution and by law, do hereby direct and order:
Sec. 1. The following shall be the rate of pilotage fees or charges
based on tonnage for services rendered to both foreign and
coastwise vessels;
For Foreign Vessels Rate in US $
or its Peso
Equivalent
Less than 500GT $ 30.00
500GT to 2,500GT 43.33
2,500GT to 5,000GT 71.33
5,000GT to 10,000GT 133.67
10,000GT to 15,000GT 181.67
15,000GT to 20,000GT 247.00
20,000GT to 30,000GT 300.00
30,000GT to 40,000GT 416.67
40,000GT to 60,000GT 483.33
60,000GT to 80,000GT 550.00
80,000GT to 100,000GT 616.67
100,000GT to 120,000GT 666.67
120,000GT to 130,000GT 716.67
130,000GT to 140,000GT 766.67
Over 140,000 gross tonnage $0.05 or its peso equivalent
every excess tonnage. Rate for docking and undocking
anchorage, conduction and shifting other related
special services is equal to 100%. Pilotage services shall
be compulsory in government and private wharves or
piers,
For Coastwise Vessels: Regular
100 and under 500 gross tons P41.70
500 and under 600 gross tons 55.60
600 and under 1,000 gross tons 69.60
1,000 and under 3,000 gross tons 139.20
3,000 and under 5,000 gross tons 300.00
5,000 and over gross tons
Sec. 2. With respect to foreign vessels, payment of
pilotage services shall be made in dollars or in pesos at
the prevailing exchange rate.
Sec. 3. All orders, letters of instruction, rules,
regulations and other issuances inconsistent with this
Executive Order are hereby repealed or amended
accordingly.
Sec. 4. This Executive Order shall take effect
immediately.
Done in the City of Manila, this 3rd day of February, in
the year of our Lord, nineteen hundred and eighty-six.
By the President:
(Sgd.) FERDINAND E. MARCOS
President of the Philippines
(Sgd.) JUAN C. TUVERA
Presidential Executive Assistant
Petitioners contend that E.O. No. 1088 was merely an
administrative issuance of then President Ferdinand E. Marcos
and, as such, it could be superseded by an order of the PPA.
They argue that to consider E.O. No. 1088 a statute would be to
deprive the PPA of its power under its charter to fix pilotage
rates.
The contention has no merit. The fixing of rates is essentially a
legislative power. 10 Indeed, the great battle over the validity of
the exercise of this power by administrative agencies was
fought in the 1920s on the issue of undue delegation precisely
because the power delegated was legislative. The growing
complexity of modern society, the multiplication of the subjects
of governmental regulations and the increased difficulty of
administering the laws made the creation
of administrative agencies and the delegation to them of
legislative power necessary. 11
There is no basis for petitioners' argument that rate fixing is
merely an exercise of administrative power, that if President
Marcos had power to revise the rates previously fixed by the
PPA through the issuance of E.O. No. 1088, the PPA could in
turn revise those fixed by the President, as the PPA actually did
in A.O. No. 43-86, which fixed lower rates of pilotage fees, and
even entirely left the fees to be paid for pilotage to the
agreement of the parties to a contract. The orders previously
issued by the PPA were in the nature of subordinate legislation,
promulgated by it in the exercise of delegated power. As such
these could only be amended or revised by law, as the President
did by E.O. No. 1088.
It is not an answer to say that E.O. No. 1088 should not be
considered a statute because that would imply the withdrawal
of power from the PPA. What determines whether an act is a
law or an administrative issuance is not its form but its nature.
Here, as we have already said, the power to fix the rates of
charges for services, including pilotage service, has always been
regarded as legislative in character.
Nor is there any doubt of the power of the then President to fix
rates. On February 3, 1986, when he issued E.O. No. 1088,
President Marcos was authorized under Amendment No. 6 of
the 1973 Constitution to exercise legislative power, just as he
was under the original 1973 Constitution, when he issued P.D.
No. 857 which created the PPA, endowing it with the power to
regulate pilotage service in Philippine ports. Although the
power to fix rates for pilotage had been delegated to the PPA, it
became necessary to rationalize the rates of charges fixed by it
through the imposition of uniform rates. That is what the
President did in promulgating E.O. No. 1088. As the President
could delegate the ratemaking power to the PPA, so could he
exercise it in specific instances without thereby withdrawing the
power vested by P.D. No. 857, §20(a) in the PPA "to impose, fix,
prescribe, increase or decrease such rates, charges or fees . . .
for the services rendered by the Authority or by any private
organization within a Port District."
It is worthy to note that E.O. No. 1088 provides for adjusted
pilotage service rates without withdrawing the power of the
PPA to impose, prescribe, increase or decrease rates, charges or
fees. The reason is because E.O. No. 1088 is not meant simply to
fix new pilotage rates. Its legislative purpose is the
"rationalization of pilotage service charges, through the
imposition of uniform and adjusted rates for foreign and
coastwise vessels in all Philippine ports."
The case presented is similar to the fixing of wages under the
Wage Rationalization Act (R.A. No. 6727) whereby minimum
wages are determined by Congress and provided by law, subject
to revision by Wage Boards should later conditions warrant
their revision. It cannot be denied that Congress may intervene
anytime despite the existence of administrative agencies
entrusted with wage-fixing powers, by virtue of the former's
plenary power of legislation. When Congress does so, the result
is not the withdrawal of the powers delegated to the Wage
Boards but cooperative lawmaking in an area where initiative
and expertise are required. The Court of Appeals is correct in
holding that —
The power of the PPA to fix pilotage rates and
its authority to regulate pilotage still remain
notwithstanding the fact that a schedule for
pilotage fees has already been prescribed by
the questioned executive order. PPA is at liberty
to fix new rates of pilotage subject only to the
limitation that such new rates should not go
below the rates fixed under E.O. 1088. The
rationale behind the limitation is no different
from what has been previously stated. Being a
mere administrative agency, PPA cannot validly
issue orders or regulations that would have the
effect of rendering nugatory the provisions of
the legislative issuance such as those of the
executive order in question.(emphasis supplied)
Petitioner refused to implement E.O. No. 1088 on the ground
that it was issued without notice to the PPA and that it was
nothing but a "political gimmick" resorted to by then President
Marcos. This perception obviously stemmed from the fact that
E.O. No. 1088 was issued shortly before the presidential
elections in 1986.
But lack of notice to the PPA is not proof that the necessary
factual basis for the order was wanting. To the contrary, the
presumption is that the President had before him pertinent
data on which he based the rates prescribed in his order. Nor is
the fact that the order might have been issued to curry favor
with the voters a reason for the PPA to refuse to enforce the
order in question. It is not unusual for lawmakers to have in
mind partisan political consideration in sponsoring legislation.
Yet that is not a ground for invalidating a statute.
Moreover, an inquiry into legislative motivation is not proper
since the only relevant question is whether in issuing it the
President violated constitutional and statutory restrictions on
his power. The PPA did not have any objection to the order
based on constitutional ground. In fact the nearest to a
challenge on constitutional grounds was that mounted not by
the PPA but by the intervenors below which claimed that the
rates fixed in E.O. No. 1088 were exorbitant and unreasonable.
However, both the trial court and the Court of Appeals
overruled the objections and the intervenors apparently
accepted the ruling because they did not appeal further to this
Court.
There is therefore, no legal basis for PPA's intransigence, after
failing to get the new administration of President Aquino to
revoke the order by issuing its own order in the form of A.O. No.
02-88. It is noteworthy that if President Marcos had legislative
power under Amendment No. 6 of the 1973 Constitution 12 so
did President Aquino under the Provisional (Freedom)
Constitution 13 who could, had she thought E.O. No. 1088 to be
a mere "political gimmick," have just as easily revoked her
predecessor's order. It is tempting to ask if the administrative
agency would have shown the same act of defiance of the
President's order had there been no change of administration.
What this Court said in La Perla Cigar and Cigarette Factory
v. Capapas, 14 mutatis mutandis may be applied to the cases at
bar:
Was it within the powers of the then Collector
Ang-angco to refuse to collect the duties that
must be paid? That is the crucial point of
inquiry. We hold that it was not.
Precisely, he had to give the above legal
provisions, quite explicit in character, force and
effect. His obligation was to collect the revenue
 for the government in accordance with existing
legal provisions, executive agreements and
executive orders certainly not excluded. He
would not be living up to his official designation
if he were permitted to act otherwise. He was
not named Collector of Customs for nothing. . . .
. resolved to dismiss the petition for lack of
Certainly, if the President himself were called
upon to execute the laws faithfully, a Collector
of Customs, himself a subordinate executive
official, cannot be considered as exempt in any
wise from such an obligation of fealty. Similarly,
if the President cannot suspend the operation
of any law, it would be presumptuous in the
extreme for one in the position of then
Collector Ang-angco to consider himself as
possessed of such a prerogative. . . .
We conclude that E.O. No. 1088 is a valid statute and that the
PPA is duty bound to comply with its provisions. The PPA may
increase the rates but it may not decrease them below those
mandated by E.O. No. 1088. Finally, the PPA cannot refuse to
implement E.O. No. 1088 or alter it as it did in promulgating
Memorandum Circular No. 43-86. Much less could the PPA
abrogate the rates fixed and leave the fixing of rates for pilotage
service to the contracting parties as it did through A. O. No. 02-
88, §3. Theretofore the policy was one of governmental
regulation of the pilotage business. By leaving the matter to the
determination of the parties, the PPA jettisoned this policy and
changed it to laissez-faire, something which only the legislature,
or whoever is vested with lawmaking authority, could do.
B. Whether the Court of Appeals had Jurisdiction over
the
Appeal of Intervenors from the Decision of the
Trial Court Invalidating Administrative
Order No. 02-88 of the PPA
(G.R. No. 100481)
The Court of Appeals dismissed the joint appeal of the
government and the intervenors from the trial court's decision
in Civil Case No. 88-44726 on the ground that the issues raised
were purely legal questions. 15 The appellate court stated:
After a painstaking review of the records We
jurisdiction.
From the facts, it is clear that the main issue
proffered by the appellant is whether or not the
respondent Philippine Ports Authority could
validly issue rules and regulations adopting the
"open pilotage policy" pursuant to its charter
(P.D. 857).
xxx xxx xxx
It must be noted that while the court a quo had
clearly recognized the intricate legal issue
involved, it nevertheless decided it on the
merits which apparently resolved only the
procedural aspect that justified it in declaring
the questioned order as null and void. While
We recognize the basic requirements of due
process, the same cannot take precedence in
the case at bar in lieu of the fact that the
resolution of the present case is purely a legal
question.
Moreover, it appears that appellants in the
court below had filed a manifestation and
motion waiving their presentation of evidence.
Instead, they opted to submit a comprehensive
memorandum of the case on the ground that
the pivotal issue raised in the petition below is
purely legal in character. (p. 231, Records)
At this juncture, We are at a loss why appellants
had elevated the present action before Us
where at the outset they already noted that the
issue is purely legal.
If in the case of Murillo v. Consul (UDK-9748,
Resolution en banc, March 1, 1990) the
Supreme Court laid down the rule that "if an
appeal by notice of appeal is taken from the
Regional Trial Court to the Court of Appeals,
and in the latter Court, the appellant raised
naught but issues of law, the appeal should be
dismissed for lack of jurisdiction (page 5,
Resolution in Murillo)," then with more reason
where as in the case at bar public-appellants
thru the Office of the Solicitor General in their
memorandum manifested that the controversy
has reference to the pure legal question of the
validity of the questioned administrative order.
Consequently, We have no other recourse but
to dismiss the petition on the strength of these
pronouncements.
As already stated, from this decision, both the government and
the intervenors separately brought petitions for review to this
Court. In G.R. No. 100109, the government's petition was
dismissed for lack of showing that the appellate court
committed reversible error. The dismissal of the government's
petition goes far to sustain the dismissal of the intervenors'
petition in G.R. No. 100481 for the review of the same decision
of the Court of Appeals. After all, the intervenors' petition is
based on substantially the same grounds as those stated in the
government's petition. It is now settled that the dismissal of a
petition for review on certiorari is an adjudication on the merits
of a controversy. 16 Such dismissal can only mean that the
Supreme Court agrees with the findings and conclusions of the
Court of Appeals or that the decision sought to be reviewed is
correct. 17
It is significant to note that the Secretary of Transportation and
Communications and the PPA, petitioners in G.R. No. 100109,
have conceded the finality of the dismissal of their
appeal.18 Thus, the administrative policy, the validity of which
herein petitioners seek to justify by their appeal, has already
been abandoned by the very administrative agency which
adopted it, with the result that the question of validity of A.O.
No. 02-88 is now moot and academic.
C. Whether the Trial Court has Jurisdiction to Hear and
Decide the Contempt Charges
against Petitioners
(G.R. No. 107720)
As already noted, following the dismissal of the government's
appeal in G.R. No. 100109, the PPA abandoned A.O. No. 02-88
which provided for "Open Pilotage System." But it subsequently
promulgated Administrative Order No. 05-92, under which the
PPA assumed the power of scheduling and assigning pilots to
service vessels, allegedly regardless of whether the pilots
assigned are or are not members of the UHPAP and the MPA
which theretofore had been the exclusive agencies rendering
pilotage service in Philippine ports. The UHPAP and the MPA
saw the adoption of this system as a return to the "Open
Pilotage System" and, therefore, a violation of the trial court's
decision invalidating the "Open Pilotage System." They
considered this to be a contempt of the trial court.
Petitioners moved to dismiss the motions for contempt against
them. They contend that even if the motions were filed as
incidents of Civil Case No. 88-44726, the RTC-Manila, Branch 2
did not have jurisdiction to hear them because the main case
was no longer before the court and the fact was that the
contempt citation was not an incident of the case, not even of
its execution, but a new matter raising a new cause of action
which must be litigated in a separate action, even as petitioners
denied they had committed any contumacious act by the
issuance of A.O. No. 05-92.
Private respondents maintained that their petitions were mere We hold that the trial court has jurisdiction to hear the motions
incidents of Civil Case No. 88-44726 and that the trial court has for contempt filed by private respondent, subject to any valid
jurisdiction because in fact this Court had not yet remanded the defense which petitioners may interpose.
case to the court a quo for execution of its decision. Private
respondents complain that petitioners are trying to circumvent III. JUDGMENT
the final and executory decision of the court in Civil Case No. 88-
44726, through the issuance of A.O. No. 05-92. WHEREFORE, the several petitions in these cases are
DISMISSED.
As already noted, however, the decision of the trial court in Civil
Case No. 88-44726 enjoined petitioners from implementing the SO ORDERED.
socalled "Open Pilotage System" embodied in A.O. No. 02-88. If,
as alleged, A.O. No. 05-92 is in substance a reenactment of A.O.
No. 02-88, then there is basis for private respondents'
invocation of the trial court's jurisdiction to punish for
contempt.
Still it is argued that the trial court lost jurisdiction over Civil
Case No. 887426, upon the perfection of their appeal from its
decision. That is indeed true. "The appeal transfers the
proceedings to the appellate court, and this last court becomes
thereby charged with the authority to deal with contempts
committed after perfection of the appeal."19 The trial court
would have jurisdiction only in the event of an attempt to block
execution of its decision and that would be after the remand of
the case to the trial court. 20 Until then the trial court would
have no jurisdiction to deal with alleged contemptuous acts.
The fly in the ointment, however, is that by accepting the
dismissal of their petition for review in G.R. No. 100109,
petitioners rendered execution of the decision of the trial court
superfluous. Any attempt by them, therefore, to disobey the
court's final injunction as embodied in its decision would be
properly subject to punishment for contempt. Petitioners'
contention that private respondents' complaint must be the
subject of a separate action would nullify contempt proceedings
as means of securing obedience to the lawful processes of a
court. Petitioners' theory would reward ingenuity and cunning
in devising orders which substantially are the same as the order
previously prohibited by the court.
G.R. No. L-2044 August 26, 1949
J. ANTONIO ARANETA, petitioner,
vs.
RAFAEL DINGLASAN, Judge of First Instance of Manila, and
JOSE P. BENGZON, Fiscal of City of Manila, respondents.
TUASON, J.:
Three of these cases were consolidated for argument and the
other two were argued separately on other dates. Inasmuch as
all of them present the same fundamental question which, in
our view, is decisive, they will be disposed of jointly. For the
same reason we will pass up the objection to the personality or
sufficiency of interest of the petitioners in case G. R. No. L-3054
and case G. R. No. L-3056 and the question whether prohibition
lies in cases Nos. L-2044 and L-2756. No practical benefit can be
gained from a discussion of the procedural matters since the
decision in the cases wherein the petitioners' cause of action or
the propriety of the procedure followed is not in dispute, will be
controlling authority on the others. Above all, the
transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing
aside, if we must, technicalities of procedure.
(Avelino vs. Cuenco, G. R. No. L-2821.) The petitions challenge
the validity of executive orders of the President avowedly issued
in virtue of Commonwealth Act No. 671. Involved in cases Nos.
L-2044 and L-2756 is Executive Order No. 62, which regulates
rentals for houses and lots for residential buildings. The
petitioner, J. Antonio Araneta, is under prosecution in the Court
of First Instance of Manila for violation of the provisions of this
Executive Order, and prays for the issuance of the writ of
prohibition to the judge and the city fiscal. Involved in case L-
3055 is Executive Order No. 192, which aims to control exports
from the Philippines. In this case, Leon Ma. Guerrero seeks a
writ of mandamus to compel the Administrator of the Sugar
Quota Office and the Commissioner of Customs to permit the
exportation of shoes by the petitioner. Both official refuse to
issue the required export license on the ground that the
exportation of shoes from the Philippines is forbidden by this
Executive Order. Case No. L-3054 relates to Executive Order No.
225, which appropriates funds for the operation of the
Government of the Republic of the Philippines during the period
from July 1, 1949 to June 30, 1950, and for other purposes. The
petitioner Eulogio Rodriguez, Sr., as a tax-payer, an elector, and
president of the Nacionalista Party, applies for a writ of
prohibition to restrain the Treasurer of the Philippines from
disbursing this Executive Order. Affected in case No. L-3056 is
Executive Order No. 226, which appropriates P6,000,000 to
defray the expenses in connection with, and incidental to, the
hold lug of the national elections to be held in November, 1949.
The petitioner, Antonio Barredo, as a citizen, tax-payer and
voter, asks this Court to prevent "the respondents from
disbursing, spending or otherwise disposing of that amount or
any part of it."
Notwithstanding allegations in the petitions assailing the
constitutionally of Act No. 671, the petitioners do not press the
point in their oral argument and memorandum. They rest their
case chiefly on the proposition that the Emergency Powers Act
(Commonwealth Act No. 671) has ceased to have any force and
effect. This is the basic question we have referred to, and it is to
this question that we will presently address ourselves and
devote greater attention. For the purpose of this decision, only,
the constitutionality of Act No. 671 will be taken for granted,
and any dictum or statement herein which may appear contrary
to that hypothesis should be understood as having been made
merely in furtherance of the main thesis.
Act No. 671 in full is as follows:
AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS
A RESULT OF WAR INVOLVING THE PHILIPPINES AND
AUTHORIZING THE PRESIDENT TO PROMULGATE RULES
AND REGULATIONS TO MEET SUCH EMERGENCY.
Be it enacted by the National Assembly of the
Philippines:
SECTION 1. The existence of war between the United
States and other countries of Europe and Asia, which
involves the Philippines, makes it necessary to invest
the President with extraordinary powers in order to
meet the resulting emergency.
"SEC. 2. Pursuant to the provisions of Article VI, section
26, of the Constitution, the President is hereby
authorized, during the existence of the emergency, to
promulgate such rules and regulations as he may deem
necessary to carry out the national policy declared in
section 1 hereof. Accordingly, he is, among other things,
empowered (a) to transfer the seat of the Government
or any of its subdivisions, branches, departments,
offices, agencies or instrumentalities; (b) to reorganize
the Government of the Commonwealth including the
determination of the order of precedence of the heads
of the Executive Department; (c) to create new
subdivisions, branches, departments, agencies or
instrumentalities of government and to abolish any of
those already existing; (d) to continue in force laws and
appropriations which would lapse or otherwise become
inoperative, and to modify or suspend the operation or
application of those of an administrative character; (e)
to impose new taxes or to increase, reduce, suspend or
abolish those in existence; (f) to raise funds through the
issuance of bonds or otherwise, and to authorize the
expenditure of the proceeds thereof; (g) to authorize
the national, provincial, city or municipal governments
to incur in overdrafts for purposes that he may approve;
(h) to declare the suspension of the collection of credits
or the payment of debts; and (i) to exercise such other
powers as he may deem to enable the Government to
fulfill its responsibities and to maintain and enforce the
authority.
SEC. 3. The President of the Philippines shall as soon as
practicable upon the convening of the Congress of the
Philippines report thereto all the rules and regulations
promulgated by him under the powers herein granted.
 SEC. 4. This Act shall take effect upon its approval and
the rules and regulations promulgated hereunder shall
be in force and effect until the Congress of the
Philippines shall otherwise provide.
Section 26 of Article VI of the Constitution provides:
In time of war or other national emergency, the
Congress may by law authorize the President, for a
limited period and subject to such restrictions as it may
prescribe, to promulgate rules and regulations to carry
out a declared national policy.
Commonwealth Act No. 671 does not in term fix the duration of
its effectiveness. The intention of the Act has to be sought for in
its nature, the object to be accomplish, the purpose to be
subserved, and its relation to the Constitution. The
consequences of the various constructions offered will also be
resorted to as additional aid to interpretation. We test a rule by
its results.
Article VI of the Constitution provides that any law passed by
virtue thereof should be "for a limited period." "Limited" has
been defined to mean "restricted; bounded; prescribed;
confined within positive bounds; restrictive in duration, extent
or scope." (Encyclopedia Law Dictionary, 3rd ed., 669; Black's
Law Dictionary, 3rd ed., 1120.) The words "limited period" as
used in the Constitution are beyond question intended to mean
restrictive in duration. Emergency, in order to justify the
delegation of emergency powers, "must be temporary or it can
not be said to be an emergency." (First Trust Joint Stock Land
Bank of Chicago vs. Adolph P. Arp, et al., 120 A. L. R., 937, 938.).
It is to be presumed that Commonwealth Act No. 671 was
approved with this limitation in view. The opposite theory
would make the law repugnant to the Constitution, and is
contrary to the principle that the legislature is deemed to have
full knowledge of the constitutional scope of its powers. The
assertion that new legislation is needed to repeal the act would
not be in harmony with the Constitution either. If a new and
different law were necessary to terminate the delegation, the
period for the delegation, it has been correctly pointed out,
would be unlimited, indefinite, negative and uncertain; "that
which was intended to meet a temporary emergency may
become permanent law," (Peck vs. Fink, 2 Fed. [2d], 912); for
Congress might not enact the repeal, and even if it would, the
repeal might not meet the approval of the President, and the
Congress might not be able to override the veto. Furthermore,
this would create the anomaly that, while Congress might
delegate its powers by simple majority, it might not be able to
recall them except by a two-third vote. In other words, it would
be easier for Congress to delegate its powers than to take them
back. This is not right and is not, and ought not to be, the law.
Corwin, President: Office and Powers, 1948 ed., p. 160, says:
It is generally agreed that the maxim that the legislature
may not delegate its powers signifies at the very least
that the legislature may not abdicate its powers: Yet
how, in view of the scope that legislative delegations
take nowadays, is the line between delegation and
abdication to be maintained? Only, I urge, by rendering
the delegated powers recoverable without the consent
of the delegate; . . . .
Section 4 goes far to settle the legislative intention of this phase
of Act No. 671. Section 4 stipulates that "the rules and
regulations promulgated thereunder shall be in full force and
effect until the Congress of the Philippines shall otherwise
provide." The silence of the law regarding the repeal of the
authority itself, in the face of the express provision for the
repeal of the rules and regulations issued in pursuance of it, a
clear manifestation of the belief held by the National Assembly
that there was no necessity to provide for the former. It would
be strange if having no idea about the time the Emergency
Powers Act was to be effective the National Assemble failed to
make a provision for this termination in the same way that it did
for the termination of the effects and incidents of the
delegation. There would be no point in repealing or annulling
the rules and regulations promulgated under a law if the law
itself was to remain in force, since, in that case, the President
could not only make new rules and regulations but he could
restore the ones already annulled by the legislature.
More anomalous than the exercise of legislative function by the
Executive when Congress is in the unobstructed exercise of its
authority is the fact that there would be two legislative bodies
operating over the same field, legislating concurrently and
simultaneously, mutually nullifying each other's actions. Even if
the emergency powers of the President, as suggested, be
suspended while Congress was in session and be revived after
each adjournment, the anomaly would not be limited. Congress
by a two-third vote could repeal executive orders promulgated
by the President during congressional recess, and the President
in turn could treat in the same manner, between sessions of
Congress, laws enacted by the latter. This is not a fantastic
apprehension; in two instances it materialized. In entire good
faith, and inspired only by the best interests of the country as
they saw them, a former President promulgated an executive
order regulating house rentals after he had vetoed a bill on the
subject enacted by Congress, and the present Chief Executive
issued an executive order on export control after Congress had
refused to approve the measure.
Quiet apart from these anomalies, there is good basis in the
language of Act No. 671 for the inference that the National
Assembly restricted the life of the emergency powers of the
President to the time the Legislature was prevented from
holding sessions due to enemy action or other causes brought
on by the war. Section 3 provides:
The President of the Philippines shall as soon as
practicable upon the convening of the Congress of the
Philippines report thereto all the rules and regulations
promulgated by him under the powers herein granted.
The clear tenor of this provision is that there was to be only one
meeting of Congress at which the President was to give an
account of his trusteeship. The section did not say each
meeting, which it could very well have said if that had been the
intention. If the National Assembly did not think that the report
in section 3 was to be the first and last Congress Act No. 671
would lapsed, what reason could there be for its failure to
provide in appropriate and clear terms for the filing of
subsequent reports? Such reports, if the President was
expected to continue making laws in the forms of rules,
regulations and executive orders, were as important, of as
unimportant, as the initial one.
As a contemporary construction, President Quezon's statement
regarding the duration of Act No. 671 is enlightening and should
carry much weight, considering his part in the passage and in
the carrying out of the law. Mr. Quezon, who called the
National Assembly to a special session, who recommended the
enactment of the Emergency Powers Act, if indeed he was not
its author, and who was the very President to be entrusted with
its execution, stated in his autobiography, "The Good Fight,"
that Act No. 671 was only "for a certain period" and "would
become invalid unless reenacted." These phrases connote
automatical extinction of the law upon the conclusion of a
certain period. Together they denote that a new legislation was
necessary to keep alive (not to repeal) the law after the
expiration of that period. They signify that the same law, not a
different one, had to be repassed if the grant should be
prolonged.
What then was the contemplated period? President Quezon in
the same paragraph of his autobiography furnished part of the
answer. He said he issued the call for a special session of the
National Assembly "when it became evident that we were
completely helpless against air attack, and that it was most
unlikely the Philippine Legislature would hold its next regular
session which was to open on January 1, 1942." (Emphasis
ours.) It can easily be discerned in this statement that the
conferring of enormous powers upon the President was decided
upon with specific view to the inability of the National Assembly
to meet. Indeed no other factor than this inability could have
motivated the delegation of powers so vast as to amount to an
abdication by the National Assembly of its authority. The
enactment and continuation of a law so destructive of the
foundations of democratic institutions could not have been
conceived under any circumstance short of a complete
disruption and dislocation of the normal processes of
government. Anyway, if we are to uphold the constitutionality
of the act on the basis of its duration, we must start with the
premise that it fixed a definite, limited period. As we have
indicated, the period that best comports with constitutional
requirements and limitations, with the general context of the
law and with what we believe to be the main if not the
sole raison d'etre for its enactment, was a period coextensive
with the inability of Congress to function, a period ending with
the conventing of that body.
It is our considered opinion, and we so hold, that
Commonwealth Act No. 671 became inoperative when Congress
met in regular session on May 25, 1946, and that Executive
Orders Nos. 62, 192, 225 and 226 were issued without authority
of law. In setting the session of Congress instead of the first
special session preceded it as the point of expiration of the Act,
we think giving effect to the purpose and intention of the
National Assembly. In a special session, the Congress may
"consider general legislation or only such as he (President) may
designate." (Section 9, Article VI of the Constitution.) In a
regular session, the power Congress to legislate is not
circumscribed except by the limitations imposed by the organic
law.
Having arrived at this conclusion, we are relieved of the
necessity of deciding the question as to which department of
government is authorized to inquire whether the contingency
on which the law is predicated still exists. The right of one or
another department to declare the emergency terminated is
not in issue. As a matter of fact, we have endeavored to find the
will of the National Assembly—call that will, an exercise of the
police power or the war power — and, once ascertained, to
apply it. Of course, the function of interpreting statutes in
proper cases, as in this, will not be denied the courts as their
constitutional prerogative and duty. In so far as it is insinuated
that the Chief Executive has the exclusive authority to say that
war not ended, and may act on the strength of his opinion and
findings in contravention of the law as the courts have
construed it, no legal principle can be found to support the
proposition. There is no pretense that the President has
independent or inherent power to issue such executive orders
as those under review. we take it that the respondents, in
sustaining the validity of these executive orders rely on Act No.
600, Act No. 620, or Act No. 671 of the former Commonwealth
and on no other source. To put it differently, the President's
authority in this connection is purely statutory, in no sense
political or directly derived from the Constitution.
Act No. 671, as we have stressed, ended ex proprio vigore with
the opening of the regular session of Congress on May 25, 1946.
Acts Nos. 600 and 620 contain stronger if not conclusive
indication that they were self-liquidating. By express provision
the rules and regulations to be eventually made in pursuance of
Acts Nos. 600 and 620, respectively approved on August 19,
1940 and June 6, 1941, were to be good only up to the
corresponding dates of adjournment of the following sessions
of the Legislature, "unless sooner amended or repealed by the
National Assembly." The logical deduction to be drawn from this
provision is that in the mind of the lawmakers the idea was
fixed that the Acts themselves would lapse not latter than the
rules and regulations. The design to provide for the automatic
repeal of those rules and regulations necessarily was predicated
on the consciousness of a prior or at best simultaneous repeal
of their source. Were not this the case, there would arise the
curious spectacle, already painted, and easily foreseen, of the
Legislature amending or repealing rules and regulations of the
President while the latter was empowered to keep or return
them into force and to issue new ones independently of the
National Assembly. For the rest, the reasoning heretofore
adduced against the asserted indefinite continuance of the
operation of Act No. 671 equally applies to Acts Nos. 600 and
620.
The other corollary of the opinion we have reached is that the
question whether war, in law or in fact, continues, is irrelevant.
If we were to that actual hostilities between the original
belligerents are still raging, the elusion would not be altered.
After the convening of Congress new legislation had to be
approved if the continuation of the emergency powers, or some
of them, was desired. In the light of the conditions surrounding
the approval of the Emergency Power Act, we are of the opinion
that the "state of total emergency as a result of war" envisaged
in the preamble referred to the impending invasion and
occupation of the Philippines by the enemy and the consequent
total disorganization of the Government, principally the
impossibility for the National Assembly to act. The state of
affairs was one which called for immediate action and with
which the National Assembly would would not be able to cope.
The war itself and its attendant chaos and calamities could not
have necessitated the delegation had the National Assembly
been in a position to operate.
plea that for the good of the Nation, the President should retain
his extraordinary powers as long asturmoil and other ills directly
or indirectly traceable to the late war harass the Philippines.
Upon the foregoing considerations, the petitions will be
granted. In order to avoid any possible disruption and
interruption in the normal operation of the Government, we
have deemed it best to depart in these cases from the ordinary
rule to the period for the effectivity of decisions, and to decree,
as it is hereby decreed, that this decision take effect fifteen days
from the date of the entry of final judgment provided in section
8 of Rule 53 of the Rules of Court in relation to section 2 of Rule
35. No costs will be charged.

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

These observations, though beyond the issue as formulated in

this decision, may, we trust, also serve to answer the vehement
G.R. No. L-6266 February 2, 1953
EULOGIO RODRIGUEZ, SR., ETC., ET AL., petitioners,
vs.
VICENTE GELLA, ETC., ET AL., respondents.
Eulogio Rodriguez, Sr., Lorenzo M. Tañada, Claro M. Recto, Jose
P. Laurel, Jesus Barrera and Leon Ma. Guerrero for petitioner.
Office of the Solicitor General Juan R. Liwag and Solicitor
Martiniano P. Vivo for respondents.
PARAS, C.J.:
As a fitting foreword, it may be recalled that on a previous
occasion, on August 26, 1949 to be exact, this court had already
passed upon the status of Commonwealth Act No. 671,
approved on December 16, 1941, "declaring a state of total
emergency as a result of war involving the Philippines and
authorizing the President to promulgate rules and regulations to
meet such emergency." Five members held that the Act ceased
to be operative in its totality, on May 25, 1946 (when the
Congress convened in special session) according to Chief Justice
Moran. Justice Bengzon, Padilla, Montemayor, Reyes and Torres
in effect concluded that the powers delegated to the President
had been withdrawn as to matters already legislated upon by
the Congress or on which the latter had demonstrated its
readiness or ability to act. Executive Orders No. 62 (dated June
21, 1947) regulating house and lot rentals, No. 192 (dated
December 24, 1948) regulating exports, Nos. 225 and 226
(dated June 15,1949) the first appropriation funds for the
operation of the Government from July 1, 1949 to June 30,
1950, and the second appropriating funds for election expenses
in November 1949, were therefore declared null and void for
having been issued after Act No. 671 had lapsed and/or after
the Congress had enacted legislation on the same subjects.1
More or less the same considerations that influenced our
pronouncement of August 26, 1949 are and should be
controlling in the case now before us, wherein the petitioners
seek to invalidate Executive Orders Nos. 545 and 546 issued on
November 10, 1952, the first appropriating the sum of
P37,850,500 for urgent and essential public works, and the
second setting aside the sum of P11,367,600 for relief in the
provinces and cities visited by typhoons, floods, droughts,
earthquakes, volcanic action and other calamities.
Section 26 of Article VI of the Constitution provides that "in
times of war or other national emergency, the Congress may by
law authorize the President, for a limited period and subject to
such restrictions as it may prescribe, to promulgate rules and
regulations to carry out a declared national policy." Accordingly
the National Assembly passed Commonwealth Act No. 671,
declaring (in section 1) the national policy that "the existence of
war between the United States and other countries of Europe
and Asia, which involves the Philippines makes it necessary to
invest the President with extraordinary powers in order to meet
the resulting emergency," and (in section 2) authorizing the
President, "during the existence of the emergency, to
promulgate such rules and regulations as he may deem
necessary to carry out the national policy declared in section 1."
As the Act was expressly in pursuance of the constitutional
provision, it has to be assumed that the National Assembly
intended it to be only for a limited period. If it be contended
that the Act has not yet been duly repealed, and such step is
necessary to a cessation of the emergency powers delegated to
the President, the result would be obvious unconstitutionality,
since it may never be repealed by the Congress, or if the latter
ever attempts to do so, the President may wield his veto. This
eventuality has in fact taken place when the President
disapproved House Bill No. 727, repealing all Emergency Powers
Acts. The situation will make the Congress and the President or
either as the principal authority to determine the indefinite
duration of the delegation of legislative powers, — in palpable
repugnance to the constitutional provision that any grant
thereunder must be for a limited period, necessarily to be fixed
in the law itself and not dependent upon the arbitrary or elastic
will of either the Congress or the President.
Although House Bill No. 727, had been vetoed by the President
and did not thereby become a regular statute, it may at least be
considered as a concurrent resolution of the Congress formally
declaring the termination of the emergency powers. To contend
that the Bill needed presidential acquiescence to produce
effect, would lead to the anomalous, if not absurd, situation
that, "while Congress might delegate its power by a simple
majority, it might not be able to recall them except by two-third
vote. In other words, it would be easier for Congress to delegate
its powers than to take them back. This is not right and is not,
and ought not to be the law."2
Act No. 671 may be likened to an ordinary contract of agency,
whereby the consent of the agent is necessary only in the sense
that he cannot be compelled to accept the trust, in the same
way that the principal cannot be forced to keep the relation in
eternity or at the will of the agent. Neither can it be suggested
that the agency created under the Act is coupled with interest.
The logical view consistent with constitutionality is to hold that
the powers lasted only during the emergency resulting from the
last world war which factually involved the Philippines when Act
No. 671 was passed on December 16, 1941. That emergency,
which naturally terminated upon the ending of the last world
war, was contemplated by the members of the National
Assembly on the foresight that the actual state of war could
prevent it from holding its next regular session. This is
confirmed by the following statement of President Quezon:
"When it became evident that we were completely helpless
against air attack and that it was most unlikely the Philippine
Legislature would hold its next regular session which was to
open on January 1, 1942, the National Assembly passed into
history approving a resolution which reaffirmed the abiding
faith of the Filipino people in, and their loyalty to, the United
States. The Assembly also enacted a law granting the President
of the Philippines all the powers that under the Philippine
Constitution may be delegated to him in time of war."3 When
President Quezon said "in time of war", he an doubtedly meant
such factual war as that then raging.
As early as July 26, 1948, the Congress categorically declared
that "since liberation conditions have gradually returned to
normal, but not so with regard to those who have suffered the
ravages of war and who have not received any relief for the loss
and destruction resulting therefrom," and that "the emergency
created by the last war as regards these war sufferers being still
existent, it is the declared policy of the state that as to them the
debt moratorium should be continued in force in a modified
form."4 It is important to remember that Republic Act No. 342 in
which this declaration was made bore the approval of the
President. Indeed, the latter in his speech delivered on July 4,
1949, plainly proclaimed that "what emergencies it (the
Republic) faces today are incidental passing rains artificially
created by seasonal partisanship, very common among
democracies but will disappear with the rains that follow the
thunderclaps not later than November 8 of this year," — an
admission, that such emergencies not only are not total but are
not the result of the last war as envisaged in Act No. 671.
If more is necessary to demonstrate the unmistakable stand of
the legislative department on the alleged existence of
emergency, reference may be had to House Bill No. 727,
hereinbefore referred to, repealing all Emergency Powers Acts.
Moreover, section 26 of Article VI of the constitution, in virtue
of which Act No. 671 was passed, authorizes the delegation of
powers by the Congress (1) in times of war or (2) other national
emergency. The emergency expressly spoken of in the title and
in section 1 of the Act is one "in time of war," as distinguished
from "other national emergency" that may arise as an after-
effect of war or from natural causes such as widespread
earthquakes, typhoons, floods, and the like. Certainly the
typhoons that hit some provinces and cities in 1952 not only did
not result from the last world war but were and could not have
been contemplated by the legislators. At any rate, the Congress
is available for necessary special sessions, and it cannot let the
people down without somehow being answerable thereover.
As a matter of fact, the President, in returning to the Congress
without his signature House Bill No. 727, did not invoke any
emergency resulting from the last world war, but only called
attention to an impending emergency that may be brought
about by present complicated and troubled world conditions,
and to the fact that our own soldiers are fighting and dying in
Korea in defense of democracy and freedom and for the
preservation of our Republic. The emergency thus feared
cannot, however, be attributed to the war mentioned in Act No.
671 and fought between Germany and Japan on one side and
the Allied Powers on the other; and indications are that in the
next world war, if any, the communist countries will be aligned
against the democracies. No departure can be made from the
national policy declared in section 1 of Act No. 671. New powers
may be granted as often as emergencies contemplated in the
Constitution arise.
There is no point in the argument that the Philippines is still
technically at war with Japan pending the ratification of the
peace treaty. In the first place, Act No. 671 referred to a factual
war. In the second place, the last world war was between the
United States and Japan, the Philippines being involved only
because it was then under American sovereignty. In the third
place, the United States had already signed the peace treaty
with Japan, and the Philippines has become an independent
country since July 4, 1946.
It is pointed out that the passage of House Bill No. 727 is
inconsistent with the claim that the emergency powers are non-
existent. But, from the debates in the House, it is patent that
the Bill had to be approved merely to remove all doubts,
especially because this Court had heretofore failed, for lack of
necessary majority, to declare Act No. 671 entirely inoperative.
Reliance is placed on the petition of about seventy
Congressmen and Senators and on House Resolution No. 99,
urging the President to release and appropriate funds for
essential and urgent public works and for relief in the typhoon-
stricken areas. It is enough to state, in reply, that the said
petition and resolution cannot prevail over the force and effect
of House Bill No. 727 formally passed by two chambers of the
Congress. If faith can be accorded to the resolution of one
house, there is more reason for accepting the solemn
declarations of two houses.
Even under the theory of some members of this court that
insofar as the Congress had shown its readiness or ability to act
on a given matter, the emergency powers delegated to the
President had been pro tanto withdrawn, Executive Orders Nos.
545 and 546 must be declared as having no legal anchorage. We
can take judicial notice of the fact that the Congress has since
liberation repeatedly been approving acts appropriating funds
for the operation of the Government, public works, and many
others purposes, with the result that as to such legislative task
the Congress must be deemed to have long decided to assume
the corresponding power itself and to withdraw the same from
the President. If the President had ceased to have powers with
regards to general appropriations, none can remain in respect
of special appropriations; otherwise he may accomplish
indirectly what he cannot do directly. Besides, it is significant
that Act No. 671 expressly limited the power of the President to
that continuing "in force" appropriations which would lapse or
otherwise become inoperative, so that, even assuming that the
Act is still effective, it is doubtful whether the President can by
executive orders make new appropriations. The specific power
"to continue in force laws and appropriations which would lapse
or otherwise become inoperative" is a limitation on the general
power "to exercise such other powers as he may deem
necessary to enable the Government to fulfill its responsibilities
and to maintain and enforce its authority." Indeed, to hold that
although the Congress has, for about seven years since
liberation, been normally functioning and legislating on every
conceivable field, the President still has any residuary powers
under the Act, would necessarily lead to confusion and
overlapping, if not conflict.
Shelter may not be sought in the proposition that the President
should be allowed to exercise emergency powers for the sake of
speed and expediency in the interest and for the welfare of the
people, because we have the Constitution, designed to establish
a government under a regime of justice, liberty and democracy.
In line with such primordial objective, our Government is
democratic in form and based on the system of separation of
powers. Unless and until changed or amended, we shall have to
abide by the letter and spirit of the Constitution and be
prepared to accept the consequences resulting from or inherent
in disagreements between, inaction or even refusal of the
legislative and executive departments. Much as it is imperative
in some cases to have prompt official action, deadlocks in and
slowness of democratic processes must be preferred to
concentration of powers in any one man or group of men for
obvious reasons. The framers of the Constitution, however, had
the vision of and were careful in allowing delegation of
legislative powers to the President for a limited period "in times
of war or other national emergency." They had thus entrusted
to the good judgment of the Congress the duty of coping with
any national emergency by a more efficient procedure; but it
alone must decide because emergency in itself cannot and
should not create power. In our democracy the hope and
survival of the nation lie in the wisdom and unselfish patriotism
of all officials and in their faithful adherence to the Constitution.

Wherefore, Executive Orders Nos. 545 and 546 are hereby

declared null and void, and the respondents are ordered to
desist from appropriating, releasing, allotting, and expending
the public funds set aside therein. So ordered, without costs.
G.R. No. 98332 January 16, 1995
MINERS ASSOCIATION OF THE PHILIPPINES, INC., petitioner,
vs.
HON. FULGENCIO S. FACTORAN, JR., Secretary of Environment
and Natural Resources, and JOEL D. MUYCO, Director of Mines
and Geosciences Bureau, respondents.
ROMERO, J.:
The instant petition seeks a ruling from this Court on the validity
of two Administrative Orders issued by the Secretary of the
Department of Environment and Natural Resources to carry out
the provisions of certain Executive Orders promulgated by the
President in the lawful exercise of legislative powers.
Herein controversy was precipitated by the change introduced
by Article XII, Section 2 of the 1987 Constitution on the system
of exploration, development and utilization of the country's
natural resources. No longer is the utilization of inalienable
lands of public domain through "license, concession or lease"
under the 1935 and 1973 Constitutions1 allowed under the 1987
Constitution.
The adoption of the concept of jura regalia2 that all natural
resources are owned by the State embodied in the 1935, 1973
and 1987 Constitutions, as well as the recognition of the
importance of the country's natural resources, not only for
national economic development, but also for its security and
national
defense,3 ushered in the adoption of the constitutional policy of
"full control and supervision by the State" in the exploration,
development and utilization of the country's natural resources.
The options open to the State are through direct undertaking or
by entering into co-production, joint venture; or production-
sharing agreements, or by entering into agreement with
foreign-owned corporations for large-scale exploration,
development and utilization.
Article XII, Section 2 of the 1987 Constitution provides:
Sec. 2. All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife,
flora and fauna, and other natural resources are owned
by the State. With the exception of agricultural lands, all
other natural resources shall not be alienated. The
exploration, development, and utilization of natural
resources shall be under the full control and supervision
of the State. The State may directly undertake such
activities, or it may enter into co-production, joint
venture, or product-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-
five years, renewable for not more than twenty-five
years, and under such terms and conditions as may be
provided by law. In cases of water rights for irrigation,
water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the
measure and limit of the grant.
xxx xxx xxx
The President may enter into agreements with foreign-
owned corporations involving either technical or
financial assistance for large-scale exploration,
development, and utilization of minerals, petroleum,
and other mineral oils according to the general terms
and conditions provided by law, based on real
contributions to the economic growth and general
welfare of the country. In such agreements, the State
shall promote the development and use of local
scientific and technical resources.
The President shall notify the Congress of every
contract entered into in accordance with this provision,
within thirty days from its execution. (Emphasis
supplied)
Pursuant to the mandate of the above-quoted provision,
legislative acts4 were successively issued by the President in the
exercise of her legislative
power.5
To implement said legislative acts, the Secretary of the
Department of Environment and Natural Resources (DENR) in
turn promulgated Administrative Order Nos. 57 and 82, the
validity and constitutionality of which are being challenged in
this petition.
On July 10, 1987, President Corazon C. Aquino, in the exercise of
her then legislative powers under Article II, Section 1 of the
Provisional Constitution and Article XIII, Section 6 of the 1987
Constitution, promulgated Executive Order No. 211 prescribing
the interim procedures in the processing and approval of
applications for the exploration, development and utilization of
minerals pursuant to the 1987 Constitution in order to ensure
the continuity of mining operations and activities and to hasten
the development of mineral resources. The pertinent provisions
read as follows:
Sec. 1. Existing mining permits, licenses, leases and
other mining grants issued by the Department of
Environment and Natural Resources and Bureau of
Mines and Geo-Sciences, including existing operating
agreements and mining service contracts, shall continue
and remain in full force and effect, subject to the same
terms and conditions as originally granted and/or
approved.
Sec. 2. Applications for the exploration, development
and utilization of mineral resources, including renewal
applications for approval of operating agreements and
mining service contracts, shall be accepted and
processed and may be approved; concomitantly
thereto, declarations of locations and all other kinds of
mining applications shall be accepted and registered by
the Bureau of Mines and Geo-Sciences.
 Sec. 3. The processing, evaluation and approval of all
mining applications, declarations of locations, operating
agreements and service contracts as provided for in
Section 2 above, shall be governed by Presidential
Decree No. 463, as amended, other existing mining laws
and their implementing rules and regulations: Provided,
however, that the privileges granted, as well as the
terms and conditions thereof shall be subject to any and
all modifications or alterations which Congress may
adopt pursuant to Section 2, Article XII of the 1987
Constitution.
On July 25, 1987, President Aquino likewise promulgated
Executive Order No. 279 authorizing the DENR Secretary to
negotiate and conclude joint venture, co-production, or
production-sharing agreements for the exploration,
development and utilization of mineral resources, and
prescribing the guidelines for such agreements and those
agreements involving technical or financial assistance by
foreign-owned corporations for large-scale exploration,
development, and utilization of minerals. The pertinent
provisions relevant to this petition are as follows:
Sec. 1. The Secretary of the Department of Environment
and Natural Resources (hereinafter referred to as "the
Secretary") is hereby authorized to negotiate and enter
into, for and in behalf of the Government, joint venture,
co-production, or production-sharing agreements for
the exploration, development, and utilization of mineral
resources with any Filipino citizens, or corporation or
association at least sixty percent (60%) of whose capital
is owned by Filipino citizens. Such joint venture, co-
production, or production-sharing agreements may be
for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and shall include
the minimum terms and conditions prescribed in
Section 2 hereof. In the execution of a joint venture, co-
production or production agreements, the contracting
parties, including the Government, may consolidate two
or more contiguous or geologically — related mining
claims or leases and consider them as one contract area
for purposes of determining the subject of the joint
venture, co-production, or production-sharing
agreement.
xxx xxx xxx
Sec. 6. The Secretary shall promulgate such
supplementary rules and regulations as may be
necessary to effectively implement the provisions of
this Executive Order.
Sec. 7. All provisions of Presidential Decree No. 463, as
amended, other existing mining laws, and their
implementing rules and regulations, or parts thereof,
which are not inconsistent with the provisions of this
Executive Order, shall continue in force and effect.
Pursuant to Section 6 of Executive Order No. 279, the DENR
Secretary issued on June 23, 1989 DENR Administrative Order
No. 57, series of 1989, captioned "Guidelines of Mineral
Production Sharing Agreement under Executive Order No.
279."6 Under the transitory provision of said DENR
Administrative Order No. 57, embodied in its Article 9, all
existing mining leases or agreements which were granted after
the effectivity of the 1987 Constitution pursuant to Executive
Order No. 211, except small scale mining leases and those
pertaining to sand and gravel and quarry resources covering an
area of twenty (20) hectares or less, shall be converted into
production-sharing agreements within one (1) year from the
effectivity of these guidelines.
On November 20, 1980, the Secretary of the DENR
Administrative Order No. 82, series of 1990, laying down the
"Procedural Guidelines on the Award of Mineral Production
Sharing Agreement (MPSA) through Negotiation."7
Section 3 of the aforementioned DENR Administrative Order No.
82 enumerates the persons or entities required to submit Letter
of Intent (LOIs) and Mineral Production Sharing Agreement
(MPSAs) within two (2) years from the effectivity of DENR
Administrative Order No. 57 or until July 17, 1991. Failure to do
so within the prescribed period shall cause the abandonment of
mining, quarry and sand and gravel claims. Section 3 of DENR
Administrative Order No. 82 provides:
Sec. 3. Submission of Letter of Intent (LOIs) and MPSAs).
The following shall submit their LOIs and MPSAs within
two (2) years from the effectivity of DENR A.O. 57 or
until July 17, 1991.
i. Declaration of Location (DOL) holders, mining lease
applicants, exploration permitees, quarry applicants and
other mining applicants whose mining/quarry
applications have not been perfected prior to the
effectivity of DENR Administrative Order No. 57.
ii. All holders of DOL acquired after the effectivity of
DENR A.O. No. 57.
iii. Holders of mining leases or similar agreements which
were granted after (the) effectivity of 1987
Constitution.
Failure to submit letters of intent and MPSA
applications/proposals within the prescribed period
shall cause the abandonment of mining, quarry and
sand and gravel claims.
The issuance and the impeding implementation by the DENR of
Administrative Order Nos. 57 and 82 after their respective
effectivity dates compelled the Miners Association of the
Philippines, Inc.8 to file the instant petition assailing their
validity and constitutionality before this Court.
In this petition for certiorari, petitioner Miners Association of
the Philippines, Inc. mainly contends that respondent Secretary
of DENR issued both Administrative Order Nos. 57 and 82 in
excess of his rule-making power under Section 6 of Executive
Order No. 279. On the assumption that the questioned
administrative orders do not conform with Executive Order Nos.
211 and 279, petitioner contends that both orders violate the
non-impairment of contract provision under Article III, Section
10 of the 1987 Constitution on the ground that Administrative
Order No. 57 unduly pre-terminates existing mining agreements
and automatically converts them into production-sharing
agreements within one (1) year from its effectivity date. On the
other hand, Administrative Order No. 82 declares that failure to
submit Letters of Intent and Mineral Production-Sharing
Agreements within two (2) years from the date of effectivity of
said guideline or on July 17, 1991 shall cause the abandonment
of their mining, quarry and sand gravel permits.
On July 2, 1991, the Court, acting on petitioner's urgent ex-
parte petition for issuance of a restraining order/preliminary
injunction, issued a Temporary Restraining Order, upon posting
of a P500,000.00 bond, enjoining the enforcement and
implementation of DENR Administrative Order Nos. 57 and 82,
as amended, Series of 1989 and 1990, respectively.9
On November 13, 1991, Continental Marble Corporation, 10 thru
its President, Felipe A. David, sought to intervene 11 in this case
alleging that because of the temporary order issued by the
Court , the DENR, Regional Office No. 3 in San Fernando,
Pampanga refused to renew its Mines Temporary Permit after it
expired on July 31, 1991. Claiming that its rights and interests
are prejudicially affected by the implementation of DENR
Administrative Order Nos. 57 and 82, it joined petitioner herein
in seeking to annul Administrative Order Nos. 57 and 82 and
prayed that the DENR, Regional Office No. 3 be ordered to issue
a Mines Temporary Permit in its favor to enable it to operate
during the pendency of the suit.
Public respondents were acquired to comment on the
Continental Marble Corporation's petition for intervention in
the resolution of November 28, 1991.12
Now to the main petition. If its argued that Administrative
Order Nos. 57 and 82 have the effect of repealing or abrogating
existing mining laws 13 which are not inconsistent with the
provisions of Executive Order No. 279. Invoking Section 7 of said
Executive Order No. 279, 14 petitioner maintains that
respondent DENR Secretary cannot provide guidelines such as
Administrative Order Nos. 57 and 82 which are inconsistent
with the provisions of Executive Order No. 279 because both
Executive Order Nos. 211 and 279 merely reiterated the
acceptance and registration of declarations of location and all
other kinds of mining applications by the Bureau of Mines and
Geo-Sciences under the provisions of Presidential Decree No.
463, as amended, until Congress opts to modify or alter the
same.
In other words, petitioner would have us rule that DENR
Administrative Order Nos. 57 and 82 issued by the DENR
Secretary in the exercise of his rule-making power are tainted
with invalidity inasmuch as both contravene or subvert the
provisions of Executive Order Nos. 211 and 279 or embrace
matters not covered, nor intended to be covered, by the
aforesaid laws.
We disagree.
We reiterate the principle that the power of administrative
officials to promulgate rules and regulations in the
implementation of a statute is necessarily limited only to
carrying into effect what is provided in the legislative
enactment. The principle was enunciated as early as 1908 in the
case of United States v. Barrias. 15 The scope of the exercise of
such rule-making power was clearly expressed in the case
of United States v. Tupasi Molina, 16 decided in 1914, thus: "Of
course, the regulations adopted under legislative authority by a
particular department must be in harmony with the provisions
of the law, and for the sole purpose of carrying into effect its
general provisions. By such regulations, of course, the law itself
can not be extended. So long, however, as the regulations relate
solely to carrying into effect its general provisions. By such
regulations, of course, the law itself can not be extended. So
long, however, as the regulations relate solely to carrying into
effect the provision of the law, they are valid."
Recently, the case of People v. Maceren 17 gave a brief
delienation of the scope of said power of administrative
officials:
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
provision. By such regulations, of course, the law itself
cannot be extended (U.S. v. Tupasi Molina, supra). An
administrative agency cannot amend an act of Congress
(Santos vs. Estenzo, 109 Phil. 419, 422; Teoxon vs.
Members of the Board of Administrators, L-25619, June
30, 1970, 33 SCRA 585; Manuel vs. General Auditing
Office, L-28952, December 29, 1971, 42 SCRA 660;
Deluao v. 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 has 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 v. Board of Tax
Appeals, 93 Phil. 376, 382, citing 12 C.J. 845-46. As to
invalid regulations, see Collector of Internal Revenue v.
Villaflor, 69 Phil. 319; Wise & Co. v. Meer, 78 Phil. 655,
676; Del Mar v. Phil. Veterans Administration, L-27299,
June 27, 1973, 51 SCRA 340, 349).
xxx xxx xxx
. . . 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 Victorias Milling Co., Inc. v. 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
prevails because said rule or regulations cannot go
beyond the terms and provisions of the basic law
(People v. Lim, 108 Phil. 1091).
Considering that administrative rules draw life from the statute
which they seek to implement, it is obvious that the spring
cannot rise higher than its source. We now examine petitioner's
argument that DENR Administrative Order Nos. 57 and 82
contravene Executive Order Nos. 211 and 279 as both operate
to repeal or abrogate Presidential Decree No. 463, as amended,
and other mining laws allegedly acknowledged as the principal
law under Executive Order Nos. 211 and 279.
Petitioner's insistence on the application of Presidential Decree
No. 463, as amended, as the governing law on the acceptance
and approval of declarations of location and all other kinds of
applications for the exploration, development, and utilization of
mineral resources pursuant to Executive Order No. 211, is
erroneous. Presidential Decree No. 463, as amended, pertains
to the old system of exploration, development and utilization of
natural resources through "license, concession or lease" which,
however, has been disallowed by Article XII, Section 2 of the
1987 Constitution. By virtue of the said constitutional mandate
and its implementing law, Executive Order No. 279 which
superseded Executive Order No. 211, the provisions dealing on
"license, concession or lease" of mineral resources under
Presidential Decree No. 463, as amended, and other existing
mining laws are deemed repealed and, therefore, ceased to
operate as the governing law. In other words, in all other areas
of administration and management of mineral lands, the
provisions of Presidential Decree No. 463, as amended, and
other existing mining laws, still govern. Section 7 of Executive
Order No. 279 provides, thus:
Sec. 7. All provisions of Presidential Decree No. 463, as
amended, other existing mining laws, and their
implementing rules and regulations, or parts thereof,
which are not inconsistent with the provisions of this
Executive Order, shall continue in force and effect.
Specifically, the provisions of Presidential Decree No. 463, as
amended, on lease of mining claims under Chapter VIII, quarry
permits on privately-owned lands of quarry license on public
lands under Chapter XIII and other related provisions on lease,
license and permits are not only inconsistent with the raison
d'etre for which Executive Order No. 279 was passed, but
contravene the express mandate of Article XII, Section 2 of the
1987 Constitution. It force and effectivity is thus foreclosed.
Upon the effectivity of the 1987 Constitution on February 2,
1987, 18 the State assumed a more dynamic role in the
exploration, development and utilization of the natural
resources of the country. Article XII, Section 2 of the said
Charter explicitly ordains that the exploration, development and
utilization of natural resources shall be under the full control
and supervision of the State. Consonant therewith, the
exploration, development and utilization of natural resources
may be undertaken by means of direct act of the State, or it
may opt to enter into co-production, joint venture, or
production-sharing agreements, or it may enter into
agreements with foreign-owned corporations involving either
technical or financial assistance for large-scale exploration,
development, and utilization of minerals, petroleum, and other
mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic
growth and general welfare of the country.
Given these considerations, there is no clear showing that
respondent DENR Secretary has transcended the bounds
demarcated by Executive Order No. 279 for the exercise of his
rule-making power tantamount to a grave abuse of discretion.
Section 6 of Executive Order No. 279 specifically authorizes said
official to promulgate such supplementary rules and regulations
as may be necessary to effectively implement the provisions
thereof. Moreover, the subject sought to be governed and
regulated by the questioned orders is germane to the objects
and purposes of Executive Order No. 279 specifically issued to
carry out the mandate of Article XII, Section 2 of the 1987
Constitution.
Petitioner likewise maintains that Administrative Order No. 57,
in relation to Administrative Order No. 82, impairs vested rights
as to violate the non-impairment of contract doctrine
guaranteed under Article III, Section 10 of the 1987 Constitution
because Article 9 of Administrative Order No. 57 unduly pre-
terminates and automatically converts mining leases and other
mining agreements into production-sharing agreements within
one (1) year from effectivity of said guideline, while Section 3 of
Administrative Order No. 82, declares that failure to submit
Letters of Intent (LOIs) and MPSAs within two (2) years from the
effectivity of Administrative Order No. 57 or until July 17, 1991
shall cause the abandonment of mining, quarry, and sand gravel
permits.
In Support of the above contention, it is argued by petitioner
that Executive Order No. 279 does not contemplate automatic
conversion of mining lease agreements into mining production-
sharing agreement as provided under Article 9, Administrative
Order No. 57 and/or the consequent abandonment of mining
claims for failure to submit LOIs and MPSAs under Section 3,
Administrative Order No. 82 because Section 1 of said Executive
Order No. 279 empowers the DENR Secretary to negotiate and
enter into voluntary agreements which must set forth the
minimum terms and conditions provided under Section 2
thereof. Moreover, petitioner contends that the power to
regulate and enter into mining agreements does not include the
power to preterminate existing mining lease agreements.
To begin with, we dispel the impression created by petitioner's
argument that the questioned administrative orders unduly
preterminate existing mining leases in general. A distinction
which spells a real difference must be drawn. Article XII, Section
2 of the 1987 Constitution does not apply retroactively to
"license, concession or lease" granted by the government under
the 1973 Constitution or before the effectivity of the 1987
Constitution on February 2, 1987. The intent to apply
prospectively said constitutional provision was stressed during
the deliberations in the Constitutional Commission, 19 thus:
MR. DAVIDE: Under the proposal, I notice that except
for the [inalienable] lands of the public domain, all
other natural resources cannot be alienated and in
respect to [alienable] lands of the public domain,
private corporations with the required ownership by
Filipino citizens can only lease the same. Necessarily,
insofar as other natural resources are concerned, it
would only be the State which can exploit, develop,
explore and utilize the same. However, the State may
enter into a joint venture, co-production or production-
sharing. Is that not correct?
MR. VILLEGAS: Yes.
MR. DAVIDE: Consequently, henceforth upon, the
approval of this Constitution, no timber or forest
concession, permits or authorization can be exclusively
granted to any citizen of the Philippines nor to any
corporation qualified to acquire lands of the public
domain?
MR. VILLEGAS: Would Commissioner Monsod like to
comment on that? I think his answer is "yes."
MR. DAVIDE: So, what will happen now license or
concessions earlier granted by the Philippine
government to private corporations or to Filipino
citizens? Would they be deemed repealed?
MR. VILLEGAS: This is not applied retroactively. They
will be respected.
MR. DAVIDE: In effect, they will be deemed repealed?
MR. VILLEGAS: No. (Emphasis supplied)
During the transition period or after the effectivity of the 1987
Constitution on February 2, 1987 until the first Congress under
said Constitution was convened on July 27, 1987, two (2)
successive laws, Executive Order Nos. 211 and 279, were
promulgated to govern the processing and approval of
applications for the exploration, development and utilization of
minerals. To carry out the purposes of said laws, the questioned
Administrative Order Nos. 57 and 82, now being assailed, were
issued by the DENR Secretary.
Article 9 of Administrative Order No. 57 provides:
ARTICLE 9
TRANSITORY PROVISION
9.1. All existing mining leases or agreements which
were granted after the effectivity of the 1987
Constitution pursuant to Executive Order No. 211,
except small scale mining leases and those pertaining to
sand and gravel and quarry resources covering an area
of twenty (20) hectares or less shall be subject to these
guidelines. All such leases or agreements shall be
converted into production sharing agreement within
one (1) year from the effectivity of these guidelines.
However, any minimum firm which has established
mining rights under Presidential Decree 463 or other
laws may avail of the provisions of EO 279 by following
the procedures set down in this document.
It is clear from the aforestated provision that Administrative
Order No. 57 applies only to all existing mining leases or
agreements which were granted after the effectivity of the 1987
Constitution pursuant to Executive Order No. 211. It bears
mention that under the text of Executive Order No. 211, there is
a reservation clause which provides that the privileges as well as
the terms and conditions of all existing mining leases or
agreements granted after the effectivity of the 1987
Constitution pursuant to Executive Order No. 211, shall be
subject to any and all modifications or alterations which
Congress may adopt pursuant to Article XII, Section 2 of the
1987 Constitution. Hence, the strictures of the
non-impairment of contract clause under Article III, Section 10
of the 1987 Constitution 20 do not apply to the aforesaid leases
or agreements granted after the effectivity of the 1987
Constitution, pursuant to Executive Order No. 211. They can be
amended, modified or altered by a statute passed by Congress
to achieve the purposes of Article XII, Section 2 of the 1987
Constitution.
Clearly, Executive Order No. 279 issued on July 25, 1987 by
President Corazon C. Aquino in the exercise of her legislative
power has the force and effect of a statute or law passed by
Congress. As such, it validly modified or altered the privileges
granted, as well as the terms and conditions of mining leases
and agreements under Executive Order No. 211 after the
effectivity of the 1987 Constitution by authorizing the DENR
Secretary to negotiate and conclude joint venture, co-
production, or production-sharing agreements for the
exploration, development and utilization of mineral resources
and prescribing the guidelines for such agreements and those
agreements involving technical or financial assistance by
foreign-owned corporations for large-scale exploration,
development, and utilization of minerals.
Well -settled is the rule, however, that regardless of the
reservation clause, mining leases or agreements granted by the
State, such as those granted pursuant to Executive Order No.
211 referred to this petition, are subject to alterations through
a reasonable exercise of the police power of the State. In the
1950 case of Ongsiako v. Gamboa, 21 where the constitutionality
of Republic Act No. 34 changing the 50-50 sharecropping system
in existing agricultural tenancy contracts to 55-45 in favor of
tenants was challenged, the Court, upholding the
constitutionality of the law, emphasized the superiority of the
police power of the State over the sanctity of this contract:
The prohibition contained in constitutional provisions against:
impairing the obligation of contracts is not an absolute one and
it is not to be read with literal exactness like a mathematical
formula. Such provisions are restricted to contracts which
respect property, or some object or value, and confer rights
which may be asserted in a court of justice, and have no
application to statute relating to public subjects within the
domain of the general legislative powers of the State, and
involving the public rights and public welfare of the entire
community affected by it. They do not prevent a proper
exercise by the State of its police powers. By enacting
regulations reasonably necessary to secure the health, safety,
morals, comfort, or general welfare of the community, even the
contracts may thereby be affected; for such matter can not be
placed by contract beyond the power of the State shall
regulates and control them. 22
In Ramas v. CAR and Ramos 23 where the constitutionality of
Section 14 of Republic Act No. 1199 authorizing the tenants to
charge from share to leasehold tenancy was challenged on the
ground that it impairs the obligation of contracts, the Court
ruled that obligations of contracts must yield to a proper
exercise of the police power when such power is exercised to
preserve the security of the State and the means adopted are
reasonably adapted to the accomplishment of that end and are,
therefore, not arbitrary or oppressive.
The economic policy on the exploration, development and
utilization of the country's natural resources under Article XII,
Section 2 of the 1987 Constitution could not be any clearer. As
enunciated in Article XII, Section 1 of the 1987 Constitution, the
exploration, development and utilization of natural resources
under the new system mandated in Section 2, is geared towards
a more equitable distribution of opportunities, income, and
wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people;
and an expanding productivity as the key to raising the quality
of life for all, especially the underprivileged.
The exploration, development and utilization of the country's
natural resources are matters vital to the public interest and the
general welfare of the people. The recognition of the
importance of the country's natural resources was expressed as
early as the 1984 Constitutional Convention. In connection
therewith, the 1986 U.P. Constitution Project observed: "The
1984 Constitutional Convention recognized the importance of
our natural resources not only for its security and national
defense. Our natural resources which constitute the exclusive
heritage of the Filipino nation, should be preserved for those
under the sovereign authority of that nation and for their
prosperity. This will ensure the country's survival as a viable and
sovereign republic."
Accordingly, the State, in the exercise of its police power in this
regard, may not be precluded by the constitutional restriction
on non-impairment of contract from altering, modifying and
amending the mining leases or agreements granted under
Presidential Decree No. 463, as amended, pursuant to Executive
Order No. 211. Police Power, being co-extensive with the
necessities of the case and the demands of public interest;
extends to all the vital public needs. The passage of Executive
Order No. 279 which superseded Executive Order No. 211
provided legal basis for the DENR Secretary to carry into effect
the mandate of Article XII, Section 2 of the 1987 Constitution.
Nowhere in Administrative Order No. 57 is there any provision
which would lead us to conclude that the questioned order
authorizes the automatic conversion of mining leases and
agreements granted after the effectivity of the 1987
Constitution, pursuant to Executive Order No. 211, to
production-sharing agreements. The provision in Article 9 of
Administrative Order No. 57 that "all such leases or agreements
shall be converted into production sharing agreements within
one (1) year from the effectivity of these guidelines" could not
possibility contemplate a unilateral declaration on the part of
the Government that all existing mining leases and agreements
are automatically converted into
production-sharing agreements. On the contrary, the use of the
term "production-sharing agreement" if they are so minded.
Negotiation negates compulsion or automatic conversion as
suggested by petitioner in the instant petition. A mineral
production-sharing agreement (MPSA) requires a meeting of
the minds of the parties after negotiations arrived at in good
faith and in accordance with the procedure laid down in the
subsequent Administrative Order No. 82.
We, therefore, rule that the questioned administrative orders
are reasonably directed to the accomplishment of the purposes
of the law under which they were issued and were intended to
secure the paramount interest of the public, their economic
growth and welfare. The validity and constitutionality of
Administrative Order Nos. 57 and 82 must be sustained, and
their force and effect upheld.
We now, proceed to the petition-in-intervention. Under Section
2, Rule 12 of the Revised Rules of Court, an intervention in a
case is proper when the intervenor has a "legal interest in the
matter in litigation, or in the success of either of the parties, or
an interest against both, or when he is so situated as to be
adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof.
"Continental Marble Corporation has not sufficiently shown that
it falls under any of the categories mentioned above. The
refusal of the DENR, Regional Office No. 3, San Fernando,
Pampanga to renew its Mines Temporary Permit does not
justify such an intervention by Continental Marble Corporation
for the purpose of obtaining a directive from this Court for the
issuance of said permit. Whether or not Continental Marble
matter best addressed to the appropriate government body but
certainly, not through this Court. Intervention is hereby DENIED.
WHEREFORE, the petition is DISMISSED for lack of merit. The
Temporary Restraining Order issued on July 2, 1991 is hereby
LIFTED.
SO ORDERED.
G.R. No. L-23825 December 24, 1965
EMMANUEL PELAEZ, petitioner,
vs.
THE AUDITOR GENERAL, respondent.
CONCEPCION, J.:
During the period from September 4 to October 29, 1964 the
President of the Philippines, purporting to act pursuant to
Section 68 of the Revised Administrative Code, issued Executive
Orders Nos. 93 to 121, 124 and 126 to 129; creating thirty-three
(33) municipalities enumerated in the margin.1 Soon after the
date last mentioned, or on November 10, 1964 petitioner
Emmanuel Pelaez, as Vice President of the Philippines and as
taxpayer, instituted the present special civil action, for a writ of
prohibition with preliminary injunction, against the Auditor
General, to restrain him, as well as his representatives and
agents, from passing in audit any expenditure of public funds in
implementation of said executive orders and/or any
disbursement by said municipalities.
Petitioner alleges that said executive orders are null and void,
upon the ground that said Section 68 has been impliedly
repealed by Republic Act No. 2370 and constitutes an undue
delegation of legislative power. Respondent maintains the
contrary view and avers that the present action is premature
and that not all proper parties — referring to the officials of the
new political subdivisions in question — have been impleaded.
Subsequently, the mayors of several municipalities adversely
affected by the aforementioned executive orders — because
the latter have taken away from the former the barrios
composing the new political subdivisions — intervened in the
case. Moreover, Attorneys Enrique M. Fernando and Emma
Quisumbing-Fernando were allowed to and did appear as amici
curiae.
The third paragraph of Section 3 of Republic Act No. 2370,
reads:
Barrios shall not be created or their boundaries altered
nor their names changed except under the provisions of
this Act or by Act of Congress.
Pursuant to the first two (2) paragraphs of the same Section 3:
All barrios existing at the time of the passage of this Act
shall come under the provisions hereof.
Upon petition of a majority of the voters in the areas
affected, a new barrio may be created or the name of
an existing one may be changed by the provincial board
of the province, upon recommendation of the council of
the municipality or municipalities in which the proposed
barrio is stipulated. The recommendation of the
municipal council shall be embodied in a resolution
approved by at least two-thirds of the entire
membership of the said council: Provided, however,
That no new barrio may be created if its population is
less than five hundred persons.
Hence, since January 1, 1960, when Republic Act No. 2370
became effective, barrios may "not be created or their
boundaries altered nor their names changed" except by Act of
Congress or of the corresponding provincial board "upon
petition of a majority of the voters in the areas affected" and
the "recommendation of the council of the municipality or
municipalities in which the proposed barrio is situated."
Petitioner argues, accordingly: "If the President, under this new
law, cannot even create a barrio, can he create a municipality
which is composed of several barrios, since barrios are units of
municipalities?"
Respondent answers in the affirmative, upon the theory that a
new municipality can be created without creating new barrios,
such as, by placing old barrios under the jurisdiction of the new
municipality. This theory overlooks, however, the main import
of the petitioner's argument, which is that the statutory denial
of the presidential authority to create a new barrio implies a
negation of the bigger power to create municipalities, each of
which consists of several barrios. The cogency and force of this
argument is too obvious to be denied or even questioned.
Founded upon logic and experience, it cannot be offset except
by a clear manifestation of the intent of Congress to the
contrary, and no such manifestation, subsequent to the passage
of Republic Act No. 2379, has been brought to our attention.
Moreover, section 68 of the Revised Administrative Code, upon
which the disputed executive orders are based, provides:
The (Governor-General) President of the Philippines
may by executive order define the boundary, or
boundaries, of any province, subprovince, municipality,
[township] municipal district, or other political
subdivision, and increase or diminish the territory
comprised therein, may divide any province into one or
more subprovinces, separate any political division other
than a province, into such portions as may be required,
merge any of such subdivisions or portions with
another, name any new subdivision so created, and may
change the seat of government within any subdivision
to such place therein as the public welfare may require:
Provided, That the authorization of the (Philippine
Legislature) Congress of the Philippines shall first be
obtained whenever the boundary of any province or
subprovince is to be defined or any province is to be
divided into one or more subprovinces. When action by
the (Governor-General) President of the Philippines in
accordance herewith makes necessary a change of the
territory under the jurisdiction of any administrative
officer or any judicial officer, the (Governor-General)
President of the Philippines, with the recommendation
and advice of the head of the Department having
executive control of such officer, shall redistrict the
territory of the several officers affected and assign such
officers to the new districts so formed.
Upon the changing of the limits of political divisions in
pursuance of the foregoing authority, an equitable
distribution of the funds and obligations of the divisions
 thereby affected shall be made in such manner as may
be recommended by the (Insular Auditor) Auditor
General and approved by the (Governor-General)
President of the Philippines.
Respondent alleges that the power of the President to create
municipalities under this section does not amount to an undue
delegation of legislative power, relying upon Municipality of
Cardona vs. Municipality of Binañgonan (36 Phil. 547), which, he
claims, has settled it. Such claim is untenable, for said case
involved, not the creation of a new municipality, but a
mere transfer of territory — from an already
existing municipality (Cardona) to another municipality
(Binañgonan), likewise, existing at the time of and prior to said
transfer (See Gov't of the P.I. ex rel. Municipality of Cardona vs.
Municipality, of Binañgonan [34 Phil. 518, 519-5201) — in
consequence of the fixing and definition, pursuant to Act No.
1748, of the common boundaries of two municipalities.
It is obvious, however, that, whereas the power to fix such
common boundary, in order to avoid or settle conflicts of
jurisdiction between adjoining municipalities, may partake of
an administrative nature — involving, as it does, the adoption of
means and ways to carry into effect the law creating said
municipalities — the authority to create municipal corporations
is essentially legislative in nature. In the language of other
courts, it is "strictly a legislative function" (State ex rel. Higgins
vs. Aicklen, 119 S. 425, January 2, 1959) or "solely
and exclusively the exercise of legislative power" (Udall vs.
Severn, May 29, 1938, 79 P. 2d 347-349). As the Supreme Court
of Washington has put it (Territory ex rel. Kelly vs. Stewart,
February 13, 1890, 23 Pac. 405, 409), "municipal corporations
are purely the creatures of statutes."
Although1a Congress may delegate to another branch of the
Government the power to fill in the details in the execution,
enforcement or administration of a law, it is essential, to
forestall a violation of the principle of separation of powers,
that said law: (a) be complete in itself — it must set forth
therein the policy to be executed, carried out or implemented
by the delegate2 — and (b) fix a standard — the limits of which
are sufficiently determinate or determinable — to which the
delegate must conform in the performance of his
functions.2a Indeed, without a statutory declaration of policy,
the delegate would in effect, make or formulate such policy,
which is the essence of every law; and, without the
aforementioned standard, there would be no means to
determine, with reasonable certainty, whether the delegate has
acted within or beyond the scope of his authority.2b Hence, he
could thereby arrogate upon himself the power, not only to
make the law, but, also — and this is worse — to unmake it, by
adopting measures inconsistent with the end sought to be
attained by the Act of Congress, thus nullifying the principle of
separation of powers and the system of checks and balances,
and, consequently, undermining the very foundation of our
Republican system.
Section 68 of the Revised Administrative Code does not meet
these well settled requirements for a valid delegation of the
power to fix the details in the enforcement of a law. It does not
enunciate any policy to be carried out or implemented by the
President. Neither does it give a standard sufficiently precise to
avoid the evil effects above referred to. In this connection, we
do not overlook the fact that, under the last clause of the first
sentence of Section 68, the President:
... may change the seat of the government within any
subdivision to such place therein as the public welfare
may require.
It is apparent, however, from the language of this clause, that
the phrase "as the public welfare may require" qualified, not the
clauses preceding the one just quoted, but only the place to
which the seat of the government may be transferred. This fact
becomes more apparent when we consider that said Section 68
was originally Section 1 of Act No. 1748,3 which provided that,
"whenever in the judgment of the Governor-General the public
welfare requires, he may, by executive order," effect the
changes enumerated therein (as in said section 68), including
the change of the seat of the government "to such place ... as
the public interest requires." The opening statement of said
Section 1 of Act No. 1748 — which was not included in
Section 68 of the Revised Administrative Code — governed the
time at which, or the conditions under which, the powers
therein conferred could be exercised; whereas the last part of
the first sentence of said section referred exclusively to
the place to which the seat of the government was to be
transferred.
At any rate, the conclusion would be the same, insofar as the
case at bar is concerned, even if we assumed that the phrase
"as the public welfare may require," in said Section 68, qualifies
all other clauses thereof. It is true that in Calalang vs.
Williams (70 Phil. 726) and People vs. Rosenthal (68 Phil. 328),
this Court had upheld "public welfare" and "public interest,"
respectively, as sufficient standards for a valid delegation of the
authority to execute the law. But, the doctrine laid down in
these cases — as all judicial pronouncements — must be
construed in relation to the specific facts and issues involved
therein, outside of which they do not constitute precedents and
have no binding effect.4 The law construed in the Calalang case
conferred upon the Director of Public Works, with the approval
of the Secretary of Public Works and Communications, the
power to issue rules and regulations to promote safe
transit upon national roads and streets. Upon the other hand,
the Rosenthal case referred to the authority of the Insular
Treasurer, under Act No. 2581, to issue and cancel certificates
or permits for the sale of speculative securities. Both cases
involved grants to administrative officers of powers related to
the exercise of their administrative functions, calling for the
determination of questions of fact.
Such is not the nature of the powers dealt with in section 68. As
above indicated, the creation of municipalities, is not
an administrative function, but one which is essentially
and eminently legislative in character. The question of whether
or not "public interest" demands the exercise of such power
is not one of fact. it is "purely a legislative question "(Carolina-
Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S.E.
2d. 310-313, 315-318), or a political question (Udall vs. Severn,
79 P. 2d. 347-349). As the Supreme Court of Wisconsin has aptly
characterized it, "the question as to whether incorporation is
for the best interest of the community in any case is
emphatically a question of public policy and statecraft" (In re
Village of North Milwaukee, 67 N.W. 1033, 1035-1037).
For this reason, courts of justice have annulled, as constituting
undue delegation of legislative powers, state laws granting the
judicial department, the power to determine whether certain
territories should be annexed to a particular municipality (Udall
vs. Severn, supra, 258-359); or vesting in a Commission the right
to determine the plan and frame of government of proposed
villages and what functions shall be exercised by the same,
although the powers and functions of the village are specifically
limited by statute (In re Municipal Charters, 86 Atl. 307-308); or
conferring upon courts the authority to declare a given town or
village incorporated, and designate its metes and bounds, upon
petition of a majority of the taxable inhabitants thereof, setting
forth the area desired to be included in such village (Territory ex
rel Kelly vs. Stewart, 23 Pac. 405-409); or authorizing the
territory of a town, containing a given area and population, to
be incorporated as a town, on certain steps being taken by the
inhabitants thereof and on certain determination by a court and
subsequent vote of the inhabitants in favor thereof, insofar as
the court is allowed to determine whether the lands embraced
in the petition "ought justly" to be included in the village, and
whether the interest of the inhabitants will be promoted by
such incorporation, and to enlarge and diminish the boundaries
of the proposed village "as justice may require" (In re Villages of
North Milwaukee, 67 N.W. 1035-1037); or creating a Municipal
Board of Control which shall determine whether or not the
laying out, construction or operation of a toll road is in the
"public interest" and whether the requirements of the law had
been complied with, in which case the board shall enter an
order creating a municipal corporation and fixing the name of
the same (Carolina-Virginia Coastal Highway vs. Coastal
Turnpike Authority, 74 S.E. 2d. 310).
Insofar as the validity of a delegation of power by Congress to
the President is concerned, the case of Schechter Poultry
Corporation vs. U.S. (79 L. Ed. 1570) is quite relevant to the one
at bar. The Schechter case involved the constitutionality of
Section 3 of the National Industrial Recovery Act authorizing the
President of the United States to approve "codes of fair
competition" submitted to him by one or more trade or
industrial associations or corporations which "impose no
inequitable restrictions on admission to membership therein
and are truly representative," provided that such codes are not
designed "to promote monopolies or to eliminate or oppress
small enterprises and will not operate to discriminate against
them, and will tend to effectuate the policy" of said Act. The
Federal Supreme Court held:
To summarize and conclude upon this point: Sec. 3 of
the Recovery Act is without precedent. It supplies no
standards for any trade, industry or activity. It does not
undertake to prescribe rules of conduct to be applied to
particular states of fact determined by appropriate
administrative procedure. Instead of prescribing rules of
conduct, it authorizes the making of codes to prescribe
them. For that legislative undertaking, Sec. 3 sets up no
standards, aside from the statement of the general aims
of rehabilitation, correction and expansion described in
Sec. 1. In view of the scope of that broad declaration,
and of the nature of the few restrictions that are
imposed, the discretion of the President in approving or
prescribing codes, and thus enacting laws for the
government of trade and industry throughout the
country, is virtually unfettered. We think that the code
making authority thus conferred is an unconstitutional
delegation of legislative power.
If the term "unfair competition" is so broad as to vest in the
President a discretion that is "virtually unfettered." and,
consequently, tantamount to a delegation of legislative power,
it is obvious that "public welfare," which has even a broader
connotation, leads to the same result. In fact, if the validity of
the delegation of powers made in Section 68 were upheld, there
would no longer be any legal impediment to a statutory grant of
authority to the President to do anything which, in his opinion,
may be required by public welfare or public interest. Such grant
of authority would be a virtual abdication of the powers of
Congress in favor of the Executive, and would bring about a
total collapse of the democratic system established by our
Constitution, which it is the special duty and privilege of this
Court to uphold.
It may not be amiss to note that the executive orders in question
were issued after the legislative bills for the creation of the
municipalities involved in this case had failed to pass Congress.
A better proof of the fact that the issuance of said executive
orders entails the exercise of purely legislative functions can
hardly be given.
Again, Section 10 (1) of Article VII of our fundamental law
ordains:
The President shall have control of all the executive
departments, bureaus, or offices, exercise general
supervision over all local governments as may be
provided by law, and take care that the laws be
faithfully executed.
The power of control under this provision implies the right of
the President to interfere in the exercise of such discretion as
may be vested by law in the officers of the executive
departments, bureaus, or offices of the national government, as
well as to act in lieu of such officers. This power is denied by the
Constitution to the Executive, insofar as local governments are
concerned. With respect to the latter, the fundamental law
permits him to wield no more authority than that of checking
whether said local governments or the officers thereof perform
their duties as provided by statutory enactments. Hence, the
President cannot interfere with local governments, so long as
the same or its officers act Within the scope of their authority.
He may not enact an ordinance which the municipal council has
failed or refused to pass, even if it had thereby violated a duty
imposed thereto by law, although he may see to it that the
corresponding provincial officials take appropriate disciplinary
action therefor. Neither may he vote, set aside or annul an
ordinance passed by said council within the scope of its
jurisdiction, no matter how patently unwise it may be. He may
not even suspend an elective official of a regular municipality or
take any disciplinary action against him, except on appeal from
a decision of the corresponding provincial board.5
Upon the other hand if the President could create a
municipality, he could, in effect, remove any of its officials, by
creating a new municipality and including therein the barrio in
which the official concerned resides, for his office would
thereby become vacant.6 Thus, by merely brandishing the
power to create a new municipality (if he had it), without
actually creating it, he could compel local officials to submit to
his dictation, thereby, in effect, exercising over them the power
of control denied to him by the Constitution.
Then, also, the power of control of the President over executive
departments, bureaus or offices implies no more than the
authority to assume directly the functions thereof or to
interfere in the exercise of discretion by its officials.
Manifestly, such control does not include the authority either to
abolish an executive department or bureau, or to create a new
one. As a consequence, the alleged power of the President to
create municipal corporations would necessarily connote the
exercise by him of an authority even greater than that of control
which he has over the executive departments, bureaus or
offices. In other words, Section 68 of the Revised Administrative
Code does not merely fail to comply with the constitutional
mandate above quoted. Instead of giving the President less
power over local governments than that vested in him over the
executive departments, bureaus or offices, it reverses the
process and does the exact opposite, by conferring upon
him more power over municipal corporations than that which
he has over said executive departments, bureaus or offices.
In short, even if it did entail an undue delegation of legislative
powers, as it certainly does, said Section 68, as part of the
Revised Administrative Code, approved on March 10, 1917,
must be deemed repealed by the subsequent adoption of the
Constitution, in 1935, which is utterly incompatible and WHEREFORE, the Executive Orders in question are hereby
inconsistent with said statutory enactment.7 declared null and void ab initio and the respondent
permanently restrained from passing in audit any expenditure
There are only two (2) other points left for consideration, of public funds in implementation of said Executive Orders or
namely, respondent's claim (a) that "not all the proper parties" any disbursement by the municipalities above referred to. It is
— referring to the officers of the newly created municipalities so ordered.
— "have been impleaded in this case," and (b) that "the present
petition is premature."
As regards the first point, suffice it to say that the records do
not show, and the parties do not claim, that the officers of any
of said municipalities have been appointed or elected and
assumed office. At any rate, the Solicitor General, who has
appeared on behalf of respondent Auditor General, is the
officer authorized by law "to act and represent the Government
of the Philippines, its offices and agents, in any official
investigation, proceeding or matter requiring the services of a
lawyer" (Section 1661, Revised Administrative Code), and, in
connection with the creation of the aforementioned
municipalities, which involves a political, not proprietary,
function, said local officials, if any, are mere agents or
representatives of the national government. Their interest in
the case at bar has, accordingly, been, in effect, duly
represented.8
With respect to the second point, respondent alleges that he
has not as yet acted on any of the executive order & in question
and has not intimated how he would act in connection
therewith. It is, however, a matter of common, public
knowledge, subject to judicial cognizance, that the President
has, for many years, issued executive orders creating municipal
corporations and that the same have been organized and in
actual operation, thus indicating, without peradventure of
doubt, that the expenditures incidental thereto have been
sanctioned, approved or passed in audit by the General Auditing
Office and its officials. There is no reason to believe, therefore,
that respondent would adopt a different policy as regards the
new municipalities involved in this case, in the absence of an
allegation to such effect, and none has been made by him.
G.R. No. L-57883 March 12, 1982
GUALBERTO J. DE LA LLANA Presiding Judge, Branch II of the
City Court of Olongapo, petitioners,
vs.
MANUEL ALBA, Minister of Budget, Respondents.
FERNANDO, C.J.:
This Court, pursuant to its grave responsibility of passing upon
the validity of any executive or legislative act in an appropriate
cases, has to resolve the crucial issue of the constitutionality of
Batas Pambansa Blg. 129, entitled "An act reorganizing the
Judiciary, Appropriating Funds Therefor and for Other
Purposes." The task of judicial review, aptly characterized as
exacting and delicate, is never more so than when a conceded
legislative power, that of judicial reorganization, 1 may possibly
collide with the time-honored principle of the independence of
the judiciary 2 as protected and safeguarded by this
constitutional provision: "The Members of the Supreme Court
and judges of inferior courts shall hold office during good
behavior until they reach the age of seventy years or become
incapacitated to discharge the duties of their office. The
Supreme Court shall have the power to discipline judges of
inferior courts and, by a vote of at least eight Members, order
their dismissal." 3 For the assailed legislation mandates that
Justices and judges of inferior courts from the Court of Appeals
to municipal circuit courts, except the occupants of the
Sandiganbayan and the Court of Tax Appeals, unless appointed
to the inferior courts established by such Act, would be
considered separated from the judiciary. It is the termination of
their incumbency that for petitioners justifies a suit of this
character, it being alleged that thereby the security of tenure
provision of the Constitution has been ignored and disregarded.
That is the fundamental issue raised in this proceeding,
erroneously entitled Petition for Declaratory Relief and/or for
Prohibition 4 considered by this Court as an action for prohibited
petition, seeking to enjoin respondent Minister of the Budget,
respondent Chairman of the Commission on Audit, and
respondent Minister of Justice from taking any action
implementing Batas Pambansa Blg. 129. Petitioners 5 sought to
bolster their claim by imputing lack of good faith in its
enactment and characterizing as an undue delegation of
legislative power to the President his authority to fix the
compensation and allowances of the Justices and judges
thereafter appointed and the determination of the date when
the reorganization shall be deemed completed. In the very
comprehensive and scholarly Answer of Solicitor General
Estelito P. Mendoza, 6 it was pointed out that there is no valid
justification for the attack on the constitutionality of this
statute, it being a legitimate exercise of the power vested in the
Batasang Pambansa to reorganize the judiciary, the allegations
of absence of good faith as well as the attack on the
independence of the judiciary being unwarranted and devoid of
any support in law. A Supplemental Answer was likewise filed
on October 8, 1981, followed by a Reply of petitioners on
October 13. After the hearing in the morning and afternoon of
October 15, in which not only petitioners and respondents were
heard through counsel but also the amici curiae, 7 and
thereafter submission of the minutes of the proceeding on the
debate on Batas Pambansa Blg. 129, this petition was deemed
submitted for decision. The importance of the crucial question
raised called for intensive and rigorous study of all the legal
aspects of the case. After such exhaustive deliberation in
several sessions, the exchange of views being supplemented by
memoranda from the members of the Court, it is our opinion
and so hold that Batas Pambansa Blg. 129 is not
unconstitutional.
1. The argument as to the lack of standing of petitioners is easily
resolved. As far as Judge de la Llana is concerned, he certainly
falls within the principle set forth in Justice Laurel's opinion
in People v. Vera. 8 Thus: "The unchallenged rule is that the
person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its
enforcement." 9 The other petitioners as members of the bar
and officers of the court cannot be considered as devoid of "any
personal and substantial interest" on the matter. There is
relevance to this excerpt from a separate opinion in Aquino, Jr.
v. Commission on Elections: 10 "Then there is the attack on the
standing of petitioners, as vindicating at most what they
consider a public right and not protecting their rights as
individuals. This is to conjure the specter of the public right
dogma as an inhibition to parties intent on keeping public
officials staying on the path of constitutionalism. As was so well
put by Jaffe: 'The protection of private rights is an essential
constituent of public interest and, conversely, without a well-
ordered state there could be no enforcement of private rights.
Private and public interests are, both in substantive and
procedural sense, aspects of the totality of the legal order.'
Moreover, petitioners have convincingly shown that in their
capacity as taxpayers, their standing to sue has been amply
demonstrated. There would be a retreat from the liberal
approach followed in Pascual v. Secretary of Public
Works, foreshadowed by the very decision of People v.
Vera where the doctrine was first fully discussed, if we act
differently now. I do not think we are prepared to take that
step. Respondents, however, would hark back to the American
Supreme Court doctrine in Mellon v. Frothingham with their
claim that what petitioners possess 'is an interest which is
shared in common by other people and is comparatively so
minute and indeterminate as to afford any basis and assurance
that the judicial process can act on it.' That is to speak in the
language of a bygone era even in the United States. For as Chief
Justice Warren clearly pointed out in the later case of Flast v.
Cohen, the barrier thus set up if not breached has definitely
been lowered." 11
2. The imputation of arbitrariness to the legislative body in the
enactment of Batas Pambansa Blg. 129 to demonstrate lack of
good faith does manifest violence to the facts. Petitioners
should have exercised greater care in informing themselves as
to its antecedents. They had laid themselves open to the
accusation of reckless disregard for the truth, On August 7,
1980, a Presidential Committee on Judicial Reorganization was
organized. 12 This Executive Order was later amended by
Executive Order No. 619-A., dated September 5 of that year. It
clearly specified the task assigned to it: "1. The Committee shall
formulate plans on the reorganization of the Judiciary which
shall be submitted within seventy (70) days from August 7, 1980
to provide the President sufficient options for the
reorganization of the entire Judiciary which shall embrace all
lower courts, including the Court of Appeals, the Courts of First
Instance, the City and Municipal Courts, and all Special Courts,
but excluding the Sandigan Bayan." 13 On October 17, 1980, a
Report was submitted by such Committee on Judicial
Reorganization. It began with this paragraph: "The Committee
on Judicial Reorganization has the honor to submit the following
Report. It expresses at the outset its appreciation for the
opportunity accorded it to study ways and means for what
today is a basic and urgent need, nothing less than the
restructuring of the judicial system. There are problems, both
grave and pressing, that call for remedial measures. The felt
necessities of the time, to borrow a phrase from Holmes, admit
of no delay, for if no step be taken and at the earliest
opportunity, it is not too much to say that the people's faith in
the administration of justice could be shaken. It is imperative
that there be a greater efficiency in the disposition of cases and
that litigants, especially those of modest means — much more
so, the poorest and the humblest — can vindicate their rights in
an expeditious and inexpensive manner. The rectitude and the
fairness in the way the courts operate must be manifest to all
members of the community and particularly to those whose
interests are affected by the exercise of their functions. It is to
that task that the Committee addresses itself and hopes that
the plans submitted could be a starting point for an institutional
reform in the Philippine judiciary. The experience of the
Supreme Court, which since 1973 has been empowered to
supervise inferior courts, from the Court of Appeals to the
municipal courts, has proven that reliance on improved court
management as well as training of judges for more efficient
administration does not suffice. I hence, to repeat, there is need
for a major reform in the judicial so stem it is worth noting that
it will be the first of its kind since the Judiciary Act became
effective on June 16, 1901." 14 I t went to say: "I t does not
admit of doubt that the last two decades of this century are
likely to be attended with problems of even greater complexity
and delicacy. New social interests are pressing for recognition in
the courts. Groups long inarticulate, primarily those
economically underprivileged, have found legal spokesmen and
are asserting grievances previously ignored. Fortunately, the
judicially has not proved inattentive. Its task has thus become
even more formidable. For so much grist is added to the mills of
justice. Moreover, they are likewise to be quite novel. The need
for an innovative approach is thus apparent. The national
leadership, as is well-known, has been constantly on the search
for solutions that will prove to be both acceptable and
satisfactory. Only thus may there be continued national
progress." 15 After which comes: "To be less abstract, the thrust
is on development. That has been repeatedly stressed — and
rightly so. All efforts are geared to its realization. Nor, unlike in
the past, was it to b "considered as simply the movement
towards economic progress and growth measured in terms of
sustained increases in per capita income and Gross National
Product (GNP). 16 For the New Society, its implication goes
further than economic advance, extending to "the sharing, or
more appropriately, the democratization of social and economic
opportunities, the substantiation of the true meaning of social
justice." 17 This process of modernization and change compels
the government to extend its field of activity and its scope of
operations. The efforts towards reducing the gap between the
wealthy and the poor elements in the nation call for more
regulatory legislation. That way the social justice and protection
to labor mandates of the Constitution could be effectively
implemented." 18 There is likelihood then "that some measures
deemed inimical by interests adversely affected would be
challenged in court on grounds of validity. Even if the question
does not go that far, suits may be filed concerning their
interpretation and application. ... There could be pleas for
injunction or restraining orders. Lack of success of such moves
would not, even so, result in their prompt final disposition. Thus
delay in the execution of the policies embodied in law could
thus be reasonably expected. That is not conducive to progress
in development." 19 For, as mentioned in such Report, equally of
vital concern is the problem of clogged dockets, which "as is
well known, is one of the utmost gravity. Notwithstanding the
most determined efforts exerted by the Supreme Court,
through the leadership of both retired Chief Justice Querube
Makalintal and the late Chief Justice Fred Ruiz Castro, from the
time supervision of the courts was vested in it under the 1973
Constitution, the trend towards more and more cases has
continued." 20 It is understandable why. With the accelerated
economic development, the growth of population, the
increasing urbanization, and other similar factors, the judiciary
is called upon much oftener to resolve controversies. Thus
confronted with what appears to be a crisis situation that calls
for a remedy, the Batasang Pambansa had no choice. It had to
act, before the ailment became even worse. Time was of the
essence, and yet it did not hesitate to be duly mindful, as it
ought to be, of the extent of its coverage before enacting Batas
Pambansa Blg. 129.
3. There is no denying, therefore, the need for "institutional
reforms," characterized in the Report as "both pressing and
urgent." 21 It is worth noting, likewise, as therein pointed out,
that a major reorganization of such scope, if it were to take
place, would be the most thorough after four
generations. 22 The reference was to the basic Judiciary Act
generations . enacted in June of 1901, 23 amended in a
significant way, only twice previous to the Commonwealth.
There was, of course, the creation of the Court of Appeals in
1935, originally composed "of a Presiding Judge and ten
appellate Judges, who shall be appointed by the President of
the Philippines, with the consent of the Commission on
Appointments of the National Assembly, 24 It could "sit en
banc, but it may sit in two divisions, one of six and another of
five Judges, to transact business, and the two divisions may sit
at the same time." 25 Two years after the establishment of
independence of the Republic of the Philippines, the Judiciary
Act of 1948 26 was passed. It continued the existing system of
regular inferior courts, namely, the Court of Appeals, Courts of
First Instance, 27 the Municipal Courts, at present the City
Courts, and the Justice of the Peace Courts, now the Municipal
Circuit Courts and Municipal Courts. The membership of the
Court of Appeals has been continuously increased. 28 Under a
1978 Presidential Decree, there would be forty-five members, a
Presiding Justice and forty-four Associate Justices, with fifteen
divisions. 29 Special courts were likewise created. The first was
the Court of Tax Appeals in 1954, 30 next came the Court of
Agrarian Relations in 1955, 31 and then in the same year a Court
of the Juvenile and Domestic Relations for Manila in
1955, 32 subsequently followed by the creation of two other
such courts for Iloilo and Quezon City in 1966. 33 In 1967, Circuit
Criminal Courts were established, with the Judges having the
same qualifications, rank, compensation, and privileges as
judges of Courts of First Instance. 34
4. After the submission of such Report, Cabinet Bill No. 42,
which later became the basis of Batas Pambansa Blg. 129, was
introduced. After setting forth the background as above
narrated, its Explanatory Note continues: "Pursuant to the
President's instructions, this proposed legislation has been
drafted in accordance with the guidelines of that report with
particular attention to certain objectives of the reorganization,
to wit, the attainment of more efficiency in disposal of cases, a
reallocation of jurisdiction, and a revision of procedures which
do not tend to the proper meeting out of justice. In consultation
with, and upon a consensus of, the governmental and
parliamentary leadership, however, it was felt that some
options set forth in the Report be not availed of. Instead of the
proposal to confine the jurisdiction of the intermediate
appellate court merely to appellate adjudication, the preference
has been opted to increase rather than diminish its jurisdiction
in order to enable it to effectively assist the Supreme Court. This
preference has been translated into one of the innovations in
the proposed Bill." 35 In accordance with the parliamentary
procedure, the Bill was sponsored by the Chairman of the
Committee on Justice, Human Rights and Good Government to
which it was referred. Thereafter, Committee Report No. 225
was submitted by such Committee to the Batasang Pambansa
recommending the approval with some amendments. In the
sponsorship speech of Minister Ricardo C. Puno, there was
reference to the Presidential Committee on Judicial
Reorganization. Thus: "On October 17, 1980, the Presidential
Committee on Judicial Reorganization submitted its report to
the President which contained the 'Proposed Guidelines for
Judicial Reorganization.' Cabinet Bill No. 42 was drafted
substantially in accordance with the options presented by these
guidelines. Some options set forth in the aforesaid report were
not availed of upon consultation with and upon consensus of
the government and parliamentary leadership. Moreover, some
amendments to the bill were adopted by the Committee on
Justice, Human Rights and Good Government, to which The bill
was referred, following the public hearings on the bill held in
December of 1980. The hearings consisted of dialogues with the
distinguished members of the bench and the bar who had
submitted written proposals, suggestions, and position papers
on the bill upon the invitation of the Committee on Justice,
Human Rights and Good Government." 36 Stress was laid by the
sponsor that the enactment of such Cabinet Bill would, firstly,
result in the attainment of more efficiency in the disposal of
cases. Secondly, the improvement in the quality of justice
dispensed by the courts is expected as a necessary consequence
of the easing of the court's dockets. Thirdly, the structural
changes introduced in the bill, together with the reallocation of
jurisdiction and the revision of the rules of procedure, are
designated to suit the court system to the exigencies of the
present day Philippine society, and hopefully, of the foreseeable
future." 37 it may be observed that the volume containing the
minutes of the proceedings of the Batasang Pambansa show
that 590 pages were devoted to its discussion. It is quite
obvious that it took considerable time and effort as well as
exhaustive study before the act was signed by the President on
August 14, 1981. With such a background, it becomes quite
manifest how lacking in factual basis is the allegation that its
enactment is tainted by the vice of arbitrariness. What appears
undoubted and undeniable is the good faith that characterized
its enactment from its inception to the affixing of the
Presidential signature.
5. Nothing is better settled in our law than that the abolition of
an office within the competence of a legitimate body if done in
good faith suffers from no infirmity. The ponencia of Justice
J.B.L. Reyes in Cruz v. Primicias, Jr. 38 reiterated such a doctrine:
"We find this point urged by respondents, to be without merit.
No removal or separation of petitioners from the service is here
involved, but the validity of the abolition of their offices. This is
a legal issue that is for the Courts to decide. It is well-known
rule also that valid abolition of offices is neither removal nor
separation of the incumbents. ... And, of course, if the abolition
is void, the incumbent is deemed never to have ceased to hold
office. The preliminary question laid at rest, we pass to the
merits of the case. As well-settled as the rule that the abolition
of an office does not amount to an illegal removal of its
incumbent is the principle that, in order to be valid, the
abolition must be made in good faith." 39 The above excerpt was
quoted with approval in Bendanillo, Sr. v. Provincial
Governor, 40 two earlier cases enunciating a similar doctrine
having preceded it. 41 As with the offices in the other branches
of the government, so it is with the judiciary. The test remains
whether the abolition is in good faith. As that element is
conspicuously present in the enactment of Batas Pambansa Blg.
129, then the lack of merit of this petition becomes even more
apparent. The concurring opinion of Justice Laurel in Zandueta
v. De la Costa 42 cannot be any clearer. This is a quo warranto
proceeding filed by petitioner, claiming that he, and not
respondent, was entitled to he office of judge of the Fifth
Branch of the Court of First Instance of Manila. There was a
Judicial Reorganization Act in 1936, 43 a year after the
inauguration of the Commonwealth, amending the
Administrative Code to organize courts of original jurisdiction
known as the Courts of First Instance Prior to such statute,
petitioner was the incumbent of such branch. Thereafter, he
received an ad interim appointment, this time to the Fourth
Judicial District, under the new legislation. Unfortunately for
him, the Commission on Appointments of then National
Assembly disapproved the same, with respondent being
appointed in his place. He contested the validity of the Act
insofar as it resulted in his being forced to vacate his position
This Court did not rule squarely on the matter. His petition was
dismissed on the ground of estoppel. Nonetheless, the separate
concurrence of Justice Laurel in the result reached, to repeat,
reaffirms in no uncertain terms the standard of good faith to
preclude any doubt as to the abolition of an inferior court, with
due recognition of the security of tenure guarantee. Thus: " I am
of the opinion that Commonwealth Act No. 145 in so far as it
reorganizes, among other judicial districts, the Ninth Judicial
District, and establishes an entirely new district comprising
Manila and the provinces of Rizal and Palawan, is valid and
constitutional. This conclusion flows from the fundamental
proposition that the legislature may abolish courts inferior to
the Supreme Court and therefore may reorganize them
territorially or otherwise thereby necessitating new
appointments and commissions. Section 2, Article VIII of the
Constitution vests in the National Assembly the power to
define, prescribe and apportion the jurisdiction of the various
courts, subject to certain limitations in the case of the Supreme
Court. It is admitted that section 9 of the same article of the
Constitution provides for the security of tenure of all the judges.
The principles embodied in these two sections of the same
article of the Constitution must be coordinated and
harmonized. A mere enunciation of a principle will not decide
actual cases and controversies of every sort. (Justice Holmes in
Lochner vs. New York, 198 U.S., 45; 49 Law. ed; 937)" 44 justice
Laurel continued: "I am not insensible to the argument that the
National Assembly may abuse its power and move deliberately
to defeat the constitutional provision guaranteeing security of
tenure to all judges, But, is this the case? One need not share
the view of Story, Miller and Tucker on the one hand, or the
opinion of Cooley, Watson and Baldwin on the other, to realize
that the application of a legal or constitutional principle is
necessarily factual and circumstantial and that fixity of principle
is the rigidity of the dead and the unprogressive. I do say, and
emphatically, however, that cases may arise where the violation
of the constitutional provision regarding security of tenure is
palpable and plain, and that legislative power of reorganization
may be sought to cloak an unconstitutional and evil purpose.
When a case of that kind arises, it will be the time to make the
hammer fall and heavily. But not until then. I am satisfied that,
as to the particular point here discussed, the purpose was the
fulfillment of what was considered a great public need by the
legislative department and that Commonwealth Act No. 145
was not enacted purposely to affect adversely the tenure of
judges or of any particular judge. Under these circumstances, I
am for sustaining the power of the legislative department under
the Constitution. To be sure, there was greater necessity for
reorganization consequent upon the establishment of the new
government than at the time Acts Nos. 2347 and 4007 were
approved by the defunct Philippine Legislature, and although in
the case of these two Acts there was an express provision
providing for the vacation by the judges of their offices whereas
in the case of Commonwealth Act No. 145 doubt is engendered
by its silence, this doubt should be resolved in favor of the valid
exercise of the legislative power." 45
6. A few more words on the question of abolition. In the above-
cited opinion of Justice Laurel in Zandueta, reference was made
to Act No. 2347 46 on the reorganization of the Courts of First
Instance and to Act No. 4007 47 on the reorganization of all
branches of the government, including the courts of first
instance. In both of them, the then Courts of First Instance were
replaced by new courts with the same appellation. As Justice
Laurel pointed out, there was no question as to the fact of
abolition. He was equally categorical as to Commonwealth Act
No. 145, where also the system of the courts of first instance
was provided for expressly. It was pointed out by Justice Laurel
that the mere creation of an entirely new district of the same
court is valid and constitutional. such conclusion flowing "from
the fundamental proposition that the legislature may abolish
courts inferior to the Supreme Court and therefore may
reorganize them territorially or otherwise thereby necessitating
new appointments and commissions." 48 The challenged statute
creates an intermediate appellate court, 49 regional trial
courts, 50 metropolitan trial courts of the national capital
region, 51 and other metropolitan trial courts, 52 municipal trial
courts in cities, 53 as well as in municipalities, 54 and municipal
circuit trial courts. 55 There is even less reason then to doubt the
fact that existing inferior courts were abolished. For the
Batasang Pambansa, the establishment of such new inferior
courts was the appropriate response to the grave and urgent
problems that pressed for solution. Certainly, there could be
differences of opinion as to the appropriate remedy. The choice,
however, was for the Batasan to make, not for this Court, which
deals only with the question of power. It bears mentioning that
in Brillo v. Eñage 56 this Court, in an unanimous opinion penned
by the late Justice Diokno, citing Zandueta v. De la Costa, ruled:
"La segunda question que el recurrrido plantea es que la Carta
de Tacloban ha abolido el puesto. Si efectivamente ha sido
abolido el cargo, entonces ha quedado extinguido el derecho de
recurente a ocuparlo y a cobrar el salario correspodiente. Mc
Culley vs. State, 46 LRA, 567. El derecho de un juez de
desempenarlo hasta los 70 años de edad o se incapacite no
priva al Congreso de su facultad de abolir, fusionar o
reorganizar juzgados no constitucionales." 57 Nonetheless, such
well-established principle was not held applicable to the
situation there obtaining, the Charter of Tacloban City creating
a city court in place of the former justice of the peace court.
Thus: "Pero en el caso de autos el Juzgado de Tacloban no ha
sido abolido. Solo se le ha cambiado el nombre con el cambio
de forma del gobierno local." 58 The present case is anything but
that. Petitioners did not and could not prove that the
challenged statute was not within the bounds of legislative
authority.
7. This opinion then could very well stop at this point. The
implementation of Batas Pambansa Blg. 129, concededly a task
incumbent on the Executive, may give rise, however, to
questions affecting a judiciary that should be kept independent.
The all-embracing scope of the assailed legislation as far as all
inferior courts from the Courts of Appeals to municipal courts
are concerned, with the exception solely of the Sandiganbayan
and the Court of Tax Appeals 59 gave rise, and understandably
so, to misgivings as to its effect on such cherished Ideal. The
first paragraph of the section on the transitory provision reads:
"The provisions of this Act shall be immediately carried out in
accordance with an Executive Order to be issued by the
President. The Court of Appeals, the Courts of First Instance, the
Circuit Criminal Courts, the Juvenile and Domestic Relations
Courts, the Courts of Agrarian Relations, the City Courts, the
Municipal Courts, and the Municipal Circuit Courts shall
continue to function as presently constituted and organized,
until the completion of the reorganization provided in this Act
as declared by the President. Upon such declaration, the said
courts shall be deemed automatically abolished and the
incumbents thereof shall cease to hold the office." 60 There is all
the more reason then why this Court has no choice but to
inquire further into the allegation by petitioners that the
security of tenure provision, an assurance of a judiciary free
from extraneous influences, is thereby reduced to a barren form
of words. The amended Constitution adheres even more clearly
to the long-established tradition of a strong executive that
antedated the 1935 Charter. As noted in the work of former
Vice-Governor Hayden, a noted political scientist, President
Claro M. Recto of the 1934 Convention, in his closing address, in
stressing such a concept, categorically spoke of providing "an
executive power which, subject to the fiscalization of the
Assembly, and of public opinion, will not only know how to
govern, but will actually govern, with a firm and steady hand,
unembarrassed by vexatious interferences by other
departments, or by unholy alliances with this and that social
group." 61 The above excerpt was cited with approval by Justice
Laurel in Planas v. Gil. 62 Moreover, under the 1981
Amendments, it may be affirmed that once again the principle
of separation of powers, to quote from the same jurist
as ponente in Angara v. Electoral Commission, 63 "obtains not
through express provision but by actual division." 64 The
president, under Article VII, shall be the head of state and chief
executive of the Republic of the Philippines." 65 Moreover, it is
equally therein expressly provided that all the powers he
possessed under the 1935 Constitution are once again vested in
him unless the Batasang Pambansa provides
otherwise." 66 Article VII of the 1935 Constitution speaks
categorically: "The Executive power shall be vested in a
President of the Philippines." 67 As originally framed, the 1973
Constitution created the position of President as the "symbolic
head of state." 68 In addition, there was a provision for a Prime
Minister as the head of government exercising the executive
power with the assistance of the Cabinet 69 Clearly, a modified
parliamentary system was established. In the light of the 1981
amendments though, this Court in Free Telephone Workers
Union v. Minister of Labor 70 could state: "The adoption of
certain aspects of a parliamentary system in the amended
Constitution does not alter its essentially presidential
character." 71 The retention, however, of the position of the
Prime Minister with the Cabinet, a majority of the members of
which shall come from the regional representatives of the
Batasang Pambansa and the creation of an Executive
Committee composed of the Prime Minister as Chairman and
not more than fourteen other members at least half of whom
shall be members of the Batasang Pambansa, clearly indicate
the evolving nature of the system of government that is now
operative. 72 What is equally apparent is that the strongest ties
bind the executive and legislative departments. It is likewise
undeniable that the Batasang Pambansa retains its full authority
to enact whatever legislation may be necessary to carry out
national policy as usually formulated in a caucus of the majority
party. It is understandable then why in Fortun v. Labang 73 it was
stressed that with the provision transferring to the Supreme
Court administrative supervision over the Judiciary, there is a
greater need "to preserve unimpaired the independence of the
judiciary, especially so at present, where to all intents and
purposes, there is a fusion between the executive and the
legislative branches." 74
8. To be more specific, petitioners contend that the abolition of
the existing inferior courts collides with the security of tenure
enjoyed by incumbent Justices and judges under Article X,
Section 7 of the Constitution. There was a similar provision in
the 1935 Constitution. It did not, however, go as far as
conferring on this Tribunal the power to supervise
administratively inferior courts. 75 Moreover, this Court is em
powered "to discipline judges of inferior courts and, by a vote of
at least eight members, order their dismissal." 76 Thus it
possesses the competence to remove judges. Under the
Judiciary Act, it was the President who was vested with such
power. 77 Removal is, of course, to be distinguished from
termination by virtue of the abolition of the office. There can be
no tenure to a non-existent office. After the abolition, there is in
law no occupant. In case of removal, there is an office with an
occupant who would thereby lose his position. It is in that sense
that from the standpoint of strict law, the question of any
impairment of security of tenure does not arise. Nonetheless,
for the incumbents of inferior courts abolished, the effect is one
of separation. As to its effect, no distinction exists between
removal and the abolition of the office. Realistically, it is devoid
of significance. He ceases to be a member of the judiciary. In
the implementation of the assailed legislation, therefore, it
would be in accordance with accepted principles of
constitutional construction that as far as incumbent justices and
judges are concerned, this Court be consulted and that its view
be accorded the fullest consideration. No fear need be
entertained that there is a failure to accord respect to the basic
principle that this Court does not render advisory opinions. No
question of law is involved. If such were the case, certainly this
Court could not have its say prior to the action taken by either
of the two departments. Even then, it could do so but only by
way of deciding a case where the matter has been put in issue.
Neither is there any intrusion into who shall be appointed to the
vacant positions created by the reorganization. That remains in
the hands of the Executive to whom it properly belongs. There
is no departure therefore from the tried and tested ways of
judicial power, Rather what is sought to be achieved by this
liberal interpretation is to preclude any plausibility to the charge
that in the exercise of the conceded power of reorganizing tulle
inferior courts, the power of removal of the present incumbents
vested in this Tribunal is ignored or disregarded. The challenged
Act would thus be free from any unconstitutional taint, even
one not readily discernidble except to those predisposed to
view it with distrust. Moreover, such a construction would be in
accordance with the basic principle that in the choice of
alternatives between one which would save and another which
would invalidate a statute, the former is to be
preferred. 78 There is an obvious way to do so. The principle that
the Constitution enters into and forms part of every act to avoid
any constitutional taint must be applied Nuñez v.
Sandiganbayan, 79 promulgated last January, has this relevant
excerpt: "It is true that other Sections of the Decree could have
been so worded as to avoid any constitutional objection. As of
now, however, no ruling is called for. The view is given
expression in the concurring and dissenting opinion of Justice
Makasiar that in such a case to save the Decree from the direct
fate of invalidity, they must be construed in such a way as to
preclude any possible erosion on the powers vested in this
Court by the Constitution. That is a proposition too plain to be
committed. It commends itself for approval." 80 Nor would such
a step be unprecedented. The Presidential Decree constituting
Municipal Courts into Municipal Circuit Courts, specifically
provides: "The Supreme Court shall carry out the provisions of
this Decree through implementing orders, on a province-to-
province basis." 81 It is true there is no such provision in this Act,
but the spirit that informs it should not be ignored in the
Executive Order contemplated under its Section 44. 82 Thus
Batas Pambansa Blg. 129 could stand the most rigorous test of
constitutionality. 83
9. Nor is there anything novel in the concept that this Court is
called upon to reconcile or harmonize constitutional provisions.
To be specific, the Batasang Pambansa is expressly vested with
the authority to reorganize inferior courts and in the process to
abolish existing ones. As noted in the preceding paragraph, the
termination of office of their occupants, as a necessary
consequence of such abolition, is hardly distinguishable from
the practical standpoint from removal, a power that is now
vested in this Tribunal. It is of the essence of constitutionalism
to assure that neither agency is precluded from acting within
the boundaries of its conceded competence. That is why it has
long been well-settled under the constitutional system we have
adopted that this Court cannot, whenever appropriate, avoid
the task of reconciliation. As Justice Laurel put it so well in the
previously cited Angara decision, while in the main, "the
Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the
judicial departments of the government, the overlapping and
interlacing of functions and duties between the several
departments, however, sometimes makes it hard to say just
where the one leaves off and the other begins." 84 It is well to
recall another classic utterance from the same jurist, even more
emphatic in its affirmation of such a view, moreover buttressed
by one of those insights for which Holmes was so famous "The
classical separation of government powers, whether viewed in
the light of the political philosophy of Aristotle, Locke, or
Motesquieu or of the postulations of Mabini, Madison, or
Jefferson, is a relative theory of government. There is more
truism and actuality in interdependence than in independence
and separation of powers, for as observed by Justice Holmes in
a case of Philippine origin, we cannot lay down 'with
mathematical precision and divide the branches into water-tight
compartments' not only because 'the great ordinances of the
Constitution do not establish and divide fields of black and
white but also because 'even the more specific of them are
found to terminate in a penumbra shading gradually from one
extreme to the other.'" 85 This too from Justice Tuazon, likewise
expressing with force and clarity why the need for reconciliation
or balancing is well-nigh unavodiable under the fundamental
principle of separation of powers: "The constitutional structure
is a complicated system, and overlappings of governmental
functions are recognized, unavoidable, and inherent necessities
of governmental coordination." 86 In the same way that the
academe has noted the existence in constitutional litigation of
right versus right, there are instances, and this is one of them,
where, without this attempt at harmonizing the provisions in
question, there could be a case of power against power. That
we should avoid.
10. There are other objections raised but they pose no difficulty.
Petitioners would characterize as an undue delegation of
legislative power to the President the grant of authority to fix
the compensation and the allowances of the Justices and judges
thereafter appointed. A more careful reading of the challenged
Batas Pambansa Blg. 129 ought to have cautioned them against
raising such an issue. The language of the statute is quite clear.
The questioned provisions reads as follows: "Intermediate
Appellate Justices, Regional Trial Judges, Metropolitan Trial
Judges, municipal Trial Judges, and Municipal Circuit Trial
Judges shall receive such receive such compensation and
allowances as may be authorized by the President along the
guidelines set forth in Letter of Implementation No. 93 pursuant
to Presidential Decree No. 985, as amended by Presidential
Decree No. 1597." 87 The existence of a standard is thus clear.
The basic postulate that underlies the doctrine of non-
delegation is that it is the legislative body which is entrusted
with the competence to make laws and to alter and repeal
them, the test being the completeness of the statue in all its
terms and provisions when enacted. As pointed out in Edu v.
Ericta: 88 "To avoid the taint of unlawful delegation, there must
be a standard, which implies at the very least that the
legislature itself determines matters of principle and lays down
fundamental policy. Otherwise, the charge of complete
abdication may be hard to repel. A standard thus defines
legislative policy, marks its limits, maps out its boundaries and
specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be
effected. It is the criterion by which legislative purpose may be
carried out. Thereafter, the executive or administrative office
designated may in pursuance of the above guidelines
promulgate supplemental rules and regulations. The standard
may be either express or implied. If the former, the non-
delegation objection is easily met. The standard though does
not have to be spelled out specifically. It could be implied from
the policy and purpose of the act considered as a whole." 89 The
undeniably strong links that bind the executive and legislative
departments under the amended Constitution assure that the
framing of policies as well as their implementation can be
accomplished with unity, promptitude, and efficiency. There is
accuracy, therefore, to this observation in the Free Telephone
Workers Union decision: "There is accordingly more receptivity
to laws leaving to administrative and executive agencies the
adoption of such means as may be necessary to effectuate a
valid legislative purpose. It is worth noting that a highly-
respected legal scholar, Professor Jaffe, as early as 1947, could
speak of delegation as the 'dynamo of modern
government.'" 90 He warned against a "restrictive approach"
which could be "a deterrent factor to much-needed
legislation." 91 Further on this point from the same opinion"
"The spectre of the non-delegation concept need not haunt,
therefore, party caucuses, cabinet sessions or legislative
chambers." 92 Another objection based on the absence in the
statue of what petitioners refer to as a "definite time frame
limitation" is equally bereft of merit. They ignore the categorical
language of this provision: "The Supreme Court shall submit to
the President, within thirty (30) days from the date of the
effectivity of this act, a staffing pattern for all courts constituted
pursuant to this Act which shall be the basis of the
implementing order to be issued by the President in accordance
with the immediately succeeding section." 93 The first sentence
of the next section is even more categorical: "The provisions of
this Act shall be immediately carried out in accordance with an
Executive Order to be issued by the President." 94 Certainly
petitioners cannot be heard to argue that the President is
insensible to his constitutional duty to take care that the laws
be faithfully executed. 95 In the meanwhile, the existing inferior
courts affected continue functioning as before, "until the
completion of the reorganization provided in this Act as
declared by the President. Upon such declaration, the said
courts shall be deemed automatically abolished and the
incumbents thereof shall cease to hold office." 96 There is no
ambiguity. The incumbents of the courts thus automatically
abolished "shall cease to hold office." No fear need be
entertained by incumbents whose length of service, quality of
performance, and clean record justify their being named
anew, 97 in legal contemplation without any interruption in the
continuity of their service. 98 It is equally reasonable to assume
that from the ranks of lawyers, either in the government
service, private practice, or law professors will come the new
appointees. In the event that in certain cases a little more time
is necessary in the appraisal of whether or not certain
incumbents deserve reappointment, it is not from their
standpoint undesirable. Rather, it would be a reaffirmation of
the good faith that will characterize its implementation by the
Executive. There is pertinence to this observation of Justice
Holmes that even acceptance of the generalization that courts
ordinarily should not supply omissions in a law, a generalization
qualified as earlier shown by the principle that to save a statute
that could be done, "there is no canon against using common
sense in construing laws as saying what they obviously
mean." 99 Where then is the unconstitutional flaw
11. On the morning of the hearing of this petition on September
8, 1981, petitioners sought to have the writer of this opinion
and Justices Ramon C. Aquino and Ameurfina Melencio-Herrera
disqualified because the first-named was the chairman and the
other two, members of the Committee on Judicial
Reorganization. At the hearing, the motion was denied. It was
made clear then and there that not one of the three members
of the Court had any hand in the framing or in the discussion of
Batas Pambansa Blg. 129. They were not consulted. They did
not testify. The challenged legislation is entirely the product of
the efforts of the legislative body. 100 Their work was limited, as
set forth in the Executive Order, to submitting alternative plan
for reorganization. That is more in the nature of scholarly
studies. That the undertook. There could be no possible
objection to such activity. Ever since 1973, this Tribunal has had
administrative supervision over interior courts. It has had the
opportunity to inform itself as to the way judicial business is
conducted and how it may be improved. Even prior to the 1973
Constitution, it is the recollection of the writer of this opinion
that either the then Chairman or members of the Committee on
Justice of the then Senate of the Philippines 101 consulted
members of the Court in drafting proposed legislation affecting
the judiciary. It is not inappropriate to cite this excerpt from an
article in the 1975 Supreme Court Review: "In the twentieth
century the Chief Justice of the United States has played a
leading part in judicial reform. A variety of conditions have been
responsible for the development of this role, and foremost
among them has been the creation of explicit institutional
structures designed to facilitate reform." 102 Also: "Thus the
Chief Justice cannot avoid exposure to and direct involvement
in judicial reform at the federal level and, to the extent issues of
judicial federalism arise, at the state level as well." 103
12. It is a cardinal article of faith of our constitutional regime
that it is the people who are endowed with rights, to secure
which a government is instituted. Acting as it does through
public officials, it has to grant them either expressly or impliedly
certain powers. Those they exercise not for their own benefit
but for the body politic. The Constitution does not speak in the
language of ambiguity: "A public office is a public trust." 104 That
is more than a moral adjuration It is a legal imperative. The law
may vest in a public official certain rights. It does so to enable
them to perform his functions and fulfill his responsibilities
more efficiently. It is from that standpoint that the security of
tenure provision to assure judicial independence is to be
viewed. It is an added guarantee that justices and judges can
administer justice undeterred by any fear of reprisal or
untoward consequence. Their judgments then are even more
likely to be inspired solely by their knowledge of the law and the
dictates of their conscience, free from the corrupting influence
of base or unworthy motives. The independence of which they
are assured is impressed with a significance transcending that of
a purely personal right. As thus viewed, it is not solely for their
welfare. The challenged legislation Thus subject d to the most
rigorous scrutiny by this Tribunal, lest by lack of due care and
circumspection, it allow the erosion of that Ideal so firmly
embedded in the national consciousness There is this farther
thought to consider. independence in thought and action
necessarily is rooted in one's mind and heart. As emphasized by
former Chief Justice Paras in Ocampo v. Secretary of
Justice, 105 there is no surer guarantee of judicial independence
than the God-given character and fitness of those appointed to
the Bench. The judges may be guaranteed a fixed tenure of
office during good behavior, but if they are of such stuff as
allows them to be subservient to one administration after
another, or to cater to the wishes of one litigant after another,
the independence of the judiciary will be nothing more than a
myth or an empty Ideal. Our judges, we are confident, can be of
the type of Lord Coke, regardless or in spite of the power of
Congress — we do not say unlimited but as herein exercised —
to reorganize inferior courts." 106 That is to recall one of the
greatest Common Law jurists, who at the cost of his office made
clear that he would not just blindly obey the King's order but
"will do what becomes [him] as a judge." So it was pointed out
in the first leading case stressing the independence of the
judiciary, Borromeo v. Mariano, 107 The ponencia of Justice
Malcolm Identified good judges with "men who have a mastery
of the principles of law, who discharge their duties in
accordance with law, who are permitted to perform the duties
of the office undeterred by outside influence, and who are
independent and self-respecting human units in a judicial
system equal and coordinate to the other two departments of
government." 108 There is no reason to assume that the failure
of this suit to annul Batas Pambansa Blg. 129 would be attended
with deleterious consequences to the administration of justice.
It does not follow that the abolition in good faith of the existing
inferior courts except the Sandiganbayan and the Court of Tax
Appeals and the creation of new ones will result in a judiciary
unable or unwilling to discharge with independence its solemn
duty or one recreant to the trust reposed in it. Nor should there
be any fear that less than good faith will attend the exercise be
of the appointing power vested in the Executive. It cannot be
denied that an independent and efficient judiciary is something
to the credit of any administration. Well and truly has it been
said that the fundamental principle of separation of powers
assumes, and justifiably so, that the three departments are as
one in their determination to pursue the Ideals and aspirations
and to fulfilling the hopes of the sovereign people as expressed
in the Constitution. There is wisdom as well as validity to this
pronouncement of Justice Malcolm in Manila Electric Co. v.
Pasay Transportation Company, 109 a decision promulgated
almost half a century ago: "Just as the Supreme Court, as the
guardian of constitutional rights, should not sanction
usurpations by any other department or the government, so
should it as strictly confine its own sphere of influence to the
powers expressly or by implication conferred on it by the
Organic Act." 110 To that basic postulate underlying our
constitutional system, this Court remains committed.

WHEREFORE, the unconstitutionality of Batas Pambansa Blg.

129 not having been shown, this petition is dismissed. No costs.
G.R. No. 74457 March 20, 1987
RESTITUTO YNOT, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, respondents.
CRUZ, J.:
The essence of due process is distilled in the immortal cry of
Themistocles to Alcibiades "Strike — but hear me first!" It is this
cry that the petitioner in effect repeats here as he challenges
the constitutionality of Executive Order No. 626-A.
The said executive order reads in full as follows:
WHEREAS, the President has given orders prohibiting the
interprovincial movement of carabaos and the slaughtering of
carabaos not complying with the requirements of Executive
Order No. 626 particularly with respect to age;
WHEREAS, it has been observed that despite such orders the
violators still manage to circumvent the prohibition against
inter-provincial movement of carabaos by transporting carabeef
instead; and
WHEREAS, in order to achieve the purposes and objectives of
Executive Order No. 626 and the prohibition against
interprovincial movement of carabaos, it is necessary to
strengthen the said Executive Order and provide for the
disposition of the carabaos and carabeef subject of the
violation;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the
Constitution, do hereby promulgate the following:
SECTION 1. Executive Order No. 626 is hereby amended such
that henceforth, no carabao regardless of age, sex, physical
condition or purpose and no carabeef shall be transported from
one province to another. The carabao or carabeef transported
in violation of this Executive Order as amended shall be subject
to confiscation and forfeiture by the government, to be
distributed to charitable institutions and other similar
institutions as the Chairman of the National Meat Inspection
Commission may ay see fit, in the case of carabeef, and to
deserving farmers through dispersal as the Director of Animal
Industry may see fit, in the case of carabaos.
SECTION 2. This Executive Order shall take effect immediately.
Done in the City of Manila, this 25th day of October, in the year
of Our Lord, nineteen hundred and eighty.
(SGD.) FERDINAND E. MARCOS
President, Republic of the Philippines
The petitioner had transported six carabaos in a pump boat
from Masbate to Iloilo on January 13, 1984, when they were
confiscated by the police station commander of Barotac Nuevo,
Iloilo, for violation of the above measure. 1 The petitioner sued
for recovery, and the Regional Trial Court of Iloilo City issued a
writ of replevin upon his filing of a supersedeas bond of
P12,000.00. After considering the merits of the case, the court
sustained the confiscation of the carabaos and, since they could
no longer be produced, ordered the confiscation of the bond.
The court also declined to rule on the constitutionality of the
executive order, as raise by the petitioner, for lack of authority
and also for its presumed validity. 2
The petitioner appealed the decision to the Intermediate
Appellate Court,* 3 which upheld the trial court, ** and he has
now come before us in this petition for review on certiorari. The
thrust of his petition is that the executive order is
unconstitutional insofar as it authorizes outright confiscation of
the carabao or carabeef being transported across provincial
boundaries. His claim is that the penalty is invalid because it is
imposed without according the owner a right to be heard
before a competent and impartial court as guaranteed by due
process. He complains that the measure should not have been
presumed, and so sustained, as constitutional. There is also a
challenge to the improper exercise of the legislative power by
the former President under Amendment No. 6 of the 1973
Constitution. 4
While also involving the same executive order, the case
of Pesigan v. Angeles 5 is not applicable here. The question
raised there was the necessity of the previous publication of the
measure in the Official Gazette before it could be considered
enforceable. We imposed the requirement then on the basis of
due process of law. In doing so, however, this Court did not, as
contended by the Solicitor General, impliedly affirm the
constitutionality of Executive Order No. 626-A. That is an
entirely different matter.
This Court has declared that while lower courts should observe
a becoming modesty in examining constitutional questions, they
are nonetheless not prevented from resolving the same
whenever warranted, subject only to review by the highest
tribunal. 6 We have jurisdiction under the Constitution to
"review, revise, reverse, modify or affirm on appeal
or certiorari, as the law or rules of court may provide," final
judgments and orders of lower courts in, among others, all
cases involving the constitutionality of certain measures. 7 This
simply means that the resolution of such cases may be made in
the first instance by these lower courts.
And while it is true that laws are presumed to be constitutional,
that presumption is not by any means conclusive and in fact
may be rebutted. Indeed, if there be a clear showing of their
invalidity, and of the need to declare them so, then "will be the
time to make the hammer fall, and heavily," 8 to recall Justice
Laurel's trenchant warning. Stated otherwise, courts should not
follow the path of least resistance by simply presuming the
constitutionality of a law when it is questioned. On the contrary,
they should probe the issue more deeply, to relieve the abscess,
paraphrasing another distinguished jurist, 9 and so heal the
wound or excise the affliction. Judicial power authorizes this;
and when the exercise is demanded, there should be no shirking
of the task for fear of retaliation, or loss of favor, or popular
censure, or any other similar inhibition unworthy of the bench,
especially this Court.
The challenged measure is denominated an executive order but
it is really presidential decree, promulgating a new rule instead
of merely implementing an existing law. It was issued by
President Marcos not for the purpose of taking care that the
laws were faithfully executed but in the exercise of his
legislative authority under Amendment No. 6. It was provided
thereunder that whenever in his judgment there existed a grave
emergency or a threat or imminence thereof or whenever the
legislature failed or was unable to act adequately on any matter
that in his judgment required immediate action, he could, in
order to meet the exigency, issue decrees, orders or letters of
instruction that were to have the force and effect of law. As
there is no showing of any exigency to justify the exercise of
that extraordinary power then, the petitioner has reason,
indeed, to question the validity of the executive order.
Nevertheless, since the determination of the grounds was
supposed to have been made by the President "in his judgment,
" a phrase that will lead to protracted discussion not really
necessary at this time, we reserve resolution of this matter until
a more appropriate occasion. For the nonce, we confine
ourselves to the more fundamental question of due process.
It is part of the art of constitution-making that the provisions of
the charter be cast in precise and unmistakable language to
avoid controversies that might arise on their correct
interpretation. That is the Ideal. In the case of the due process
clause, however, this rule was deliberately not followed and the
wording was purposely kept ambiguous. In fact, a proposal to
delineate it more clearly was submitted in the Constitutional
Convention of 1934, but it was rejected by Delegate Jose P.
Laurel, Chairman of the Committee on the Bill of Rights, who
forcefully argued against it. He was sustained by the body. 10
The due process clause was kept intentionally vague so it would
remain also conveniently resilient. This was felt necessary
because due process is not, like some provisions of the
fundamental law, an "iron rule" laying down an implacable and
immutable command for all seasons and all persons. Flexibility
must be the best virtue of the guaranty. The very elasticity of
the due process clause was meant to make it adapt easily to
every situation, enlarging or constricting its protection as the
changing times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own
specific description of due process lest they confine themselves
in a legal straitjacket that will deprive them of the elbow room
they may need to vary the meaning of the clause whenever
indicated. Instead, they have preferred to leave the import of
the protection open-ended, as it were, to be "gradually
ascertained by the process of inclusion and exclusion in the
course of the decision of cases as they arise." 11 Thus, Justice
Felix Frankfurter of the U.S. Supreme Court, for example, would
go no farther than to define due process — and in so doing
sums it all up — as nothing more and nothing less than "the
embodiment of the sporting Idea of fair play." 12
When the barons of England extracted from their sovereign
liege the reluctant promise that that Crown would thenceforth
not proceed against the life liberty or property of any of its
subjects except by the lawful judgment of his peers or the law
of the land, they thereby won for themselves and their progeny
that splendid guaranty of fairness that is now the hallmark of
the free society. The solemn vow that King John made at
Runnymede in 1215 has since then resounded through the ages,
as a ringing reminder to all rulers, benevolent or base, that
every person, when confronted by the stern visage of the law, is
entitled to have his say in a fair and open hearing of his cause.
The closed mind has no place in the open society. It is part of
the sporting Idea of fair play to hear "the other side" before an
opinion is formed or a decision is made by those who sit in
judgment. Obviously, one side is only one-half of the question;
the other half must also be considered if an impartial verdict is
to be reached based on an informed appreciation of the issues
in contention. It is indispensable that the two sides complement
each other, as unto the bow the arrow, in leading to the correct
ruling after examination of the problem not from one or the
other perspective only but in its totality. A judgment based on
less that this full appraisal, on the pretext that a hearing is
unnecessary or useless, is tainted with the vice of bias or
intolerance or ignorance, or worst of all, in repressive regimes,
the insolence of power.
The minimum requirements of due process are notice and
hearing 13 which, generally speaking, may not be dispensed
with because they are intended as a safeguard against official
arbitrariness. It is a gratifying commentary on our judicial
system that the jurisprudence of this country is rich with
applications of this guaranty as proof of our fealty to the rule of
law and the ancient rudiments of fair play. We have consistently
declared that every person, faced by the awesome power of the
State, is entitled to "the law of the land," which Daniel Webster
described almost two hundred years ago in the famous
Dartmouth College Case, 14 as "the law which hears before it
condemns, which proceeds upon inquiry and renders judgment
only after trial." It has to be so if the rights of every person are
to be secured beyond the reach of officials who, out of mistaken
zeal or plain arrogance, would degrade the due process clause
into a worn and empty catchword.
This is not to say that notice and hearing are imperative in every
case for, to be sure, there are a number of admitted exceptions.
The conclusive presumption, for example, bars the admission of
contrary evidence as long as such presumption is based on
human experience or there is a rational connection between
the fact proved and the fact ultimately presumed
therefrom. 15 There are instances when the need for
expeditions action will justify omission of these requisites, as in
the summary abatement of a nuisance per se, like a mad dog on
the loose, which may be killed on sight because of the
immediate danger it poses to the safety and lives of the people.
Pornographic materials, contaminated meat and narcotic drugs
are inherently pernicious and may be summarily destroyed. The
passport of a person sought for a criminal offense may be
cancelled without hearing, to compel his return to the country
he has fled. 16 Filthy restaurants may be summarily padlocked
in the interest of the public health and bawdy houses to protect
the public morals. 17 In such instances, previous judicial hearing
may be omitted without violation of due process in view of the
nature of the property involved or the urgency of the need to
protect the general welfare from a clear and present danger.
The protection of the general welfare is the particular function
of the police power which both restraints and is restrained by
due process. The police power is simply defined as the power
inherent in the State to regulate liberty and property for the
promotion of the general welfare. 18 By reason of its function, it
extends to all the great public needs and is described as the
most pervasive, the least limitable and the most demanding of
the three inherent powers of the State, far outpacing taxation
and eminent domain. The individual, as a member of society, is
hemmed in by the police power, which affects him even before
he is born and follows him still after he is dead — from the
womb to beyond the tomb — in practically everything he does
or owns. Its reach is virtually limitless. It is a ubiquitous and
often unwelcome intrusion. Even so, as long as the activity or
the property has some relevance to the public welfare, its
regulation under the police power is not only proper but
necessary. And the justification is found in the venerable Latin
maxims, Salus populi est suprema lex and Sic utere tuo ut
alienum non laedas, which call for the subordination of
individual interests to the benefit of the greater number.
It is this power that is now invoked by the government to justify
Executive Order No. 626-A, amending the basic rule in Executive
Order No. 626, prohibiting the slaughter of carabaos except
under certain conditions. The original measure was issued for
the reason, as expressed in one of its Whereases, that "present
conditions demand that the carabaos and the buffaloes be
conserved for the benefit of the small farmers who rely on them
for energy needs." We affirm at the outset the need for such a
measure. In the face of the worsening energy crisis and the
increased dependence of our farms on these traditional beasts
of burden, the government would have been remiss, indeed, if
it had not taken steps to protect and preserve them.
A similar prohibition was challenged in United States v.
Toribio, 19 where a law regulating the registration, branding
and slaughter of large cattle was claimed to be a deprivation of
property without due process of law. The defendant had been
convicted thereunder for having slaughtered his own carabao
without the required permit, and he appealed to the Supreme
Court. The conviction was affirmed. The law was sustained as a
valid police measure to prevent the indiscriminate killing of
carabaos, which were then badly needed by farmers. An
epidemic had stricken many of these animals and the reduction
of their number had resulted in an acute decline in agricultural
output, which in turn had caused an incipient famine.
Furthermore, because of the scarcity of the animals and the
consequent increase in their price, cattle-rustling had spread
alarmingly, necessitating more effective measures for the
registration and branding of these animals. The Court held that
the questioned statute was a valid exercise of the police power
and declared in part as follows:
To justify the State in thus interposing its authority in
behalf of the public, it must appear, first, that the
interests of the public generally, as distinguished from
those of a particular class, require such interference;
and second, that the means are reasonably necessary
for the accomplishment of the purpose, and not unduly
oppressive upon individuals. ...
From what has been said, we think it is clear that the
enactment of the provisions of the statute under
consideration was required by "the interests of the
public generally, as distinguished from those of a
particular class" and that the prohibition of the
slaughter of carabaos for human consumption, so long
as these animals are fit for agricultural work or draft
purposes was a "reasonably necessary" limitation on
private ownership, to protect the community from the
loss of the services of such animals by their slaughter by
improvident owners, tempted either by greed of
momentary gain, or by a desire to enjoy the luxury of
animal food, even when by so doing the productive
power of the community may be measurably and
dangerously affected.
In the light of the tests mentioned above, we hold with the
Toribio Case that the carabao, as the poor man's tractor, so to
speak, has a direct relevance to the public welfare and so is a
lawful subject of Executive Order No. 626. The method chosen
in the basic measure is also reasonably necessary for the
purpose sought to be achieved and not unduly oppressive upon
individuals, again following the above-cited doctrine. There is
no doubt that by banning the slaughter of these animals except
where they are at least seven years old if male and eleven years
old if female upon issuance of the necessary permit, the
executive order will be conserving those still fit for farm work or
breeding and preventing their improvident depletion.
But while conceding that the amendatory measure has the
same lawful subject as the original executive order, we cannot
say with equal certainty that it complies with the second
requirement, viz., that there be a lawful method. We note that
to strengthen the original measure, Executive Order No. 626-A
imposes an absolute ban not on the slaughter of the carabaos
but on their movement, providing that "no carabao regardless
of age, sex, physical condition or purpose (sic) and no carabeef
shall be transported from one province to another." The object
of the prohibition escapes us. The reasonable connection
between the means employed and the purpose sought to be
achieved by the questioned measure is missing We do not see
how the prohibition of the inter-provincial transport of carabaos
can prevent their indiscriminate slaughter, considering that they
can be killed anywhere, with no less difficulty in one province
than in another. Obviously, retaining the carabaos in one
province will not prevent their slaughter there, any more than
moving them to another province will make it easier to kill them
there. As for the carabeef, the prohibition is made to apply to it
as otherwise, so says executive order, it could be easily
circumvented by simply killing the animal. Perhaps so. However,
if the movement of the live animals for the purpose of
preventing their slaughter cannot be prohibited, it should follow
that there is no reason either to prohibit their transfer as, not to
be flippant dead meat.
Even if a reasonable relation between the means and the end
were to be assumed, we would still have to reckon with the
sanction that the measure applies for violation of the
prohibition. The penalty is outright confiscation of the carabao
or carabeef being transported, to be meted out by the executive
authorities, usually the police only. In the Toribio Case, the
statute was sustained because the penalty prescribed was fine
and imprisonment, to be imposed by the court after trial and
conviction of the accused. Under the challenged measure,
significantly, no such trial is prescribed, and the property being
transported is immediately impounded by the police and
declared, by the measure itself, as forfeited to the government.
In the instant case, the carabaos were arbitrarily confiscated by
the police station commander, were returned to the petitioner
only after he had filed a complaint for recovery and given
a supersedeas bond of P12,000.00, which was ordered
confiscated upon his failure to produce the carabaos when
ordered by the trial court. The executive order defined the
prohibition, convicted the petitioner and immediately imposed
punishment, which was carried out forthright. The measure
struck at once and pounced upon the petitioner without giving
him a chance to be heard, thus denying him the centuries-old
guaranty of elementary fair play. It has already been remarked
that there are occasions when notice and hearing may be validly
dispensed with notwithstanding the usual requirement for
these minimum guarantees of due process. It is also conceded
that summary action may be validly taken in administrative
proceedings as procedural due process is not necessarily judicial
only. 20 In the exceptional cases accepted, however. there is a
justification for the omission of the right to a previous hearing,
to wit, the immediacy of the problem sought to be corrected
and the urgency of the need to correct it. In the case before us,
there was no such pressure of time or action calling for the
petitioner's peremptory treatment. The properties involved
were not even inimical per se as to require their instant
destruction. There certainly was no reason why the offense
prohibited by the executive order should not have been proved
first in a court of justice, with the accused being accorded all the
rights safeguarded to him under the Constitution. Considering
that, as we held in Pesigan v. Angeles, 21 Executive Order No.
626-A is penal in nature, the violation thereof should have been
pronounced not by the police only but by a court of justice,
which alone would have had the authority to impose the
prescribed penalty, and only after trial and conviction of the
accused.
We also mark, on top of all this, the questionable manner of the
disposition of the confiscated property as prescribed in the
questioned executive order. It is there authorized that the
seized property shall "be distributed to charitable institutions
and other similar institutions as the Chairman of the National
Meat Inspection Commission may see fit, in the case of
carabeef, and to deserving farmers through dispersal as the
Director of Animal Industry may see fit, in the case of carabaos."
(Emphasis supplied.) The phrase "may see fit" is an extremely
generous and dangerous condition, if condition it is. It is laden
with perilous opportunities for partiality and abuse, and even
corruption. One searches in vain for the usual standard and the
reasonable guidelines, or better still, the limitations that the
said officers must observe when they make their distribution.
There is none. Their options are apparently boundless. Who
shall be the fortunate beneficiaries of their generosity and by
what criteria shall they be chosen? Only the officers named can
supply the answer, they and they alone may choose the grantee
as they see fit, and in their own exclusive discretion. Definitely,
there is here a "roving commission," a wide and sweeping
authority that is not "canalized within banks that keep it from
overflowing," in short, a clearly profligate and therefore invalid
delegation of legislative powers. To sum up then, we find that
the challenged measure is an invalid exercise of the police
power because the method employed to conserve the carabaos
is not reasonably necessary to the purpose of the law and,
worse, is unduly oppressive. Due process is violated because the
owner of the property confiscated is denied the right to be
heard in his defense and is immediately condemned and
punished. The conferment on the administrative authorities of
the power to adjudge the guilt of the supposed offender is a
clear encroachment on judicial functions and militates against
the doctrine of separation of powers. There is, finally, also an
invalid delegation of legislative powers to the officers
mentioned therein who are granted unlimited discretion in the
distribution of the properties arbitrarily taken. For these
reasons, we hereby declare Executive Order No. 626-A
unconstitutional. We agree with the respondent court,
however, that the police station commander who confiscated
the petitioner's carabaos is not liable in damages for enforcing
the executive order in accordance with its mandate. The law
was at that time presumptively valid, and it was his obligation,
as a member of the police, to enforce it. It would have been
impertinent of him, being a mere subordinate of the President,
to declare the executive order unconstitutional and, on his own
responsibility alone, refuse to execute it. Even the trial court, in
fact, and the Court of Appeals itself did not feel they had the
competence, for all their superior authority, to question the
order we now annul.
The Court notes that if the petitioner had not seen fit to assert
and protect his rights as he saw them, this case would never
have reached us and the taking of his property under the
challenged measure would have become a fait accompli despite
its invalidity. We commend him for his spirit. Without the
present challenge, the matter would have ended in that pump
boat in Masbate and another violation of the Constitution, for
all its obviousness, would have been perpetrated, allowed
without protest, and soon forgotten in the limbo of relinquished
rights. The strength of democracy lies not in the rights it
guarantees but in the courage of the people to invoke them
whenever they are ignored or violated. Rights are but weapons
on the wall if, like expensive tapestry, all they do is embellish
and impress. Rights, as weapons, must be a promise of
protection. They become truly meaningful, and fulfill the role
assigned to them in the free society, if they are kept bright and
sharp with use by those who are not afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared
unconstitutional. Except as affirmed above, the decision of the
Court of Appeals is reversed. The supersedeas bond is cancelled
and the amount thereof is ordered restored to the petitioner.
No costs.
G.R. No. 96754 June 22, 1995
CONGRESSMAN JAMES L. CHIONGBIAN (Third District, South
Cotobato) petitioners,
vs.
HON. OSCAR M. ORBOS, Executive Secretary; respondents.
MENDOZA, J.:
These suits challenge the validity of a provision of the Organic
Act for the Autonomous Region in Muslim Mindanao (R.A. No.
6734), authorizing the President of the Philippines to "merge"
by administrative determination the regions remaining after the
establishment of the Autonomous Region, and the Executive
Order issued by the President pursuant to such authority,
"Providing for the Reorganization of Administrative Regions in
Mindanao." A temporary restraining order prayed for by the
petitioners was issued by this Court on January 29, 1991,
enjoining the respondents from enforcing the Executive Order
and statute in question.
The facts are as follows:
Pursuant to Art. X, §18 of the 1987 Constitution, Congress
passed R.A. No. 6734, the Organic Act for the Autonomous
Region in Muslim Mindanao, calling for a plebiscite to be held in
the provinces of Basilan, Cotobato, Davao del Sur, Lanao del
Norte, Lanao del Sur, Maguindanao, Palawan, South Cotabato,
Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte, and
Zamboanga del Sur, and the cities of Cotabato, Dapitan,
Dipolog, General Santos, Iligan, Marawi, Pagadian, Puerto
Princesa and Zamboanga. In the ensuing plebiscite held on
November 16, 1989, four provinces voted in favor of creating an
autonomous region. These are the provinces of Lanao del Sur,
Maguindanao, Sulu and Tawi-Tawi. In accordance with the
constitutional provision, these provinces became the
Autonomous Region in Muslim Mindanao.
On the other hand, with respect to provinces and cities not
voting in favor of the Autonomous Region, Art. XIX, § 13 of R.A.
No. 6734 provides,
That only the provinces and cities voting favorably in
such plebiscites shall be included in the Autonomous
Region in Muslim Mindanao. The provinces and cities
which in the plebiscite do not vote for inclusion in the
Autonomous Region shall remain in the existing
administrative regions. Provided, however, that the
President may, by administrative determination, merge
the existing regions.
Pursuant to the authority granted by this provision, then
President Corazon C. Aquino issued on October 12, 1990
Executive Order No. 429, "providing for the Reorganization of
the Administrative Regions in Mindanao." Under this Order, as
amended by E.O. No. 439 —
(1) Misamis Occidental, at present part of Region X, will
become part of Region IX.
(2) Oroquieta City, Tangub City and Ozamiz City, at
present parts of Region X will become parts of Region
IX.
(3) South Cotobato, at present a part of Region XI, will
become part of Region XII.
(4) General Santos City, at present part of Region XI, will
become part of Region XII.
(5) Lanao del Norte, at present part of Region XII, will
become part of Region IX.
(6) Iligan City and Marawi City, at present part of Region
XII, will become part of Region IX.
Petitioners in G.R. No. 96754 are, or at least at the time of the
filing of their petition, members of Congress representing
various legislative districts in South Cotobato, Zamboanga del
Norte, Basilan, Lanao del Norte and Zamboanga City. On
November 12, 1990, they wrote then President Aquino
protesting E.O. No. 429. They contended that
There is no law which authorizes the President to pick
certain provinces and cities within the existing regions
— some of which did not even take part in the
plebiscite as in the case of the province of Misamis
Occidental and the cities of Oroquieta, Tangub and
Ozamiz — and restructure them to new administrative
regions. On the other hand, the law (Sec. 13, Art. XIX,
R.A. 6734) is specific to the point, that is, that "the
provinces and cities which in the plebiscite do not vote
for inclusion in the Autonomous Region shall remain in
the existing administrative regions."
The transfer of the provinces of Misamis Occidental
from Region X to Region IX; Lanao del Norte from
Region XII to Region IX, and South Cotobato from
Region XI to Region XII are alterations of the existing
structures of governmental units, in other
words, reorganization. This can be gleaned from
Executive Order No. 429, thus
Whereas, there is an urgent need to reorganize
the administrative regions in Mindanao to
guarantee the effective delivery of field services
of government agencies taking into
consideration the formation of the Autonomous
Region in Muslim Mindanao.
With due respect to Her Excellency, we submit that
while the authority necessarily includes the authority to
merge, the authority to merge does not include the
authority to reorganize. Therefore, the President's
authority under RA 6734 to "merge existing regions"
cannot be construed to include the authority to
reorganize them. To do so will violate the rules of
statutory construction.
The transfer of regional centers under Executive Order
429 is actually a restructuring (reorganization) of
administrative regions. While this reorganization, as in
Executive Order 429, does not affect the apportionment
 of congressional representatives, the same is not valid
under the penultimate paragraph of Sec. 13, Art. XIX of
R.A. 6734 and Ordinance appended to the 1986
Constitution apportioning the seats of the House of
Representatives of Congress of the Philippines to the
different legislative districts in provinces and cities.1
As their protest went unheeded, while Inauguration Ceremonies
of the New Administrative Region IX were scheduled on January
26, 1991, petitioners brought this suit for certiorari and
prohibition. On the other hand, the petitioner in G.R. No. 96673,
Immanuel Jaldon, is a resident of Zamboanga City, who is suing
in the capacity of taxpayer and citizen of the Republic of the
Philippines.
Petitioners in both cases contend that Art. XIX, §13 of R.A. No.
6734 is unconstitutional because (1) it unduly delegates
legislative power to the President by authorizing him to "merge
[by administrative determination] the existing regions" or at any
rate provides no standard for the exercise of the power
delegated and (2) the power granted is not expressed in the
title of the law.
In addition, petitioner in G.R. No. 96673 challenges the validity
of E.O. No. 429 on the ground that the power granted by Art.
XIX, §13 to the President is only to "merge regions IX and XII"
but not to reorganize the entire administrative regions in
Mindanao and certainly not to transfer the regional center of
Region IX from Zamboanga City to Pagadian City.
The Solicitor General defends the reorganization of regions in
Mindanao by E.O. No. 429 as merely the exercise of a power
"traditionally lodged in the President," as held in Abbas
v. Comelec,2 and as a mere incident of his power of general
supervision over local governments and control of executive
departments, bureaus and offices under Art. X, §16 and Art. VII,
§17, respectively, of the Constitution.
He contends that there is no undue delegation of legislative
power but only a grant of the power to "fill up" or provide the
details of legislation because Congress did not have the facility
to provide for them. He cites by analogy the case
of Municipality of Cardona v. Municipality of Binangonan,3 in
which the power of the Governor-General to fix municipal
boundaries was sustained on the ground that —
[such power] is simply a transference of certain details
with respect to provinces, municipalities, and
townships, many of them newly created, and all of
them subject to a more or less rapid change both in
development and centers of population, the proper
regulation of which might require not only prompt
action but action of such a detailed character as not to
permit the legislative body, as such, to take it efficiently.
The Solicitor General justifies the grant to the President of the
power "to merge the existing regions" as something fairly
embraced in the title of R.A. No. 6734, to wit, "An Act Providing
for an Organic Act for the Autonomous Region in Muslim
Mindanao," because it is germane to it.
He argues that the power is not limited to the merger of those
regions in which the provinces and cities which took part in the
plebiscite are located but that it extends to all regions in
Mindanao as necessitated by the establishment of the
autonomous region.
Finally, he invokes P.D. No. 1416, as amended by P.D. No. 1772
which provides:
1. The President of the Philippines shall have the
continuing authority to reorganize the National
Government. In exercising this authority, the President
shall be guided by generally acceptable principles of
good government and responsive national government,
including but not limited to the following guidelines for
a more efficient, effective, economical and
development-oriented governmental framework:
(a) More effective planning implementation, and review
functions;
(b) Greater decentralization and responsiveness in
decision-making process;
(c) Further minimization, if not, elimination, of
duplication or overlapping of purposes, functions,
activities, and programs;
(d) Further development of as standardized as possible
ministerial, sub-ministerial and corporate organizational
structures;
(e) Further development of the regionalization process;
and
(f) Further rationalization of the functions of and
administrative relationships among government
entities.
For purposes of this Decree, the coverage of the
continuing authority of the President to reorganize shall
be interpreted to encompass all agencies, entities,
instrumentalities, and units of the National
Government, including all government owned or
controlled corporations as well as the entire range of
the powers, functions, authorities, administrative
relationships, acid related aspects pertaining to these
agencies, entities, instrumentalities, and units.
2. [T]he President may, at his discretion, take the
following actions:
xxx xxx xxx
f. Create, abolish, group, consolidate, merge, or
integrate entities, agencies, instrumentalities, and units
of the National Government, as well as expand, amend,
 change, or otherwise modify their powers, functions
and authorities, including, with respect to government-
owned or controlled corporations, their corporate life,
capitalization, and other relevant aspects of their
charters.
g. Take such other related actions as may be necessary
to carry out the purposes and objectives of this Decree.
Considering the arguments of the parties, the issues are:
(1) whether the power to "merge" administrative regions is
legislative in character, as petitioners contend, or whether it is
executive in character, as respondents claim it is, and, in any
event, whether Art. XIX, §13 is invalid because it contains no
standard to guide the President's discretion;
(2) whether the power given is fairly expressed in the title of the
statute; and
(3) whether the power granted authorizes the reorganization
even of regions the provinces and cities in which either did not
take part in the plebiscite on the creation of the Autonomous
Region or did not vote in favor of it; and
(4) whether the power granted to the President includes the
power to transfer the regional center of Region IX from
Zamboanga City to Pagadian City.
It will be useful to recall first the nature of administrative
regions and the basis and purpose for their creation. On
September 9, 1968, R.A. No. 5435 was passed "authorizing the
President of the Philippines, with the help of a Commission on
Reorganization, to reorganize the different executive
departments, bureaus, offices, agencies and instrumentalities of
the government, including banking or financial institutions and
corporations owned or controlled by it." The purpose was to
promote "simplicity, economy and efficiency in the
government."4 The Commission on Reorganization created
under the law was required to submit an integrated
reorganization plan not later than December 31, 1969 to the
President who was in turn required to submit the plan to
Congress within forty days after the opening of its next regular
session. The law provided that any reorganization plan
submitted would become effective only upon the approval of
Congress.5
Accordingly, the Reorganization Commission prepared an
Integrated Reorganization Plan which divided the country into
eleven administrative regions. 6 By P.D. No. 1, the Plan was
approved and made part of the law of the land on September
24, 1972. P.D. No. 1 was twice amended in 1975, first by P.D.
No. 742 which "restructur[ed] the regional organization of
Mindanao, Basilan, Sulu and Tawi-Tawi" and later by P.D. No.
773 which further "restructur[ed] the regional organization of
Mindanao and divid[ed] Region IX into two sub-regions." In
1978, P.D. No. 1555 transferred the regional center of Region IX
from Jolo to Zamboanga City.
Thus the creation and subsequent reorganization of
administrative regions have been by the President pursuant to
authority granted to him by law. In conferring on the President
the power "to merge [by administrative determination] the
existing regions" following the establishment of the
Autonomous Region in Muslim Mindanao, Congress merely
followed the pattern set in previous legislation dating back to
the initial organization of administrative regions in 1972. The
choice of the President as delegate is logical because the
division of the country into regions is intended to facilitate not
only the administration of local governments but also the
direction of executive departments which the law requires
should have regional offices. As this Court observed in Abbas,
"while the power to merge administrative regions is not
expressly provided for in the Constitution, it is a power which
has traditionally been lodged with the President to facilitate the
exercise of the power of general supervision over local
governments [see Art. X, §4 of the Constitution]." The regions
themselves are not territorial and political divisions like
provinces, cities, municipalities and barangays but are "mere
groupings of contiguous provinces for administrative
purposes."7 The power conferred on the President is similar to
the power to adjust municipal boundaries8 which has been
described in Pelaez v. Auditor General9 or as "administrative in
nature."
There is, therefore, no abdication by Congress of its legislative
power in conferring on the President the power to merge
administrative regions. The question is whether Congress has
provided a sufficient standard by which the President is to be
guided in the exercise of the power granted and whether in any
event the grant of power to him is included in the subject
expressed in the title of the law.
First, the question of standard. A legislative standard need not
be expressed. It may simply be gathered or implied. 10 Nor need
it be found in the law challenged because it may be embodied
in other statutes on the same subject as that of the challenged
legislation. 11
With respect to the power to merge existing administrative
regions, the standard is to be found in the same policy
underlying the grant to the President in R.A. No. 5435 of the
power to reorganize the Executive Department, to wit: "to
promote simplicity, economy and efficiency in the government
to enable it to pursue programs consistent with national goals
for accelerated social and economic development and to
improve the service in the transaction of the public
business."12 Indeed, as the original eleven administrative
regions were established in accordance with this policy, it is
logical to suppose that in authorizing the President to "merge
[by administrative determination] the existing regions" in view
of the withdrawal from some of those regions of the provinces
now constituting the Autonomous Region, the purpose of
Congress was to reconstitute the original basis for the
organization of administrative regions.
Nor is Art. XIX, §13 susceptible to charge that its subject is not
embraced in the title of R.A. No. 6734. The constitutional
requirement that "every bill passed by the Congress shall
embrace only one subject which shall be expressed in the title
thereof" 13 has always been given a practical rather than a
technical construction. The title is not required to be an index of
the content of the bill. It is a sufficient compliance with the
constitutional requirement if the title expresses the general
subject and all provisions of the statute are germane to that
subject. 14 Certainly the reorganization of the remaining
administrative regions is germane to the general subject of R.A.
No. 6734, which is the establishment of the Autonomous Region
in Muslim Mindanao.
Finally, it is contended that the power granted to the President
is limited to the reorganization of administrative regions in
which some of the provinces and cities which voted in favor of
regional autonomy are found, because Art. XIX, §13 provides
that those which did not vote for autonomy "shall remain in the
existing administrative regions." More specifically, petitioner in
G.R. No. 96673 claims:
The questioned Executive Order No. 429 distorted and,
in fact, contravened the clear intent of this provision by
moving out or transferring certain political subdivisions
(provinces/cities) out of their legally designated regions.
Aggravating this unacceptable or untenable situation is
EO No. 429's effecting certain movements on areas
which did not even participate in the November 19,
1989 plebiscite. The unauthorized action of the
President, as effected by and under the questioned EO
No. 429, is shown by the following dispositions: (1)
Misamis Occidental, formerly of Region X and which did
not even participate in the plebiscite, was moved from
said Region X to Region IX; (2) the cities of Ozamis,
Oroquieta, and Tangub, all formerly belonging to Region
X, which likewise did not participate in the said
plebiscite, were transferred to Region IX; (3) South
Cotobato, from Region XI to Region XII; (4) General
Santos City: from Region XI to Region XII; (5) Lanao del
Norte, from Region XII to Region IX; and (6) the cities of
Marawi and Iligan from Region XII to Region IX. All of
the said provinces and cities voted "NO", and thereby
rejected their entry into the Autonomous Region in
Muslim Mindanao, as provided under RA No. 6734. 15
The contention has no merit. While Art. XIX, §13 provides that
"The provinces and cities which do not vote for inclusion in the
Autonomous Region shall remain in the existing administrative
regions," this provision is subject to the qualification that "the
President may by administrative determination merge the
existing regions." This means that while non-assenting
provinces and cities are to remain in the regions as designated
upon the creation of the Autonomous Region, they may
nevertheless be regrouped with contiguous provinces forming
other regions as the exigency of administration may require.
The regrouping is done only on paper. It involves no more than
are definition or redrawing of the lines separating
administrative regions for the purpose of facilitating the
administrative supervision of local government units by the
President and insuring the efficient delivery of essential
services. There will be no "transfer" of local governments from
one region to another except as they may thus be regrouped so
that a province like Lanao del Norte, which is at present part of
Region XII, will become part of Region IX.
The regrouping of contiguous provinces is not even analogous
to a redistricting or to the division or merger of local
governments, which all have political consequences on the right
of people residing in those political units to vote and to be
voted for. It cannot be overemphasized that administrative
regions are mere groupings of contiguous provinces for
administrative purposes, not for political representation.
Petitioners nonetheless insist that only those regions, in which
the provinces and cities which voted for inclusion in the
Autonomous Region are located, can be "merged" by the
President.
To be fundamental reason Art. XIX, §13 is not so limited. But the
more fundamental reason is that the President's power cannot
be so limited without neglecting the necessities of
administration. It is noteworthy that the petitioners do not
claim that the reorganization of the regions in E.O. No. 429 is
irrational. The fact is that, as they themselves admit, the
reorganization of administrative regions in E.O. No. 429 is based
on relevant criteria, to wit: (1) contiguity and geographical
features; (2) transportation and communication facilities; (3)
cultural and language groupings; (4) land area and population;
(5) existing regional centers adopted by several agencies; (6)
socio-economic development programs in the regions and (7)
number of provinces and cities.
What has been said above applies to the change of the regional
center from Zamboanga City to Pagadian City. Petitioners
contend that the determination of provincial capitals has always
been by act of Congress. But as, this Court said in
Abbas, 16 administrative regions are mere "groupings of
contiguous provinces for administrative purposes, . . . [They] are
not territorial and political subdivisions like provinces, cities,
municipalities and barangays." There is, therefore, no basis for
contending that only Congress can change or determine
regional centers. To the contrary, the examples of P.D. Nos. 1,
742, 773 and 1555 suggest that the power to reorganize
administrative regions carries with it the power to determine
the regional center.
It may be that the transfer of the regional center in Region IX
from Zamboanga City to Pagadian City may entail the
expenditure of large sums of money for the construction of
buildings and other infrastructure to house regional offices.
That contention is addressed to the wisdom of the transfer
rather than to its legality and it is settled that courts are not the
arbiters of the wisdom or expediency of legislation. In any event
this is a question that we will consider only if fully briefed and
upon a more adequate record than that presented by
petitioners.
WHEREFORE, the petitions for certiorari and prohibition are
DISMISSED for lack of merit.
G.R. No. 101273 July 3, 1992
CONGRESSMAN ENRIQUE T. GARCIA (Second District of
Bataan), petitioner,
vs.
THE EXECUTIVE SECRETARY, THE COMMISSIONER OF
CUSTOMS, THE NATIONAL ECONOMIC AND DEVELOPMENT
AUTHORITY, THE TARIFF COMMISSION, THE SECRETARY OF
FINANCE, and THE ENERGY REGULATORY BOARD, respondents.
FELICIANO, J.:
On 27 November 1990, the President issued Executive Order
No. 438 which imposed, in addition to any other duties, taxes
and charges imposed by law on all articles imported into the
Philippines, an additional duty of five percent (5%) ad valorem.
This additional duty was imposed across the board on all
imported articles, including crude oil and other oil products
imported into the Philippines. This additional duty was
subsequently increased from five percent (5%) ad valorem to
nine percent (9%) ad valorem by the promulgation of Executive
Order No. 443, dated 3 January 1991. On 24 July 1991, the
Department of Finance requested the Tariff Commission to
initiate the process required by the Tariff and Customs Code for
the imposition of a specific levy on crude oil and other
petroleum products, covered by HS Heading Nos. 27.09, 27.10
and 27.11 of Section 104 of the Tariff and Customs Code as
amended. Accordingly, the Tariff Commission, following the
procedure set forth in Section 401 of the Tariff and Customs
Code, scheduled a public hearing to give interested parties an
opportunity to be heard and to present evidence in support of
their respective positions.
Meantime, Executive Order No. 475 was issued by the
President, on 15 August 1991 reducing the rate of additional
duty on all imported articles from nine percent (9%) to five
percent (5%) ad valorem, except in the cases of crude oil and
other oil products which continued to be subject to the
additional duty of nine percent (9%) ad valorem.
Upon completion of the public hearings, the Tariff Commission
submitted to the President a "Report on Special Duty on Crude
Oil and Oil Products" dated 16 August 1991, for consideration
and appropriate action. Seven (7) days later, the President
issued Executive Order No. 478, dated 23 August 1991, which
levied (in addition to the aforementioned additional duty of
nine percent (9%) ad valorem and all other existing ad
valorem duties) a special duty of P0.95 per liter or P151.05 per
barrel of imported crude oil and P1.00 per liter of imported oil
products.
In the present Petition for Certiorari, Prohibition
and Mandamus, petitioner assails the validity of Executive
Orders Nos. 475 and 478. He argues that Executive Orders Nos.
475 and 478 are violative of Section 24, Article VI of the 1987
Constitution which provides as follows:
Sec. 24: All appropriation, revenue or tariff bills, bills
authorizing increase of the public debt, bills of local
application, and private bills shall originate exclusively
in the House of Representatives, but the Senate may
propose or concur with amendments.
He contends that since the Constitution vests the authority to
enact revenue bills in Congress, the President may not assume
such power by issuing Executive Orders Nos. 475 and 478 which
are in the nature of revenue-generating measures.
Petitioner further argues that Executive Orders No. 475 and 478
contravene Section 401 of the Tariff and Customs Code, which
Section authorizes the President, according to petitioner, to
increase, reduce or remove tariff duties or to impose additional
duties only when necessary to protect local industries or
products but not for the purpose of raising additional revenue
for the government. Thus, petitioner questions first the
constitutionality and second the legality of Executive Orders
Nos. 475 and 478, and asks us to restrain the implementation of
those Executive Orders. We will examine these questions in that
order.
Before doing so, however, the Court notes that the recent
promulgation of Executive Order No. 507 did not render the
instant Petition moot and academic. Executive Order No. 517
which is dated 30 April 1992 provides as follows:
Sec. 1. Lifting of the Additional Duty. — The additional
duty in the nature of ad valorem imposed on all
imported articles prescribed by the provisions of
Executive Order No. 443, as amended, is
hereby lifted; Provided, however, that the selected
articles covered by HS Heading Nos. 27.09 and 27.10 of
Section 104 of the Tariff and Customs Code, as
amended, subject of Annex "A" hereof, shall continue to
be subject to the additional duty of nine (9%)
percent ad valorem.
Under the above quoted provision, crude oil and other
oil products continue to be subject to the additional
duty of nine percent (9%) ad valorem under Executive
Order No. 475 and to the special duty of P0.95 per liter
of imported crude oil and P1.00 per liter of imported oil
products under Executive Order No. 478.
Turning first to the question of constitutionality, under Section
24, Article VI of the Constitution, the enactment of
appropriation, revenue and tariff bills, like all other bills is, of
course, within the province of the Legislative rather than the
Executive Department. It does not follow, however, that
therefore Executive Orders Nos. 475 and 478, assuming they
may be characterized as revenue measures, are prohibited to
the President, that they must be enacted instead by the
Congress of the Philippines. Section 28(2) of Article VI of the
Constitution provides as follows:
(2) The Congress may, by law, authorize the President to
fix within specified limits, and subject to such
limitations and restrictions as it may impose, tariff
rates, import and export quotas, tonage and wharfage
dues, and other duties or imposts within the framework
 of the national development program of the
Government. (Emphasis supplied)
There is thus explicit constitutional permission 1 to Congress to
authorize the President "subject to such limitations and
restrictions is [Congress] may impose" to fix "within specific
limits" "tariff rates . . . and other duties or imposts . . ."
The relevant congressional statute is the Tariff and Customs
Code of the Philippines, and Sections 104 and 401, the pertinent
provisions thereof. These are the provisions which the President
explicitly invoked in promulgating Executive Orders Nos. 475
and 478. Section 104 of the Tariff and Customs Code provides in
relevant part:
Sec. 104. All tariff sections, chapters, headings and
subheadings and the rates of import duty under Section
104 of Presidential Decree No. 34 and all subsequent
amendments issued under Executive Orders and
Presidential Decrees are hereby adopted and form part
of this Code.
There shall be levied, collected, and paid upon all
imported articles the rates of duty indicated in the
Section under this section except as otherwise
specifically provided for in this Code: Provided, that, the
maximum rate shall not exceed one hundred per
cent ad valorem.
The rates of duty herein provided or subsequently
fixed pursuant to Section Four Hundred One of this
Code shall be subject to periodic investigation by the
Tariff Commission and may be revised by the
President upon recommendation of the National
Economic and Development Authority.
(Emphasis supplied)
Section 401 of the same Code needs to be quoted in full:
Sec. 401. Flexible Clause. —
a. In the interest of national economy, general welfare and/or
national security, and subject to the limitations herein
prescribed, the President, upon recommendation of the
National Economic and Development Authority (hereinafter
referred to as NEDA), is hereby empowered: (1) to increase,
reduce or remove existing protective rates of import
duty (including any necessary change in classification). The
existing rates may be increased or decreased but in no case
shall the reduced rate of import duty be lower than the basic
rate of ten (10) per cent ad valorem, nor shall the increased rate
of import duty be higher than a maximum of one hundred
(100) per cent ad valorem; (2) to establish import quota or to
ban imports of any commodity, as may be necessary; and (3) to
impose an additional duty on all imports not exceeding ten (10)
per cent ad valorem, whenever necessary; Provided, That upon
periodic investigations by the Tariff Commission and
recommendation of the NEDA, the President may cause a
gradual reduction of protection levels granted in Section One
hundred and four of this Code, including those subsequently
granted pursuant to this section.
b. Before any recommendation is submitted to the President by
the NEDA pursuant to the provisions of this section, except in
the imposition of an additional duty not exceeding ten (10) per
cent ad valorem, the Commission shall conduct an investigation
in the course of which they shall hold public hearings wherein
interested parties shall be afforded reasonable opportunity to
be present, produce evidence and to be heard. The Commission
shall also hear the views and recommendations of any
government office, agency or instrumentality concerned. The
Commission shall submit their findings and recommendations to
the NEDA within thirty (30) days after the termination of the
public hearings.
c. The power of the President to increase or decrease rates of
import duty within the limits fixed in subsection "a" shall
include the authority to modify the form of duty. In modifying
the form of duty, the corresponding ad valorem or specific
equivalents of the duty with respect to imports from the
principal competing foreign country for the most recent
representative period shall be used as bases.
d. The Commissioner of Customs shall regularly furnish the
Commission a copy of all customs import entries as filed in the
Bureau of Customs. The Commission or its duly authorized
representatives shall have access to, and the right to copy all
liquidated customs import entries and other documents
appended thereto as finally filed in the Commission on Audit.
e. The NEDA shall promulgate rules and regulations necessary to
carry out the provisions of this section.
f. Any Order issued by the President pursuant to the provisions
of this section shall take effect thirty (30) days after
promulgation, except in the imposition of additional duty not
exceeding ten (10) per cent ad valorem which shall take effect
at the discretion of the President. (Emphasis supplied)
Petitioner, however, seeks to avoid the thrust of the delegated
authorizations found in Sections 104 and 401 of the Tariff and
Customs Code, by contending that the President is authorized
to act under the Tariff and Customs Code only "to protect local
industries and products for the sake of the national economy,
general welfare and/or national security." 2 He goes on to claim
that:
E.O. Nos. 478 and 475 having nothing to do whatsoever
with the protection of local industries and products for
the sake of national economy, general welfare and/or
national security. On the contrary, they work in reverse,
especially as to crude oil, an essential product which we
do not have to protect, since we produce only minimal
quantities and have to import the rest of what we need.
These Executive Orders are avowedly solely to enable
the government to raise government finances, contrary
to Sections 24 and 28 (2) of Article VI of the
 Constitution, as well as to Section 401 of the Tariff and
Customs Code. 3 (Emphasis in the original)
The Court is not persuaded. In the first place, there is nothing in
the language of either Section 104 or of 401 of the Tariff and
Customs Code that suggest such a sharp and absolute limitation
of authority. The entire contention of petitioner is anchored on
just two (2) words, one found in Section 401 (a)(1):
"existing protective rates of import duty," and the second in the
proviso found at the end of Section 401 (a): "protection levels
granted in Section 104 of this Code . . . . " We believe that the
words "protective" and ''protection" are simply not enough to
support the very broad and encompassing limitation which
petitioner seeks to rest on those two (2) words.
In the second place, petitioner's singular theory collides with a
very practical fact of which this Court may take judicial notice —
that the Bureau of Customs which administers the Tariff and
Customs Code, is one of the two (2) principal traditional
generators or producers of governmental revenue, the other
being the Bureau of Internal Revenue. (There is a third agency,
non-traditional in character, that generates lower but still
comparable levels of revenue for the government — The
Philippine Amusement and Games Corporation [PAGCOR].)
In the third place, customs duties which are assessed at the
prescribed tariff rates are very much like taxes which are
frequently imposed for both revenue-raising and for regulatory
purposes. 4 Thus, it has been held that "customs duties" is "the
name given to taxes on the importation and exportation of
commodities, the tariff or tax assessed upon merchandise
imported from, or exported to, a foreign country." 5 The levying
of customs duties on imported goods may have in some
measure the effect of protecting local industries — where such
local industries actually exist and are producing comparable
goods. Simultaneously, however, the very same customs duties
inevitably have the effect of producing governmental revenues.
Customs duties like internal revenue taxes are rarely, if ever,
designed to achieve one policy objective only. Most commonly,
customs duties, which constitute taxes in the sense of exactions
the proceeds of which become public funds 6 — have either or
both the generation of revenue and the regulation of economic
or social activity as their moving purposes and frequently, it is
very difficult to say which, in a particular instance, is the
dominant or principal objective. In the instant case, since the
Philippines in fact produces ten (10) to fifteen percent (15%) of
the crude oil consumed here, the imposition of increased tariff
rates and a special duty on imported crude oil and imported oil
products may be seen to have some "protective" impact upon
indigenous oil production. For the effective, price of imported
crude oil and oil products is increased. At the same time, it
cannot be gainsaid that substantial revenues for the
government are raised by the imposition of such increased tariff
rates or special duty.
In the fourth place, petitioner's concept which he urges us to
build into our constitutional and customs law, is a stiflingly
narrow one. Section 401 of the Tariff and Customs Code
establishes general standards with which the exercise of the
authority delegated by that provision to the President must be
consistent: that authority must be exercised in "the interest of
national economy, general welfare and/or national security."
Petitioner, however, insists that the "protection of local
industries" is the only permissible objective that can be secured
by the exercise of that delegated authority, and that therefore
"protection of local industries" is the sum total or the alpha and
the omega of "the national economy, general welfare and/or
national security." We find it extremely difficult to take seriously
such a confined and closed view of the legislative standards and
policies summed up in Section 401. We believe, for instance,
that the protection of consumers, who after all constitute the
very great bulk of our population, is at the very least as
important a dimension of "the national economy, general
welfare and national security" as the protection of local
industries. And so customs duties may be reduced or even
removed precisely for the purpose of protecting consumers
from the high prices and shoddy quality and inefficient service
that tariff-protected and subsidized local manufacturers may
otherwise impose upon the community.
It seems also important to note that tariff rates are commonly
established and the corresponding customs duties levied and
collected upon articles and goods which are not found at all
and not produced in the Philippines. The Tariff and Customs
Code is replete with such articles and commodities: among the
more interesting examples are ivory (Chapter 5,
5.10); castoreum or musk taken from the beaver (Chapter 5,
5.14); Olives (Chapter 7, Notes); truffles or European fungi
growing under the soil on tree roots (Chapter 7,
Notes); dates (Chapter 8, 8.01); figs (Chapter 8,
8.03); caviar (Chapter 16, 16.01); aircraft (Chapter 88,
88.0l); special diagnostic instruments and apparatus for human
medicine and surgery (Chapter 90, Notes); X-ray generators; X-
ray tubes;
X-ray screens, etc. (Chapter 90, 90.20); etc. In such cases,
customs duties may be seen to be imposed either for revenue
purposes purely or perhaps, in certain cases, to discourage any
importation of the items involved. In either case, it is clear that
customs duties are levied and imposed entirely apart from
whether or not there are any competing local industries to
protect.
Accordingly, we believe and so hold that Executive Orders Nos.
475 and 478 which may be conceded to be substantially moved
by the desire to generate additional public revenues, are not,
for that reason alone, either constitutionally flawed, or legally
infirm under Section 401 of the Tariff and Customs Code.
Petitioner has not successfully overcome the presumptions of
constitutionality and legality to which those Executive Orders
are entitled. 7 The conclusion we have reached above renders it
unnecessary to deal with petitioner's additional contention that,
should Executive Orders Nos. 475 and 478 be declared
unconstitutional and illegal, there should be a roll back of prices
of petroleum products equivalent to the "resulting excess
money not be needed to adequately maintain the Oil Price
Stabilization Fund (OPSF)." 8 WHEREFORE, premises considered,
the Petition for Certiorari, Prohibition and Mandamus is hereby
DISMISSED for lack of merit. Costs against petitioner.
G.R. No. L-45685 November 16, 1937
THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG &
SHANGHAI BANKING CORPORATION, petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila,
and MARIANO CU UNJIENG, respondents.
LAUREL, J.:
This is an original action instituted in this court on August 19,
1937, for the issuance of the writ of certiorari and of prohibition
to the Court of First Instance of Manila so that this court may
review the actuations of the aforesaid Court of First Instance in
criminal case No. 42649 entitled "The People of the Philippine
Islands vs. Mariano Cu Unjieng, et al.", more particularly the
application of the defendant Mariano Cu Unjieng therein for
probation under the provisions of Act No. 4221, and thereafter
prohibit the said Court of First Instance from taking any further
action or entertaining further the aforementioned application
for probation, to the end that the defendant Mariano Cu
Unjieng may be forthwith committed to prison in accordance
with the final judgment of conviction rendered by this court in
said case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the
Hongkong and Shanghai Banking Corporation, are respectively
the plaintiff and the offended party, and the respondent herein
Mariano Cu Unjieng is one of the defendants, in the criminal
case entitled "The People of the Philippine Islands vs. Mariano
Cu Unjieng, et al.", criminal case No. 42649 of the Court of First
Instance of Manila and G.R. No. 41200 of this court. Respondent
herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh
branch of the Court of First Instance of Manila, who heard the
application of the defendant Mariano Cu Unjieng for probation
in the aforesaid criminal case.
The information in the aforesaid criminal case was filed with the
Court of First Instance of Manila on October 15, 1931, petitioner
herein Hongkong and Shanghai Banking Corporation intervening
in the case as private prosecutor. After a protracted trial
unparalleled in the annals of Philippine jurisprudence both in
the length of time spent by the court as well as in the volume in
the testimony and the bulk of the exhibits presented, the Court
of First Instance of Manila, on January 8, 1934, rendered a
judgment of conviction sentencing the defendant Mariano Cu
Unjieng to indeterminate penalty ranging from four years and
two months of prision correccional to eight years of prision
mayor, to pay the costs and with reservation of civil action to
the offended party, the Hongkong and Shanghai Banking
Corporation. Upon appeal, the court, on March 26, 1935,
modified the sentence to an indeterminate penalty of from five
years and six months of prision correccional to seven years, six
months and twenty-seven days of prision mayor, but affirmed
the judgment in all other respects. Mariano Cu Unjieng filed a
motion for reconsideration and four successive motions for new
trial which were denied on December 17, 1935, and final
judgment was accordingly entered on December 18, 1935. The
defendant thereupon sought to have the case elevated
on certiorari to the Supreme Court of the United States but the
latter denied the petition for certiorari in November, 1936. This
court, on November 24, 1936, denied the petition subsequently
filed by the defendant for leave to file a second alternative
motion for reconsideration or new trial and thereafter
remanded the case to the court of origin for execution of the
judgment.
The instant proceedings have to do with the application for
probation filed by the herein respondent Mariano Cu Unjieng
on November 27, 1936, before the trial court, under the
provisions of Act No. 4221 of the defunct Philippine Legislature.
Herein respondent Mariano Cu Unjieng states in his
petition, inter alia, that he is innocent of the crime of which he
was convicted, that he has no criminal record and that he would
observe good conduct in the future. The Court of First Instance
of Manila, Judge Pedro Tuason presiding, referred the
application for probation of the Insular Probation Office which
recommended denial of the same June 18, 1937. Thereafter,
the Court of First Instance of Manila, seventh branch, Judge Jose
O. Vera presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an
opposition to the granting of probation to the herein
respondent Mariano Cu Unjieng. The private prosecution also
filed an opposition on April 5, 1937, alleging, among other
things, that Act No. 4221, assuming that it has not been
repealed by section 2 of Article XV of the Constitution, is
nevertheless violative of section 1, subsection (1), Article III of
the Constitution guaranteeing equal protection of the laws for
the reason that its applicability is not uniform throughout the
Islands and because section 11 of the said Act endows the
provincial boards with the power to make said law effective or
otherwise in their respective or otherwise in their respective
provinces. The private prosecution also filed a supplementary
opposition on April 19, 1937, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue delegation of
legislative power to the provincial boards of several provinces
(sec. 1, Art. VI, Constitution). The City Fiscal concurred in the
opposition of the private prosecution except with respect to the
questions raised concerning the constitutionality of Act No.
4221.
On June 28, 1937, herein respondent Judge Jose O. Vera
promulgated a resolution with a finding that "las pruebas no
han establecido de unamanera concluyente la culpabilidad del
peticionario y que todos los hechos probados no son
inconsistentes o incongrentes con su inocencia" and concludes
that the herein respondent Mariano Cu Unjieng "es inocente
por duda racional" of the crime of which he stands convicted by
this court in G.R. No. 41200, but denying the latter's petition for
probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada
por las circunstancias y la historia social que se han
expuesto en el cuerpo de esta resolucion, que hacen al
peticionario acreedor de la misma, una parte de la
opinion publica, atizada por los recelos y las suspicacias,
podria levantarse indignada contra un sistema de
probacion que permite atisbar en los procedimientos
ordinarios de una causa criminal perturbando la quietud
y la eficacia de las decisiones ya recaidas al traer a la
 superficie conclusiones enteramente differentes, en
menoscabo del interes publico que demanda el respeto
de las leyes y del veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu
Unjieng filed an exception to the resolution denying probation
and a notice of intention to file a motion for reconsideration. An
alternative motion for reconsideration or new trial was filed by
counsel on July 13, 1937. This was supplemented by an
additional motion for reconsideration submitted on July 14,
1937. The aforesaid motions were set for hearing on July 31,
1937, but said hearing was postponed at the petition of counsel
for the respondent Mariano Cu Unjieng because a motion for
leave to intervene in the case as amici curiae signed by thirty-
three (thirty-four) attorneys had just been filed with the trial
court. Attorney Eulalio Chaves whose signature appears in the
aforesaid motion subsequently filed a petition for leave to
withdraw his appearance as amicus curiae on the ground that
the motion for leave to intervene as amici curiae was circulated
at a banquet given by counsel for Mariano Cu Unjieng on the
evening of July 30, 1937, and that he signed the same "without
mature deliberation and purely as a matter of courtesy to the
person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion
with the trial court for the issuance of an order of execution of
the judgment of this court in said case and forthwith to commit
the herein respondent Mariano Cu Unjieng to jail in obedience
to said judgment.
On August 7, 1937, the private prosecution filed its opposition
to the motion for leave to intervene as amici
curiae aforementioned, asking that a date be set for a hearing
of the same and that, at all events, said motion should be
denied with respect to certain attorneys signing the same who
were members of the legal staff of the several counsel for
Mariano Cu Unjieng. On August 10, 1937, herein respondent
Judge Jose O. Vera issued an order requiring all parties including
the movants for intervention as amici curiae to appear before
the court on August 14, 1937. On the last-mentioned date, the
Fiscal of the City of Manila moved for the hearing of his motion
for execution of judgment in preference to the motion for leave
to intervene as amici curiae but, upon objection of counsel for
Mariano Cu Unjieng, he moved for the postponement of the
hearing of both motions. The respondent judge thereupon set
the hearing of the motion for execution on August 21, 1937, but
proceeded to consider the motion for leave to intervene
as amici curiae as in order. Evidence as to the circumstances
under which said motion for leave to intervene as amici
curiae was signed and submitted to court was to have been
heard on August 19, 1937. But at this juncture, herein
petitioners came to this court on extraordinary legal process to
put an end to what they alleged was an interminable
proceeding in the Court of First Instance of Manila which
fostered "the campaign of the defendant Mariano Cu Unjieng
for delay in the execution of the sentence imposed by this
Honorable Court on him, exposing the courts to criticism and
ridicule because of the apparent inability of the judicial
machinery to make effective a final judgment of this court
imposed on the defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was accordingly
suspended upon the issuance of a temporary restraining order
by this court on August 21, 1937.
To support their petition for the issuance of the extraordinary
writs of certiorari and prohibition, herein petitioners allege that
the respondent judge has acted without jurisdiction or in excess
of his jurisdiction:
I. Because said respondent judge lacks the power to place
respondent Mariano Cu Unjieng under probation for the
following reason:
(1) Under section 11 of Act No. 4221, the said of
the Philippine Legislature is made to apply only
to the provinces of the Philippines; it nowhere
states that it is to be made applicable to
chartered cities like the City of Manila.
(2) While section 37 of the Administrative Code
contains a proviso to the effect that in the
absence of a special provision, the term
"province" may be construed to include the City
of Manila for the purpose of giving effect to
laws of general application, it is also true that
Act No. 4221 is not a law of general application
because it is made to apply only to those
provinces in which the respective provincial
boards shall have provided for the salary of a
probation officer.
(3) Even if the City of Manila were considered to
be a province, still, Act No. 4221 would not be
applicable to it because it has provided for the
salary of a probation officer as required by
section 11 thereof; it being immaterial that
there is an Insular Probation Officer willing to
act for the City of Manila, said Probation Officer
provided for in section 10 of Act No. 4221 being
different and distinct from the Probation Officer
provided for in section 11 of the same Act.
II. Because even if the respondent judge originally had
jurisdiction to entertain the application for probation of the
respondent Mariano Cu Unjieng, he nevertheless acted without
jurisdiction or in excess thereof in continuing to entertain the
motion for reconsideration and by failing to commit Mariano Cu
Unjieng to prison after he had promulgated his resolution of
June 28, 1937, denying Mariano Cu Unjieng's application for
probation, for the reason that:
(1) His jurisdiction and power in probation
proceedings is limited by Act No. 4221 to the
granting or denying of applications for
probation.
(2) After he had issued the order denying
Mariano Cu Unjieng's petition for probation on
 June 28, 1937, it became final and executory at
the moment of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to
grant a rehearing of said order or to modify or
change the same.
III. Because the respondent judge made a finding that Mariano
Cu Unjieng is innocent of the crime for which he was convicted
by final judgment of this court, which finding is not only
presumptuous but without foundation in fact and in law, and is
furthermore in contempt of this court and a violation of the
respondent's oath of office as ad interim judge of first instance.
IV. Because the respondent judge has violated and continues to
violate his duty, which became imperative when he issued his
order of June 28, 1937, denying the application for probation, to
commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and
adequate remedy in the ordinary course of law.
In a supplementary petition filed on September 9, 1937, the
petitioner Hongkong and Shanghai Banking Corporation further
contends that Act No. 4221 of the Philippine Legislature
providing for a system of probation for persons eighteen years
of age or over who are convicted of crime, is unconstitutional
because it is violative of section 1, subsection (1), Article III, of
the Constitution of the Philippines guaranteeing equal
protection of the laws because it confers upon the provincial
board of its province the absolute discretion to make said law
operative or otherwise in their respective provinces, because it
constitutes an unlawful and improper delegation to the
provincial boards of the several provinces of the legislative
power lodged by the Jones Law (section 8) in the Philippine
Legislature and by the Constitution (section 1, Art. VI) in the
National Assembly; and for the further reason that it gives the
provincial boards, in contravention of the Constitution (section
2, Art. VIII) and the Jones Law (section 28), the authority to
enlarge the powers of the Court of First Instance of different
provinces without uniformity. In another supplementary
petition dated September 14, 1937, the Fiscal of the City of
Manila, in behalf of one of the petitioners, the People of the
Philippine Islands, concurs for the first time with the issues
raised by other petitioner regarding the constitutionality of Act
No. 4221, and on the oral argument held on October 6, 1937,
further elaborated on the theory that probation is a form of
reprieve and therefore Act. No. 4221 is an encroachment on the
exclusive power of the Chief Executive to grant pardons and
reprieves. On October 7, 1937, the City Fiscal filed two
memorandums in which he contended that Act No. 4221 not
only encroaches upon the pardoning power to the executive,
but also constitute an unwarranted delegation of legislative
power and a denial of the equal protection of the laws. On
October 9, 1937, two memorandums, signed jointly by the City
Fiscal and the Solicitor-General, acting in behalf of the People of
the Philippine Islands, and by counsel for the petitioner, the
Hongkong and Shanghai Banking Corporation, one sustaining
the power of the state to impugn the validity of its own laws
and the other contending that Act No. 4221 constitutes an
unwarranted delegation of legislative power, were presented.
Another joint memorandum was filed by the same persons on
the same day, October 9, 1937, alleging that Act No. 4221 is
unconstitutional because it denies the equal protection of the
laws and constitutes an unlawful delegation of legislative power
and, further, that the whole Act is void: that the
Commonwealth is not estopped from questioning the validity of
its laws; that the private prosecution may intervene in
probation proceedings and may attack the probation law as
unconstitutional; and that this court may pass upon the
constitutional question in prohibition proceedings.
Respondents in their answer dated August 31, 1937, as well as
in their oral argument and memorandums, challenge each and
every one of the foregoing proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts
sufficient in law to warrant the issuance of the writ
of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the
remedy sought by the petitioners is the very same
remedy prayed for by them before the trial court and
was still pending resolution before the trial court when
the present petition was filed with this court.
(3) That the petitioners having themselves raised the
question as to the execution of judgment before the
trial court, said trial court has acquired exclusive
jurisdiction to resolve the same under the theory that
its resolution denying probation is unappealable.
(4) That upon the hypothesis that this court has
concurrent jurisdiction with the Court of First Instance
to decide the question as to whether or not the
execution will lie, this court nevertheless cannot
exercise said jurisdiction while the Court of First
Instance has assumed jurisdiction over the same upon
motion of herein petitioners themselves.
(5) That upon the procedure followed by the herein
petitioners in seeking to deprive the trial court of its
jurisdiction over the case and elevate the proceedings
to this court, should not be tolerated because it impairs
the authority and dignity of the trial court which court
while sitting in the probation cases is "a court of limited
jurisdiction but of great dignity."
(6) That under the supposition that this court has
jurisdiction to resolve the question submitted to and
pending resolution by the trial court, the present action
would not lie because the resolution of the trial court
denying probation is appealable; for although the
Probation Law does not specifically provide that an
applicant for probation may appeal from a resolution of
the Court of First Instance denying probation, still it is a
general rule in this jurisdiction that a final order,
resolution or decision of an inferior court is appealable
to the superior court.
(7) That the resolution of the trial court denying
probation of herein respondent Mariano Cu Unjieng
being appealable, the same had not become final and
executory for the reason that the said respondent had
filed an alternative motion for reconsideration and new
trial within the requisite period of fifteen days, which
motion the trial court was able to resolve in view of the
restraining order improvidently and erroneously issued
by this court.lawphi1.net
(8) That the Fiscal of the City of Manila had by
implication admitted that the resolution of the trial
court denying probation is not final and unappealable
when he presented his answer to the motion for
reconsideration and agreed to the postponement of the
hearing of the said motion.
(9) That under the supposition that the order of the trial
court denying probation is not appealable, it is
incumbent upon the accused to file an action for the
issuance of the writ of certiorari with mandamus, it
appearing that the trial court, although it believed that
the accused was entitled to probation, nevertheless
denied probation for fear of criticism because the
accused is a rich man; and that, before a petition
for certiorari grounded on an irregular exercise of
jurisdiction by the trial court could lie, it is incumbent
upon the petitioner to file a motion for reconsideration
specifying the error committed so that the trial court
could have an opportunity to correct or cure the same.
(10) That on hypothesis that the resolution of this court
is not appealable, the trial court retains its jurisdiction
within a reasonable time to correct or modify it in
accordance with law and justice; that this power to alter
or modify an order or resolution is inherent in the
courts and may be exercise either motu proprio or upon
petition of the proper party, the petition in the latter
case taking the form of a motion for reconsideration.
(11) That on the hypothesis that the resolution of the
trial court is appealable as respondent allege, said court
cannot order execution of the same while it is on
appeal, for then the appeal would not be availing
because the doors of probation will be closed from the
moment the accused commences to serve his sentence
(Act No. 4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for
the respondents maintain that Act No. 4221 is constitutional
because, contrary to the allegations of the petitioners, it does
not constitute an undue delegation of legislative power, does
not infringe the equal protection clause of the Constitution, and
does not encroach upon the pardoning power of the Executive.
In an additional memorandum filed on the same date, counsel
for the respondents reiterate the view that section 11 of Act No.
4221 is free from constitutional objections and contend, in
addition, that the private prosecution may not intervene in
probation proceedings, much less question the validity of Act
No. 4221; that both the City Fiscal and the Solicitor-General are
estopped from questioning the validity of the Act; that the
validity of Act cannot be attacked for the first time before this
court; that probation in unavailable; and that, in any event,
section 11 of the Act No. 4221 is separable from the rest of the
Act. The last memorandum for the respondent Mariano Cu
Unjieng was denied for having been filed out of time but was
admitted by resolution of this court and filed anew on
November 5, 1937. This memorandum elaborates on some of
the points raised by the respondents and refutes those brought
up by the petitioners.
In the scrutiny of the pleadings and examination of the various
aspects of the present case, we noted that the court below, in
passing upon the merits of the application of the respondent
Mariano Cu Unjieng and in denying said application assumed
the task not only of considering the merits of the application,
but of passing upon the culpability of the applicant,
notwithstanding the final pronouncement of guilt by this court.
(G.R. No. 41200.) Probation implies guilt be final judgment.
While a probation case may look into the circumstances
attending the commission of the offense, this does not
authorize it to reverse the findings and conclusive of this court,
either directly or indirectly, especially wherefrom its own
admission reliance was merely had on the printed briefs,
averments, and pleadings of the parties. As already observed by
this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and
reiterated in subsequent cases, "if each and every Court of First
Instance could enjoy the privilege of overruling decisions of the
Supreme Court, there would be no end to litigation, and judicial
chaos would result." A becoming modesty of inferior courts
demands conscious realization of the position that they occupy
in the interrelation and operation of the intergrated judicial
system of the nation.
After threshing carefully the multifarious issues raised by both
counsel for the petitioners and the respondents, this court
prefers to cut the Gordian knot and take up at once the two
fundamental questions presented, namely, (1) whether or not
the constitutionality of Act No. 4221 has been properly raised in
these proceedings; and (2) in the affirmative, whether or not
said Act is constitutional. Considerations of these issues will
involve a discussion of certain incidental questions raised by the
parties.
To arrive at a correct conclusion on the first question, resort to
certain guiding principles is necessary. It is a well-settled rule
that the constitutionality of an act of the legislature will not be
determined by the courts unless that question is properly raised
and presented inappropriate cases and is necessary to a
determination of the case; i.e., the issue of constitutionality
must be the very lis mota presented. (McGirr vs. Hamilton and
Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J.,
pp. 780-782, 783.)
The question of the constitutionality of an act of the legislature
is frequently raised in ordinary actions. Nevertheless, resort
may be made to extraordinary legal remedies, particularly
where the remedies in the ordinary course of law even if
available, are not plain, speedy and adequate. Thus, in Cu
Unjieng vs. Patstone ([1922]), 42 Phil., 818), this court held that
the question of the constitutionality of a statute may be raised
by the petitioner in mandamus proceedings (see, also, 12 C. J.,
p. 783); and in Government of the Philippine Islands vs.
Springer ([1927], 50 Phil., 259 [affirmed in Springer vs.
Government of the Philippine Islands (1928), 277 U. S., 189; 72
Law. ed., 845]), this court declared an act of the legislature
unconstitutional in an action of quo warranto brought in the
name of the Government of the Philippines. It has also been
held that the constitutionality of a statute may be questioned
in habeas corpus proceedings (12 C. J., p. 783; Bailey on Habeas
Corpus, Vol. I, pp. 97, 117), although there are authorities to the
contrary; on an application for injunction to restrain action
under the challenged statute (mandatory, see Cruz vs.
Youngberg [1931], 56 Phil., 234); and even on an application for
preliminary injunction where the determination of the
constitutional question is necessary to a decision of the case.
(12 C. J., p. 783.) The same may be said as
regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad
[1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059;
Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81 Pac.,
875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and
cases cited). The case of Yu Cong Eng vs. Trinidad, supra,
decided by this court twelve years ago was, like the present
one, an original action for certiorari and prohibition. The
constitutionality of Act No. 2972, popularly known as the
Chinese Bookkeeping Law, was there challenged by the
petitioners, and the constitutional issue was not met squarely
by the respondent in a demurrer. A point was raised "relating to
the propriety of the constitutional question being decided in
original proceedings in prohibition." This court decided to take
up the constitutional question and, with two justices dissenting,
held that Act No. 2972 was constitutional. The case was
elevated on writ of certiorari to the Supreme Court of the
United States which reversed the judgment of this court and
held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.)
On the question of jurisdiction, however, the Federal Supreme
Court, though its Chief Justice, said:
By the Code of Civil Procedure of the Philippine Islands,
section 516, the Philippine supreme court is granted
concurrent jurisdiction in prohibition with courts of first
instance over inferior tribunals or persons, and original
jurisdiction over courts of first instance, when such
courts are exercising functions without or in excess of
their jurisdiction. It has been held by that court that the
question of the validity of the criminal statute must
usually be raised by a defendant in the trial court and
be carried regularly in review to the Supreme Court.
(Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26
Phil., 192). But in this case where a new act seriously
affected numerous persons and extensive property
rights, and was likely to cause a multiplicity of actions,
the Supreme Court exercised its discretion to bring the
issue to the act's validity promptly before it and decide
in the interest of the orderly administration of justice.
The court relied by analogy upon the cases of Ex
parte Young (209 U. S., 123;52 Law ed., 714; 13 L. R. A.
[N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764;
Traux vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A.
1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283;
and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L.
R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A,
1024). Although objection to the jurisdiction was raise
by demurrer to the petition, this is now disclaimed on
behalf of the respondents, and both parties ask a
decision on the merits. In view of the broad powers in
prohibition granted to that court under the Island Code,
we acquiesce in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing
out of a court of superior jurisdiction and directed to an inferior
court, for the purpose of preventing the inferior tribunal from
usurping a jurisdiction with which it is not legally vested. (High,
Extraordinary Legal Remedies, p. 705.) The general rule,
although there is a conflict in the cases, is that the merit of
prohibition will not lie whether the inferior court has
jurisdiction independent of the statute the constitutionality of
which is questioned, because in such cases the interior court
having jurisdiction may itself determine the constitutionality of
the statute, and its decision may be subject to review, and
consequently the complainant in such cases ordinarily has
adequate remedy by appeal without resort to the writ of
prohibition. But where the inferior court or tribunal derives its
jurisdiction exclusively from an unconstitutional statute, it may
be prevented by the writ of prohibition from enforcing that
statute. (50 C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In
re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912],
109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79
Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185;
Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings derived
their jurisdiction solely from Act No. 4221 which prescribes in
detailed manner the procedure for granting probation to
accused persons after their conviction has become final and
before they have served their sentence. It is true that at
common law the authority of the courts to suspend temporarily
the execution of the sentence is recognized and, according to a
number of state courts, including those of Massachusetts,
Michigan, New York, and Ohio, the power is inherent in the
courts (Commonwealth vs. Dowdican's Bail [1874], 115 Mass.,
133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497;
People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288;
Weber vs. State [1898], 58 Ohio St., 616). But, in the leading
case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed.,
129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B,
355), the Supreme Court of the United States expressed the
opinion that under the common law the power of the court was
limited to temporary suspension, and brushed aside the
contention as to inherent judicial power saying, through Chief
Justice White:
Indisputably under our constitutional system the right
to try offenses against the criminal laws and upon
conviction to impose the punishment provided by law is
 judicial, and it is equally to be conceded that, in exerting
the powers vested in them on such subject, courts
inherently possess ample right to exercise reasonable,
that is, judicial, discretion to enable them to wisely
exert their authority. But these concessions afford no
ground for the contention as to power here made, since
it must rest upon the proposition that the power to
enforce begets inherently a discretion to permanently
refuse to do so. And the effect of the proposition urged
upon the distribution of powers made by the
Constitution will become apparent when it is observed
that indisputable also is it that the authority to define
and fix the punishment for crime is legislative and
includes the right in advance to bring within judicial
discretion, for the purpose of executing the statute,
elements of consideration which would be otherwise
beyond the scope of judicial authority, and that the
right to relieve from the punishment, fixed by law and
ascertained according to the methods by it provided
belongs to the executive department.
Justice Carson, in his illuminating concurring opinion in the case
of Director of Prisons vs. Judge of First Instance of Cavite (29
Phil., 265), decided by this court in 1915, also reached the
conclusion that the power to suspend the execution of
sentences pronounced in criminal cases is not inherent in the
judicial function. "All are agreed", he said, "that in the absence
of statutory authority, it does not lie within the power of the
courts to grant such suspensions." (at p. 278.) Both petitioner
and respondents are correct, therefore, when they argue that a
Court of First Instance sitting in probation proceedings is a court
of limited jurisdiction. Its jurisdiction in such proceedings is
conferred exclusively by Act No. 4221 of the Philippine
Legislature.
It is, of course, true that the constitutionality of a statute will
not be considered on application for prohibition where the
question has not been properly brought to the attention of the
court by objection of some kind (Hill vs. Tarver [1901], 130 Ala.,
592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120;
168 S. W., 746). In the case at bar, it is unquestionable that the
constitutional issue has been squarely presented not only
before this court by the petitioners but also before the trial
court by the private prosecution. The respondent, Hon. Jose O
Vera, however, acting as judge of the court below, declined to
pass upon the question on the ground that the private
prosecutor, not being a party whose rights are affected by the
statute, may not raise said question. The respondent judge cited
Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec.
177, pp. 760 and 762), and McGlue vs. Essex County ([1916],
225 Mass., 59; 113 N. E., 742, 743), as authority for the
proposition that a court will not consider any attack made on
the constitutionality of a statute by one who has no interest in
defeating it because his rights are not affected by its operation.
The respondent judge further stated that it may not motu
proprio take up the constitutional question and, agreeing with
Cooley that "the power to declare a legislative enactment void
is one which the judge, conscious of the fallibility of the human
judgment, will shrink from exercising in any case where he can
conscientiously and with due regard to duty and official oath
decline the responsibility" (Constitutional Limitations, 8th ed.,
Vol. I, p. 332), proceeded on the assumption that Act No. 4221
is constitutional. While therefore, the court a quo admits that
the constitutional question was raised before it, it refused to
consider the question solely because it was not raised by a
proper party. Respondents herein reiterates this view. The
argument is advanced that the private prosecution has no
personality to appear in the hearing of the application for
probation of defendant Mariano Cu Unjieng in criminal case No.
42648 of the Court of First Instance of Manila, and hence the
issue of constitutionality was not properly raised in the lower
court. Although, as a general rule, only those who are parties to
a suit may question the constitutionality of a statute involved in
a judicial decision, it has been held that since the decree
pronounced by a court without jurisdiction is void, where the
jurisdiction of the court depends on the validity of the statute in
question, the issue of the constitutionality will be considered on
its being brought to the attention of the court by persons
interested in the effect to be given the statute.(12 C. J., sec.
184, p. 766.) And, even if we were to concede that the issue was
not properly raised in the court below by the proper party, it
does not follow that the issue may not be here raised in an
original action of certiorari and prohibitions. It is true that, as a
general rule, the question of constitutionality must be raised at
the earliest opportunity, so that if not raised by the pleadings,
ordinarily it may not be raised at the trial, and if not raised in
the trial court, it will not considered on appeal. (12 C. J., p.
786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario,
26 Phil., 192, 193-195.) But we must state that the general rule
admits of exceptions. Courts, in the exercise of sounds
discretion, may determine the time when a question affecting
the constitutionality of a statute should be presented. (In
re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases,
although there is a very sharp conflict of authorities, it is said
that the question may be raised for the first time at any stage of
the proceedings, either in the trial court or on appeal. (12 C. J.,
p. 786.) Even in civil cases, it has been held that it is the duty of
a court to pass on the constitutional question, though raised for
the first time on appeal, if it appears that a determination of the
question is necessary to a decision of the case. (McCabe's Adm'x
vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892;
Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S.
W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo.,
572; 87 S. W., 913.) And it has been held that a constitutional
question will be considered by an appellate court at any time,
where it involves the jurisdiction of the court below (State vs.
Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this
court to consider the constitutional question raised for the first
time before this court in these proceedings, we turn again and
point with emphasis to the case of Yu Cong Eng vs. Trinidad,
supra. And on the hypotheses that the Hongkong & Shanghai
Banking Corporation, represented by the private prosecution, is
not the proper party to raise the constitutional question here —
a point we do not now have to decide — we are of the opinion
that the People of the Philippines, represented by the Solicitor-
General and the Fiscal of the City of Manila, is such a proper
party in the present proceedings. The unchallenged rule is that
the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has
sustained, or will sustained, direct injury as a result of its
enforcement. It goes without saying that if Act No. 4221 really
violates the constitution, the People of the Philippines, in whose
name the present action is brought, has a substantial interest in
having it set aside. Of grater import than the damage caused by
the illegal expenditure of public funds is the mortal wound
inflicted upon the fundamental law by the enforcement of an
invalid statute. Hence, the well-settled rule that the state can
challenge the validity of its own laws. In Government of the
Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in
Springer vs. Government of the Philippine Islands [1928], 277
U.S., 189; 72 Law. ed., 845), this court declared an act of the
legislature unconstitutional in an action instituted in behalf of
the Government of the Philippines. In Attorney General vs.
Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428,
429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the
respondents to renew a mining corporation, alleging that the
statute under which the respondents base their right was
unconstitutional because it impaired the obligation of contracts.
The capacity of the chief law officer of the state to question the
constitutionality of the statute was though, as a general rule,
only those who are parties to a suit may question the
constitutionality of a statute involved in a judicial decision, it
has been held that since the decree pronounced by a court
without jurisdiction in void, where the jurisdiction of the court
depends on the validity of the statute in question, the issue of
constitutionality will be considered on its being brought to the
attention of the court by persons interested in the effect to
begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we
were to concede that the issue was not properly raised in the
court below by the proper party, it does not follow that the
issue may not be here raised in an original action of certiorari
and prohibition. It is true that, as a general rule, the question of
constitutionality must be raised at the earliest opportunity, so
that if not raised by the pleadings, ordinarily it may not be
raised a the trial, and if not raised in the trial court, it will not be
considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-
Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But
we must state that the general rule admits of exceptions.
Courts, in the exercise of sound discretion, may determine the
time when a question affecting the constitutionality of a statute
should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.)
Thus, in criminal cases, although there is a very sharp conflict of
authorities, it is said that the question may be raised for the first
time at any state of the proceedings, either in the trial court or
on appeal. (12 C.J., p. 786.) Even in civil cases, it has been held
that it is the duty of a court to pass on the constitutional
question, though raised for first time on appeal, if it appears
that a determination of the question is necessary to a decision
of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910],
136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co.
[1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs. St. Louis
Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been
held that a constitutional question will be considered by an
appellate court at any time, where it involves the jurisdiction of
the court below (State vs. Burke [1911], 175 Ala., 561; 57 S.,
870.) As to the power of this court to consider the constitutional
question raised for the first time before this court in these
proceedings, we turn again and point with emphasis to the case
of Yu Cong Eng. vs. Trinidad, supra. And on the hypothesis that
the Hongkong & Shanghai Banking Corporation, represented by
the private prosecution, is not the proper party to raise the
constitutional question here — a point we do not now have to
decide — we are of the opinion that the People of the
Philippines, represented by the Solicitor-General and the Fiscal
of the City of Manila, is such a proper party in the present
proceedings. The unchallenged rule is that the person who
impugns the validity of a statute must have a personal and
substantial interest in the case such that he has sustained, or
will sustain, direct injury as a result of its enforcement. It goes
without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose name the
present action is brought, has a substantial interest in having it
set aside. Of greater import than the damage caused by the
illegal expenditure of public funds is the mortal wound inflicted
upon the fundamental law by the enforcement of an invalid
statute. Hence, the well-settled rule that the state can challenge
the validity of its own laws. In Government of the Philippine
Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer
vs. Government of the Philippine Islands [1928], 277 U.S., 189;
72 Law. ed., 845), this court declared an act of the legislature
unconstitutional in an action instituted in behalf of the
Government of the Philippines. In Attorney General vs.
Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428,
429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the
respondents to renew a mining corporation, alleging that the
statute under which the respondents base their right was
unconstitutional because it impaired the obligation of contracts.
The capacity of the chief law officer of the state to question the
constitutionality of the statute was itself questioned. Said the
Supreme Court of Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped
from questioning the validity of a law enacted by their
representatives; that to an accusation by the people of
Michigan of usurpation their government, a statute
enacted by the people of Michigan is an adequate
answer. The last proposition is true, but, if the statute
relied on in justification is unconstitutional, it is statute
only in form, and lacks the force of law, and is of no
more saving effect to justify action under it than if it
had never been enacted. The constitution is the
supreme law, and to its behests the courts, the
legislature, and the people must bow . . . The legislature
and the respondents are not the only parties in interest
upon such constitutional questions. As was remarked by
Mr. Justice Story, in speaking of an acquiescence by a
party affected by an unconstitutional act of the
legislature: "The people have a deep and vested interest
in maintaining all the constitutional limitations upon the
exercise of legislative powers." (Allen vs. Mckeen, 1
Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an
original action (mandamus) was brought by the Attorney-
General of Kansas to test the constitutionality of a statute of the
state. In disposing of the question whether or not the state may
bring the action, the Supreme Court of Kansas said:
 . . . the state is a proper party — indeed, the proper
party — to bring this action. The state is always
interested where the integrity of its Constitution or
statutes is involved.
"It has an interest in seeing that the will of the
Legislature is not disregarded, and need not, as
an individual plaintiff must, show grounds of
fearing more specific injury. (State vs. Kansas
City 60 Kan., 518 [57 Pac., 118])." (State vs.
Lawrence, 80 Kan., 707; 103 Pac., 839.)
Where the constitutionality of a statute is in doubt the
state's law officer, its Attorney-General, or county
attorney, may exercise his bet judgment as to what sort
of action he will bring to have the matter determined,
either by quo warranto to challenge its validity (State
vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662),
by mandamus to compel obedience to its terms (State
vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction
to restrain proceedings under its questionable
provisions (State ex rel. vs. City of Neodesha, 3 Kan.
App., 319; 45 Pac., 122).
Other courts have reached the same conclusion (See State vs.
St. Louis S. W. Ry. Co. [1917], 197 S. W., 1006; State vs. S.H.
Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181
La., 597; 160 S., 91; State vs. Board of County Comr's [1934], 39
Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917], 211
N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339;
119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8,
10, 11). In the case last cited, the Supreme Court of Luisiana
said:
It is contended by counsel for Herbert Watkins that a
district attorney, being charged with the duty of
enforcing the laws, has no right to plead that a law is
unconstitutional. In support of the argument three
decisions are cited, viz.: State ex rel. Hall, District
Attorney, vs. Judge of Tenth Judicial District (33 La.
Ann., 1222); State ex rel. Nicholls, Governor vs.
Shakespeare, Mayor of New Orleans (41 Ann., 156; 6
So., 592); and State ex rel., Banking Co., etc. vs. Heard,
Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512).
These decisions do not forbid a district attorney to
plead that a statute is unconstitutional if he finds if in
conflict with one which it is his duty to enforce. In
State ex rel. Hall, District Attorney, vs. Judge, etc., the
ruling was the judge should not, merely because he
believed a certain statute to be unconstitutional forbid
the district attorney to file a bill of information charging
a person with a violation of the statute. In other words,
a judge should not judicially declare a statute
unconstitutional until the question of constitutionality is
tendered for decision, and unless it must be decided in
order to determine the right of a party litigant. State ex
rel. Nicholls, Governor, etc., is authority for the
proposition merely that an officer on whom a statute
imposes the duty of enforcing its provisions cannot
avoid the duty upon the ground that he considers the
statute unconstitutional, and hence in enforcing the
statute he is immune from responsibility if the statute
be unconstitutional. State ex rel. Banking Co., etc., is
authority for the proposition merely that executive
officers, e.g., the state auditor and state treasurer,
should not decline to perform ministerial duties
imposed upon them by a statute, on the ground that
they believe the statute is unconstitutional.
It is the duty of a district attorney to enforce the
criminal laws of the state, and, above all, to support the
Constitution of the state. If, in the performance of his
duty he finds two statutes in conflict with each other, or
one which repeals another, and if, in his judgment, one
of the two statutes is unconstitutional, it is his duty to
enforce the other; and, in order to do so, he is
compelled to submit to the court, by way of a plea, that
one of the statutes is unconstitutional. If it were not so,
the power of the Legislature would be free from
constitutional limitations in the enactment of criminal
laws.
The respondents do not seem to doubt seriously the
correctness of the general proposition that the state may
impugn the validity of its laws. They have not cited any
authority running clearly in the opposite direction. In fact, they
appear to have proceeded on the assumption that the rule as
stated is sound but that it has no application in the present
case, nor may it be invoked by the City Fiscal in behalf of the
People of the Philippines, one of the petitioners herein, the
principal reasons being that the validity before this court, that
the City Fiscal is estopped from attacking the validity of the Act
and, not authorized challenge the validity of the Act in its
application outside said city. (Additional memorandum of
respondents, October 23, 1937, pp. 8,. 10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied
upon the past and all that time has not been attacked as
unconstitutional by the Fiscal of Manila but, on the contrary,
has been impliedly regarded by him as constitutional, is no
reason for considering the People of the Philippines estopped
from nor assailing its validity. For courts will pass upon a
constitutional questions only when presented before it in bona
fide cases for determination, and the fact that the question has
not been raised before is not a valid reason for refusing to allow
it to be raised later. The fiscal and all others are justified in
relying upon the statute and treating it as valid until it is held
void by the courts in proper cases.
It remains to consider whether the determination of the
constitutionality of Act No. 4221 is necessary to the resolution
of the instant case. For, ". . . while the court will meet the
question with firmness, where its decision is indispensable, it is
the part of wisdom, and just respect for the legislature, renders
it proper, to waive it, if the case in which it arises, can be
decided on other points." (Ex parte Randolph [1833], 20 F. Cas.
No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9
Ind., 286, 287.) It has been held that the determination of a
constitutional question is necessary whenever it is essential to
the decision of the case (12 C. J., p. 782, citing Long Sault Dev.
Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454
[aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app
dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520;
Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs.
Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where
the right of a party is founded solely on a statute the validity of
which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs.
Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly,
188 Mass., 81; 74 N.E., 306). There is no doubt that the
respondent Cu Unjieng draws his privilege to probation solely
from Act No. 4221 now being assailed.
Apart from the foregoing considerations, that court will also
take cognizance of the fact that the Probation Act is a new
addition to our statute books and its validity has never before
been passed upon by the courts; that may persons accused and
convicted of crime in the City of Manila have applied for
probation; that some of them are already on probation; that
more people will likely take advantage of the Probation Act in
the future; and that the respondent Mariano Cu Unjieng has
been at large for a period of about four years since his first
conviction. All wait the decision of this court on the
constitutional question. Considering, therefore, the importance
which the instant case has assumed and to prevent multiplicity
of suits, strong reasons of public policy demand that the
constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng
vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law.
ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913],
207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis
vs. Falk Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A.
[N.S.] 489; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil.,
304.) In Yu Cong Eng vs. Trinidad, supra, an analogous situation
confronted us. We said: "Inasmuch as the property and
personal rights of nearly twelve thousand merchants are
affected by these proceedings, and inasmuch as Act No. 2972 is
a new law not yet interpreted by the courts, in the interest of
the public welfare and for the advancement of public policy, we
have determined to overrule the defense of want of jurisdiction
in order that we may decide the main issue. We have here an
extraordinary situation which calls for a relaxation of the
general rule." Our ruling on this point was sustained by the
Supreme Court of the United States. A more binding authority in
support of the view we have taken can not be found.
We have reached the conclusion that the question of the
constitutionality of Act No. 4221 has been properly raised. Now
for the main inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of
the judiciary to enforce the Constitution. This court, by clear
implication from the provisions of section 2, subsection 1, and
section 10, of Article VIII of the Constitution, may declare an act
of the national legislature invalid because in conflict with the
fundamental lay. It will not shirk from its sworn duty to enforce
the Constitution. And, in clear cases, it will not hesitate to give
effect to the supreme law by setting aside a statute in conflict
therewith. This is of the essence of judicial duty.
This court is not unmindful of the fundamental criteria in cases
of this nature that all reasonable doubts should be resolved in
favor of the constitutionality of a statute. An act of the
legislature approved by the executive, is presumed to be within
constitutional limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the legislature
as well. "The question of the validity of every statute is first
determined by the legislative department of the government
itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of
Health and Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson
[1913], 26 Phil., 1.) And a statute finally comes before the courts
sustained by the sanction of the executive. The members of the
Legislature and the Chief Executive have taken an oath to
support the Constitution and it must be presumed that they
have been true to this oath and that in enacting and sanctioning
a particular law they did not intend to violate the Constitution.
The courts cannot but cautiously exercise its power to overturn
the solemn declarations of two of the three grand departments
of the governments. (6 R.C.L., p. 101.) Then, there is that
peculiar political philosophy which bids the judiciary to reflect
the wisdom of the people as expressed through an elective
Legislature and an elective Chief Executive. It follows, therefore,
that the courts will not set aside a law as violative of the
Constitution except in a clear case. This is a proposition too
plain to require a citation of authorities.
One of the counsel for respondents, in the course of his
impassioned argument, called attention to the fact that the
President of the Philippines had already expressed his opinion
against the constitutionality of the Probation Act, adverting that
as to the Executive the resolution of this question was a
foregone conclusion. Counsel, however, reiterated his
confidence in the integrity and independence of this court. We
take notice of the fact that the President in his message dated
September 1, 1937, recommended to the National Assembly
the immediate repeal of the Probation Act (No. 4221); that this
message resulted in the approval of Bill No. 2417 of the
Nationality Assembly repealing the probation Act, subject to
certain conditions therein mentioned; but that said bill was
vetoed by the President on September 13, 1937, much against
his wish, "to have stricken out from the statute books of the
Commonwealth a law . . . unfair and very likely
unconstitutional." It is sufficient to observe in this connection
that, in vetoing the bill referred to, the President exercised his
constitutional prerogative. He may express the reasons which
he may deem proper for taking such a step, but his reasons are
not binding upon us in the determination of actual
controversies submitted for our determination. Whether or not
the Executive should express or in any manner insinuate his
opinion on a matter encompassed within his broad
constitutional power of veto but which happens to be at the
same time pending determination in this court is a question of
propriety for him exclusively to decide or determine. Whatever
opinion is expressed by him under these circumstances,
however, cannot sway our judgment on way or another and
prevent us from taking what in our opinion is the proper course
of action to take in a given case. It if is ever necessary for us to
make any vehement affirmance during this formative period of
our political history, it is that we are independent of the
Executive no less than of the Legislative department of our
government — independent in the performance of our
functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the
accomplishment of our sworn duty as we see it and as we
understand it.
The constitutionality of Act No. 4221 is challenged on three
principal grounds: (1) That said Act encroaches upon the
pardoning power of the Executive; (2) that its constitutes an
undue delegation of legislative power and (3) that it denies the
equal protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916,
commonly known as the Jones Law, in force at the time of the
approval of Act No. 4221, otherwise known as the Probation
Act, vests in the Governor-General of the Philippines "the
exclusive power to grant pardons and reprieves and remit fines
and forfeitures". This power is now vested in the President of
the Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of
the Jones Law and the Constitution differ in some respects. The
adjective "exclusive" found in the Jones Law has been omitted
from the Constitution. Under the Jones Law, as at common law,
pardon could be granted any time after the commission of the
offense, either before or after conviction (Vide Constitution of
the United States, Art. II, sec. 2; In re Lontok [1922], 43 Phil.,
293). The Governor-General of the Philippines was thus
empowered, like the President of the United States, to pardon a
person before the facts of the case were fully brought to light.
The framers of our Constitution thought this undesirable and,
following most of the state constitutions, provided that the
pardoning power can only be exercised "after conviction". So,
too, under the new Constitution, the pardoning power does not
extend to "cases of impeachment". This is also the rule
generally followed in the United States (Vide Constitution of the
United States, Art. II, sec. 2). The rule in England is different.
There, a royal pardon can not be pleaded in bar of an
impeachment; "but," says Blackstone, "after the impeachment
has been solemnly heard and determined, it is not understood
that the king's royal grace is further restrained or abridged."
(Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421;
Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699;
Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.)
The reason for the distinction is obvious. In England, Judgment
on impeachment is not confined to mere "removal from office
and disqualification to hold and enjoy any office of honor, trust,
or profit under the Government" (Art. IX, sec. 4, Constitution of
the Philippines) but extends to the whole punishment attached
by law to the offense committed. The House of Lords, on a
conviction may, by its sentence, inflict capital punishment,
perpetual banishment, perpetual banishment, fine or
imprisonment, depending upon the gravity of the offense
committed, together with removal from office and incapacity to
hold office. (Com. vs. Lockwood, supra.) Our Constitution also
makes specific mention of "commutation" and of the power of
the executive to impose, in the pardons he may grant, such
conditions, restrictions and limitations as he may deem proper.
Amnesty may be granted by the President under the
Constitution but only with the concurrence of the National
Assembly. We need not dwell at length on the significance of
these fundamental changes. It is sufficient for our purposes to
state that the pardoning power has remained essentially the
same. The question is: Has the pardoning power of the Chief
Executive under the Jones Law been impaired by the Probation
Act?
As already stated, the Jones Law vests the pardoning power
exclusively in the Chief Executive. The exercise of the power
may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive
cannot be taken away nor fettered by any legislative
restrictions, nor can like power be given by the legislature to
any other officer or authority. The coordinate departments of
government have nothing to do with the pardoning power,
since no person properly belonging to one of the departments
can exercise any powers appertaining to either of the others
except in cases expressly provided for by the constitution." (20
R.C.L., pp., , and cases cited.) " . . . where the pardoning power
is conferred on the executive without express or implied
limitations, the grant is exclusive, and the legislature can neither
exercise such power itself nor delegate it elsewhere, nor
interfere with or control the proper exercise thereof, . . ." (12
C.J., pp. 838, 839, and cases cited.) If Act No. 4221, then,
confers any pardoning power upon the courts it is for that
reason unconstitutional and void. But does it?
In the famous Killitts decision involving an embezzlement case,
the Supreme Court of the United States ruled in 1916 that an
order indefinitely suspending sentenced was void. (Ex
parte United States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A.
1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief
Justice White, after an exhaustive review of the authorities,
expressed the opinion of the court that under the common law
the power of the court was limited to temporary suspension
and that the right to suspend sentenced absolutely and
permanently was vested in the executive branch of the
government and not in the judiciary. But, the right of Congress
to establish probation by statute was conceded. Said the court
through its Chief Justice: ". . . and so far as the future is
concerned, that is, the causing of the imposition of penalties as
fixed to be subject, by probation legislation or such other means
as the legislative mind may devise, to such judicial discretion as
may be adequate to enable courts to meet by the exercise of an
enlarged but wise discretion the infinite variations which may
be presented to them for judgment, recourse must be had
Congress whose legislative power on the subject is in the very
nature of things adequately complete." (Quoted in Riggs vs.
United States [1926], 14 F. [2d], 5, 6.) This decision led the
National Probation Association and others to agitate for the
enactment by Congress of a federal probation law. Such action
was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159,
U.S.C. title 18, sec. 724). This was followed by an appropriation
to defray the salaries and expenses of a certain number of
probation officers chosen by civil service. (Johnson, Probation
for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct.
Rep., 146; 72 Law. ed., 309), the Supreme Court of the United
States, through Chief Justice Taft, held that when a person
sentenced to imprisonment by a district court has begun to
serve his sentence, that court has no power under the
Probation Act of March 4, 1925 to grant him probation even
though the term at which sentence was imposed had not yet
expired. In this case of Murray, the constitutionality of the
probation Act was not considered but was assumed. The court
traced the history of the Act and quoted from the report of the
Committee on the Judiciary of the United States House of
Representatives (Report No. 1377, 68th Congress, 2 Session) the
following statement:
Prior to the so-called Killitts case, rendered in
December, 1916, the district courts exercised a form of
probation either, by suspending sentence or by placing
the defendants under state probation officers or
volunteers. In this case, however (Ex parte United
States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178;
37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme
Court denied the right of the district courts to suspend
sentenced. In the same opinion the court pointed out
the necessity for action by Congress if the courts were
to exercise probation powers in the future . . .
Since this decision was rendered, two attempts have
been made to enact probation legislation. In 1917, a bill
was favorably reported by the Judiciary Committee and
passed the House. In 1920, the judiciary Committee
again favorably reported a probation bill to the House,
but it was never reached for definite action.
If this bill is enacted into law, it will bring the policy of
the Federal government with reference to its treatment
of those convicted of violations of its criminal laws in
harmony with that of the states of the Union. At the
present time every state has a probation law, and in all
but twelve states the law applies both to adult and
juvenile offenders. (see, also, Johnson, Probation for
Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been
sustained by inferior federal courts. In Riggs vs. United
States supra, the Circuit Court of Appeals of the Fourth Circuit
said:
Since the passage of the Probation Act of March 4,
1925, the questions under consideration have been
reviewed by the Circuit Court of Appeals of the Ninth
Circuit (7 F. [2d], 590), and the constitutionality of the
act fully sustained, and the same held in no manner to
encroach upon the pardoning power of the President.
This case will be found to contain an able and
comprehensive review of the law applicable here. It
arose under the act we have to consider, and to it and
the authorities cited therein special reference is made
(Nix vs. James, 7 F. [2d], 590, 594), as is also to a
decision of the Circuit Court of Appeals of the Seventh
Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise
construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United
States; in plain and unequivocal language, pointed to Congress
as possessing the requisite power to enact probation laws, that
a federal probation law as actually enacted in 1925, and that
the constitutionality of the Act has been assumed by the
Supreme Court of the United States in 1928 and consistently
sustained by the inferior federal courts in a number of earlier
cases.
We are fully convinced that the Philippine Legislature, like the
Congress of the United States, may legally enact a probation law
under its broad power to fix the punishment of any and all
penal offenses. This conclusion is supported by other
authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A.
1916A, 1285; 151 Pac., 698, the court said: "It is clearly within
the province of the Legislature to denominate and define all
classes of crime, and to prescribe for each a minimum and
maximum punishment." And in State vs. Abbott ([1910], 87 S.C.,
466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189),
the court said: "The legislative power to set punishment for
crime is very broad, and in the exercise of this power the
general assembly may confer on trial judges, if it sees fit, the
largest discretion as to the sentence to be imposed, as to the
beginning and end of the punishment and whether it should be
certain or indeterminate or conditional." (Quoted in State vs.
Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine
Legislature has defined all crimes and fixed the penalties for
their violation. Invariably, the legislature has demonstrated the
desire to vest in the courts — particularly the trial courts —
large discretion in imposing the penalties which the law
prescribes in particular cases. It is believed that justice can best
be served by vesting this power in the courts, they being in a
position to best determine the penalties which an individual
convict, peculiarly circumstanced, should suffer. Thus, while
courts are not allowed to refrain from imposing a sentence
merely because, taking into consideration the degree of malice
and the injury caused by the offense, the penalty provided by
law is clearly excessive, the courts being allowed in such case to
submit to the Chief Executive, through the Department of
Justice, such statement as it may deem proper (see art. 5,
Revised Penal Code), in cases where both mitigating and
aggravating circumstances are attendant in the commission of a
crime and the law provides for a penalty composed of two
indivisible penalties, the courts may allow such circumstances to
offset one another in consideration of their number and
importance, and to apply the penalty according to the result of
such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs.
Reguera and Asuategui [1921], 41 Phil., 506.) Again, article 64,
paragraph 7, of the Revised Penal Code empowers the courts to
determine, within the limits of each periods, in case the penalty
prescribed by law contains three periods, the extent of the evil
produced by the crime. In the imposition of fines, the courts are
allowed to fix any amount within the limits established by law,
considering not only the mitigating and aggravating
circumstances, but more particularly the wealth or means of the
culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of
the same Code provides that "a discretionary penalty shall be
imposed" upon a person under fifteen but over nine years of
age, who has not acted without discernment, but always lower
by two degrees at least than that prescribed by law for the
crime which he has committed. Article 69 of the same Code
provides that in case of "incomplete self-defense", i.e., when
the crime committed is not wholly excusable by reason of the
lack of some of the conditions required to justify the same or to
exempt from criminal liability in the several cases mentioned in
article 11 and 12 of the Code, "the courts shall impose the
penalty in the period which may be deemed proper, in view of
the number and nature of the conditions of exemption present
or lacking." And, in case the commission of what are known as
"impossible" crimes, "the court, having in mind the social
danger and the degree of criminality shown by the offender,"
shall impose upon him either arresto mayor or a fine ranging
from 200 to 500 pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of
preventive imprisonment is deducted form the entire term of
imprisonment, except in certain cases expressly mentioned (art.
29); the death penalty is not imposed when the guilty person is
more than seventy years of age, or where upon appeal or
revision of the case by the Supreme Court, all the members
thereof are not unanimous in their voting as to the propriety of
the imposition of the death penalty (art. 47, see also, sec. 133,
Revised Administrative Code, as amended by Commonwealth
Act No. 3); the death sentence is not to be inflicted upon a
woman within the three years next following the date of the
sentence or while she is pregnant, or upon any person over
seventy years of age (art. 83); and when a convict shall become
insane or an imbecile after final sentence has been pronounced,
or while he is serving his sentenced, the execution of said
sentence shall be suspended with regard to the personal
penalty during the period of such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the
undue harshness of the penal laws is more clearly
demonstrated in various other enactments, including the
probation Act. There is the Indeterminate Sentence Law
enacted in 1933 as Act No. 4103 and subsequently amended by
Act No. 4225, establishing a system of parole (secs. 5 to 100 and
granting the courts large discretion in imposing the penalties of
the law. Section 1 of the law as amended provides; "hereafter,
in imposing a prison sentence for an offenses punished by the
Revised Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate sentence the
maximum term of which shall be that which, in view of the
attending circumstances, could be properly imposed under the
rules of the said Code, and to a minimum which shall be within
the range of the penalty next lower to that prescribed by the
Code for the offense; and if the offense is punished by any other
law, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less
than the minimum term prescribed by the same." Certain
classes of convicts are, by section 2 of the law, excluded from
the operation thereof. The Legislature has also enacted the
Juvenile Delinquency Law (Act No. 3203) which was
subsequently amended by Act No. 3559. Section 7 of the
original Act and section 1 of the amendatory Act have become
article 80 of the Revised Penal Code, amended by Act No. 4117
of the Philippine Legislature and recently reamended by
Commonwealth Act No. 99 of the National Assembly. In this Act
is again manifested the intention of the legislature to
"humanize" the penal laws. It allows, in effect, the modification
in particular cases of the penalties prescribed by law by
permitting the suspension of the execution of the judgment in
the discretion of the trial court, after due hearing and after
investigation of the particular circumstances of the offenses, the
criminal record, if any, of the convict, and his social history. The
Legislature has in reality decreed that in certain cases no
punishment at all shall be suffered by the convict as long as the
conditions of probation are faithfully observed. It this be so,
then, it cannot be said that the Probation Act comes in conflict
with the power of the Chief Executive to grant pardons and
reprieves, because, to use the language of the Supreme Court of
New Mexico, "the element of punishment or the penalty for the
commission of a wrong, while to be declared by the courts as a
judicial function under and within the limits of law as
announced by legislative acts, concerns solely the procedure
and conduct of criminal causes, with which the executive can
have nothing to do." (Ex parte Bates, supra.) In Williams vs.
State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the
constitutionality of the Georgia probation statute against the
contention that it attempted to delegate to the courts the
pardoning power lodged by the constitution in the governor
alone is vested with the power to pardon after final sentence
has been imposed by the courts, the power of the courts to
imposed any penalty which may be from time to time
prescribed by law and in such manner as may be defined cannot
be questioned."
We realize, of course, the conflict which the American cases
disclose. Some cases hold it unlawful for the legislature to vest
in the courts the power to suspend the operation of a
sentenced, by probation or otherwise, as to do so would
encroach upon the pardoning power of the executive. (In re
Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846;
62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel. Summerfield
vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex
parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227;
19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650;
People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82;
95 Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim.
Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162; Ex
parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State
[1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S.
E. 858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630;
181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571;
States vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C. C.
A., 9th], 7 F. [2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d],
567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5;
Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L.
R., 1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re
Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De
Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick
[1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69
Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50;
91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133
S. E., 843; People vs. Heise [1913], 257 Ill., 443; 100 N. E., 1000;
Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A.,
859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882;
People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State
vs. Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs.
District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs.
Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N. S.],
848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl.,
875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex
parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151
Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894],
141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep.,
675; People ex rel. Sullivan vs. Flynn [1907], 55 Misc., 639; 106
N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp.,
406; Moore vs. Thorn [1935], 245 App. Div., 180; 281 N. Y.
Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169;
149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275;
233 P., 781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69;
State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S.
E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn.,
232; Woods vs. State [1814], 130 Tenn., 100; 169 S. W., 558;
Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs.
State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs.
State [1914], 73 Tex. Crim. Rep., 548; 165 S. W., 573; King vs.
State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs.
State [1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs.
State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re
Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921],
131 Va., 802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash.,
287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich [1922],
119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to
follow this long catena of authorities holding that the courts
may be legally authorized by the legislature to suspend
sentence by the establishment of a system of probation
however characterized. State ex rel. Tingstand vs. Starwich
([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved
particular mention. In that case, a statute enacted in 1921
which provided for the suspension of the execution of a
sentence until otherwise ordered by the court, and required
that the convicted person be placed under the charge of a
parole or peace officer during the term of such suspension, on
such terms as the court may determine, was held constitutional
and as not giving the court a power in violation of the
constitutional provision vesting the pardoning power in the
chief executive of the state. (Vide, also, Re Giannini [1912], 18
Cal App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the
same. They are actually district and different from each other,
both in origin and in nature. In People ex rel. Forsyth vs. Court
of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L.
R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New
York said:
. . . The power to suspend sentence and the power to
grant reprieves and pardons, as understood when the
constitution was adopted, are totally distinct and
different in their nature. The former was always a part
of the judicial power; the latter was always a part of the
executive power. The suspension of the sentence simply
postpones the judgment of the court temporarily or
indefinitely, but the conviction and liability following it,
and the civil disabilities, remain and become operative
when judgment is rendered. A pardon reaches both the
punishment prescribed for the offense and the guilt of
the offender. It releases the punishment, and blots out
of existence the guilt, so that in the eye of the law, the
offender is as innocent as if he had never committed
the offense. It removes the penalties and disabilities,
and restores him to all his civil rights. It makes him, as it
were, a new man, and gives him a new credit and
capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18
Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20
Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed.,
442.)
The framers of the federal and the state constitutions
were perfectly familiar with the principles governing the
power to grant pardons, and it was conferred by these
instruments upon the executive with full knowledge of
the law upon the subject, and the words of the
constitution were used to express the authority
formerly exercised by the English crown, or by its
representatives in the colonies. (Ex parte Wells, 59 U. S.,
18 How., 307; 15 Law. ed., 421.) As this power was
understood, it did not comprehend any part of the
judicial functions to suspend sentence, and it was never
intended that the authority to grant reprieves and
pardons should abrogate, or in any degree restrict, the
exercise of that power in regard to its own judgments,
that criminal courts has so long maintained. The two
powers, so distinct and different in their nature and
character, were still left separate and distinct, the one
to be exercised by the executive, and the other by the
judicial department. We therefore conclude that a
statute which, in terms, authorizes courts of criminal
jurisdiction to suspend sentence in certain cases after
conviction, — a power inherent in such courts at
common law, which was understood when the
constitution was adopted to be an ordinary judicial
function, and which, ever since its adoption, has been
exercised of legislative power under the constitution. It
does not encroach, in any just sense, upon the powers
of the executive, as they have been understood and
practiced from the earliest times. (Quoted with
approval in Directors of Prisons vs. Judge of First
Instance of Cavite [1915], 29 Phil., 265, Carson, J.,
concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as in pardon, a
free man. He is not finally and completely exonerated. He is not
exempt from the entire punishment which the law inflicts.
Under the Probation Act, the probationer's case is not
terminated by the mere fact that he is placed on probation.
Section 4 of the Act provides that the probation may be
definitely terminated and the probationer finally discharged
from supervision only after the period of probation shall have
been terminated and the probation officer shall have submitted
a report, and the court shall have found that the probationer
has complied with the conditions of probation. The probationer,
then, during the period of probation, remains in legal custody —
subject to the control of the probation officer and of the court;
and, he may be rearrested upon the non-fulfillment of the
conditions of probation and, when rearrested, may be
committed to prison to serve the sentence originally imposed
upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)
 The probation described in the act is not pardon. It is
not complete liberty, and may be far from it. It is really
a new mode of punishment, to be applied by the judge
in a proper case, in substitution of the imprisonment
and find prescribed by the criminal laws. For this reason
its application is as purely a judicial act as any other
sentence carrying out the law deemed applicable to the
offense. The executive act of pardon, on the contrary, is
against the criminal law, which binds and directs the
judges, or rather is outside of and above it. There is thus
no conflict with the pardoning power, and no possible
unconstitutionality of the Probation Act for this cause.
(Archer vs. Snook [1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and from
commutation of the sentence. Snodgrass vs. State ([1912], 67
Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is
relied upon most strongly by the petitioners as authority in
support of their contention that the power to grant pardons and
reprieves, having been vested exclusively upon the Chief
Executive by the Jones Law, may not be conferred by the
legislature upon the courts by means of probation law
authorizing the indefinite judicial suspension of sentence. We
have examined that case and found that although the Court of
Criminal Appeals of Texas held that the probation statute of the
state in terms conferred on the district courts the power to
grant pardons to persons convicted of crime, it also
distinguished between suspensions sentence on the one hand,
and reprieve and commutation of sentence on the other. Said
the court, through Harper, J.:
That the power to suspend the sentence does not
conflict with the power of the Governor to grant
reprieves is settled by the decisions of the various
courts; it being held that the distinction between a
"reprieve" and a suspension of sentence is that a
reprieve postpones the execution of the sentence to a
day certain, whereas a suspension is for an indefinite
time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re
Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited
in 7 Words & Phrases, pp. 6115, 6116. This law cannot
be hold in conflict with the power confiding in the
Governor to grant commutations of punishment, for a
commutations is not but to change the punishment
assessed to a less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont.,
541; 237 Pac., 525), the Supreme Court of Montana had under
consideration the validity of the adult probation law of the state
enacted in 1913, now found in sections 12078-12086, Revised
Codes of 1921. The court held the law valid as not impinging
upon the pardoning power of the executive. In a unanimous
decision penned by Justice Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite"
each had a well understood meaning at the time our
Constitution was adopted, and no one of them was
intended to comprehend the suspension of the
execution of the judgment as that phrase is employed in
sections 12078-12086. A "pardon" is an act of grace,
proceeding from the power intrusted with the
execution of the laws which exempts the individual on
whom it is bestowed from the punishment the law
inflicts for a crime he has committed (United States vs.
Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a remission of
guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a
forgiveness of the offense (Cook vs. Middlesex County,
26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am.
Rep., 71). "Commutation" is a remission of a part of the
punishment; a substitution of a less penalty for the one
originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789;
12 Am. Rep., 563; Rich vs. Chamberlain, 107 Mich., 381;
65 N. W., 235). A "reprieve" or "respite" is the
withholding of the sentence for an interval of time (4
Blackstone's Commentaries, 394), a postponement of
execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.],
272), a temporary suspension of execution (Butler vs.
State, 97 Ind., 373).
Few adjudicated cases are to be found in which the
validity of a statute similar to our section 12078 has
been determined; but the same objections have been
urged against parole statutes which vest the power to
parole in persons other than those to whom the power
of pardon is granted, and these statutes have been
upheld quite uniformly, as a reference to the numerous
cases cited in the notes to Woods vs. State (130 Tenn.,
100; 169 S. W.,558, reported in L. R. A., 1915F, 531), will
disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the
pardoning power of the Executive. The pardoning power, in
respect to those serving their probationary sentences, remains
as full and complete as if the Probation Law had never been
enacted. The President may yet pardon the probationer and
thus place it beyond the power of the court to order his rearrest
and imprisonment. (Riggs vs. United States [1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the
pardoning power of the executive and is not for that reason
void, does section 11 thereof constitute, as contended, an undue
delegation of legislative power?
Under the constitutional system, the powers of government are
distributed among three coordinate and substantially
independent organs: the legislative, the executive and the
judicial. Each of these departments of the government derives
its authority from the Constitution which, in turn, is the highest
expression of popular will. Each has exclusive cognizance of the
matters within its jurisdiction, and is supreme within its own
sphere.
The power to make laws — the legislative power — is vested in
a bicameral Legislature by the Jones Law (sec. 12) and in a
unicamiral National Assembly by the Constitution (Act. VI, sec.
1, Constitution of the Philippines). The Philippine Legislature or
the National Assembly may not escape its duties and
responsibilities by delegating that power to any other body or
authority. Any attempt to abdicate the power is
unconstitutional and void, on the principle that potestas
delegata non delegare potest. This principle is said to have
originated with the glossators, was introduced into English law
through a misreading of Bracton, there developed as a principle
of agency, was established by Lord Coke in the English public
law in decisions forbidding the delegation of judicial power, and
found its way into America as an enlightened principle of free
government. It has since become an accepted corollary of the
principle of separation of powers. (5 Encyc. of the Social
Sciences, p. 66.) The classic statement of the rule is that of
Locke, namely: "The legislative neither must nor can transfer
the power of making laws to anybody else, or place it anywhere
but where the people have." (Locke on Civil Government, sec.
142.) Judge Cooley enunciates the doctrine in the following oft-
quoted language: "One of the settled maxims in constitutional
law is, that the power conferred upon the legislature to make
laws cannot be delegated by that department to any other body
or authority. Where the sovereign power of the state has
located the authority, there it must remain; and by the
constitutional agency alone the laws must be made until the
Constitution itself is charged. The power to whose judgment,
wisdom, and patriotism this high prerogative has been intrusted
cannot relieve itself of the responsibilities by choosing other
agencies upon which the power shall be devolved, nor can it
substitute the judgment, wisdom, and patriotism of any other
body for those to which alone the people have seen fit to
confide this sovereign trust." (Cooley on Constitutional
Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S.
vs. Barrias [1908], 11 Phil., 327.) This court posits the doctrine
"on the ethical principle that such a delegated power
constitutes not only a right but a duty to be performed by the
delegate by the instrumentality of his own judgment acting
immediately upon the matter of legislation and not through the
intervening mind of another. (U. S. vs. Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of legislative
power is not absolute and inflexible. It admits of exceptions. An
exceptions sanctioned by immemorial practice permits the
central legislative body to delegate legislative powers to local
authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39
Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh
vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct.
Rep., 256; State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal
principle of our system of government, that local affairs shall be
managed by local authorities, and general affairs by the central
authorities; and hence while the rule is also fundamental that
the power to make laws cannot be delegated, the creation of
the municipalities exercising local self government has never
been held to trench upon that rule. Such legislation is not
regarded as a transfer of general legislative power, but rather as
the grant of the authority to prescribed local regulations,
according to immemorial practice, subject of course to the
interposition of the superior in cases of necessity."
(Stoutenburgh vs. Hennick, supra.) On quite the same principle,
Congress is powered to delegate legislative power to such
agencies in the territories of the United States as it may select.
A territory stands in the same relation to Congress as a
municipality or city to the state government. (United States vs.
Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed.,
1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S.,
138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.)
Courts have also sustained the delegation of legislative power
to the people at large. Some authorities maintain that this may
not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing
People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann.
Cas., 1914C, 616). However, the question of whether or not a
state has ceased to be republican in form because of its
adoption of the initiative and referendum has been held not to
be a judicial but a political question (Pacific States Tel. & Tel. Co.
vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet.
Rep., 224), and as the constitutionality of such laws has been
looked upon with favor by certain progressive courts, the sting
of the decisions of the more conservative courts has been
pretty well drawn. (Opinions of the Justices [1894], 160 Mass.,
586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910],
57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.],
332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless,
also, legislative power may be delegated by the Constitution
itself. Section 14, paragraph 2, of article VI of the Constitution of
the Philippines provides that "The National Assembly may by
law authorize the President, subject to such limitations and
restrictions as it may impose, to fix within specified limits, tariff
rates, import or export quotas, and tonnage and wharfage
dues." And section 16 of the same article of the Constitution
provides that "In times of war or other national emergency, the
National Assembly may by law authorize the President, for a
limited period and subject to such restrictions as it may
prescribed, to promulgate rules and regulations to carry out a
declared national policy." It is beyond the scope of this decision
to determine whether or not, in the absence of the foregoing
constitutional provisions, the President could be authorized to
exercise the powers thereby vested in him. Upon the other
hand, whatever doubt may have existed has been removed by
the Constitution itself.
The case before us does not fall under any of the exceptions
hereinabove mentioned.
The challenged section of Act No. 4221 in section 11 which
reads as follows:
This Act shall apply only in those provinces in which the
respective provincial boards have provided for the salary
of a probation officer at rates not lower than those now
provided for provincial fiscals. Said probation officer
shall be appointed by the Secretary of Justice and shall
be subject to the direction of the Probation Office.
(Emphasis ours.)
In testing whether a statute constitute an undue delegation of
legislative power or not, it is usual to inquire whether the
statute was complete in all its terms and provisions when it left
the hands of the legislature so that nothing was left to the
judgment of any other appointee or delegate of the legislature.
(6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922],
43 Phil., 1), this court adhered to the foregoing rule when it held
an act of the legislature void in so far as it undertook to
authorize the Governor-General, in his discretion, to issue a
proclamation fixing the price of rice and to make the sale of it in
violation of the proclamation a crime. (See and cf. Compañia
General de Tabacos vs. Board of Public Utility Commissioners
[1916], 34 Phil., 136.) The general rule, however, is limited by
another rule that to a certain extent matters of detail may be
left to be filled in by rules and regulations to be adopted or
promulgated by executive officers and administrative boards. (6
R. C. L., pp. 177-179.)
For the purpose of Probation Act, the provincial boards may be
regarded as administrative bodies endowed with power to
determine when the Act should take effect in their respective
provinces. They are the agents or delegates of the legislature in
this respect. The rules governing delegation of legislative power
to administrative and executive officers are applicable or are at
least indicative of the rule which should be here adopted. An
examination of a variety of cases on delegation of power to
administrative bodies will show that the ratio decidendi is at
variance but, it can be broadly asserted that the rationale
revolves around the presence or absence of a standard or rule
of action — or the sufficiency thereof — in the statute, to aid
the delegate in exercising the granted discretion. In some cases,
it is held that the standard is sufficient; in others that is
insufficient; and in still others that it is entirely lacking. As a rule,
an act of the legislature is incomplete and hence invalid if it
does not lay down any rule or definite standard by which the
administrative officer or board may be guided in the exercise of
the discretionary powers delegated to it. (See Schecter vs.
United States [1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct.
Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co.
[1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases
cited. See also R. C. L., title "Constitutional Law", sec 174.) In the
case at bar, what rules are to guide the provincial boards in the
exercise of their discretionary power to determine whether or
not the Probation Act shall apply in their respective provinces?
What standards are fixed by the Act? We do not find any and
none has been pointed to us by the respondents. The probation
Act does not, by the force of any of its provisions, fix and
impose upon the provincial boards any standard or guide in the
exercise of their discretionary power. What is granted, if we
may use the language of Justice Cardozo in the recent case of
Schecter, supra, is a "roving commission" which enables the
provincial boards to exercise arbitrary discretion. By section 11
if the Act, the legislature does not seemingly on its own
authority extend the benefits of the Probation Act to the
provinces but in reality leaves the entire matter for the various
provincial boards to determine. In other words, the provincial
boards of the various provinces are to determine for
themselves, whether the Probation Law shall apply to their
provinces or not at all. The applicability and application of the
Probation Act are entirely placed in the hands of the provincial
boards. If the provincial board does not wish to have the Act
applied in its province, all that it has to do is to decline to
appropriate the needed amount for the salary of a probation
officer. The plain language of the Act is not susceptible of any
other interpretation. This, to our minds, is a virtual surrender of
legislative power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the
delegation of power to make the law, which necessarily involves
a discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in
pursuance of the law. The first cannot be done; to the latter no
valid objection can be made." (Cincinnati, W. & Z. R. Co. vs.
Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also,
Sutherland on Statutory Construction, sec 68.) To the same
effect are the decision of this court in Municipality of Cardona
vs. Municipality of Binangonan ([1917], 36 Phil., 547); Rubi vs.
Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz vs.
Youngberg ([1931], 56 Phil., 234). In the first of these cases, this
court sustained the validity of the law conferring upon the
Governor-General authority to adjust provincial and municipal
boundaries. In the second case, this court held it lawful for the
legislature to direct non-Christian inhabitants to take up their
habitation on unoccupied lands to be selected by the provincial
governor and approved by the provincial board. In the third
case, it was held proper for the legislature to vest in the
Governor-General authority to suspend or not, at his discretion,
the prohibition of the importation of the foreign cattle, such
prohibition to be raised "if the conditions of the country make
this advisable or if deceased among foreign cattle has ceased to
be a menace to the agriculture and livestock of the lands."
It should be observed that in the case at bar we are not
concerned with the simple transference of details of execution
or the promulgation by executive or administrative officials of
rules and regulations to carry into effect the provisions of a law.
If we were, recurrence to our own decisions would be sufficient.
(U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29
Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394;
Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs.
Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of
Mindoro [1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be made to
the effect as law after it leaves the hands of the legislature. It is
true that laws may be made effective on certain contingencies,
as by proclamation of the executive or the adoption by the
people of a particular community (6 R. C. L., 116, 170-172;
Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In
Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253),
the Supreme Court of the United State ruled that the legislature
may delegate a power not legislative which it may itself
rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins. Co.
[1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power
to ascertain facts is such a power which may be delegated.
There is nothing essentially legislative in ascertaining the
existence of facts or conditions as the basis of the taking into
effect of a law. That is a mental process common to all branches
of the government. (Dowling vs. Lancashire Ins. Co., supra; In
re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W.,
1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108
N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495;
36 Law. ed., 294.) Notwithstanding the apparent tendency,
however, to relax the rule prohibiting delegation of legislative
authority on account of the complexity arising from social and
economic forces at work in this modern industrial age (Pfiffner,
Public Administration [1936] ch. XX; Laski, "The Mother of
Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-
579; Beard, "Squirt-Gun Politics", in Harper's Monthly Magazine,
July, 1930, Vol. CLXI, pp. 147, 152), the orthodox
pronouncement of Judge Cooley in his work on Constitutional
Limitations finds restatement in Prof. Willoughby's treatise on
the Constitution of the United States in the following language
— speaking of declaration of legislative power to administrative
agencies: "The principle which permits the legislature to provide
that the administrative agent may determine when the
circumstances are such as require the application of a law is
defended upon the ground that at the time this authority is
granted, the rule of public policy, which is the essence of the
legislative act, is determined by the legislature. In other words,
the legislature, as it its duty to do, determines that, under given
circumstances, certain executive or administrative action is to
be taken, and that, under other circumstances, different of no
action at all is to be taken. What is thus left to the
administrative official is not the legislative determination of
what public policy demands, but simply the ascertainment of
what the facts of the case require to be done according to the
terms of the law by which he is governed." (Willoughby on the
Constitution of the United States, 2nd ed., Vol. II, p. 1637.) In
Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct.
Rep., 228; 27 Law. ed., 971, 974), it was said: "The efficiency of
an Act as a declaration of legislative will must, of course, come
from Congress, but the ascertainment of the contingency upon
which the Act shall take effect may be left to such agencies as it
may designate." (See, also, 12 C.J., p. 864; State vs. Parker
[1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.)
The legislature, then may provide that a contingencies leaving
to some other person or body the power to determine when
the specified contingencies has arisen. But, in the case at bar,
the legislature has not made the operation of the Prohibition
Act contingent upon specified facts or conditions to be
ascertained by the provincial board. It leaves, as we have
already said, the entire operation or non-operation of the law
upon the provincial board. the discretion vested is arbitrary
because it is absolute and unlimited. A provincial board need
not investigate conditions or find any fact, or await the
happening of any specified contingency. It is bound by no rule,
— limited by no principle of expendiency announced by the
legislature. It may take into consideration certain facts or
conditions; and, again, it may not. It may have any purpose or
no purpose at all. It need not give any reason whatsoever for
refusing or failing to appropriate any funds for the salary of a
probation officer. This is a matter which rest entirely at its
pleasure. The fact that at some future time — we cannot say
when — the provincial boards may appropriate funds for the
salaries of probation officers and thus put the law into
operation in the various provinces will not save the statute. The
time of its taking into effect, we reiterate, would yet be based
solely upon the will of the provincial boards and not upon the
happening of a certain specified contingency, or upon the
ascertainment of certain facts or conditions by a person or body
other than legislature itself.
The various provincial boards are, in practical effect, endowed
with the power of suspending the operation of the Probation
Law in their respective provinces. In some jurisdiction,
constitutions provided that laws may be suspended only by the
legislature or by its authority. Thus, section 28, article I of the
Constitution of Texas provides that "No power of suspending
laws in this state shall be exercised except by the legislature";
and section 26, article I of the Constitution of Indiana provides
"That the operation of the laws shall never be suspended,
except by authority of the General Assembly." Yet, even
provisions of this sort do not confer absolute power of
suspension upon the legislature. While it may be undoubted
that the legislature may suspend a law, or the execution or
operation of a law, a law may not be suspended as to certain
individuals only, leaving the law to be enjoyed by others. The
suspension must be general, and cannot be made for individual
cases or for particular localities. In Holden vs. James ([1814], 11
Mass., 396; 6 Am. Dec., 174, 177, 178), it was said:
By the twentieth article of the declaration of rights in
the constitution of this commonwealth, it is declared
that the power of suspending the laws, or the execution
of the laws, ought never to be exercised but by the
legislature, or by authority derived from it, to be
exercised in such particular cases only as the legislature
shall expressly provide for. Many of the articles in that
declaration of rights were adopted from the Magna
Charta of England, and from the bill of rights passed in
the reign of William and Mary. The bill of rights contains
an enumeration of the oppressive acts of James II,
tending to subvert and extirpate the protestant religion,
and the laws and liberties of the kingdom; and the first
of them is the assuming and exercising a power of
dispensing with and suspending the laws, and the
execution of the laws without consent of parliament.
The first article in the claim or declaration of rights
contained in the statute is, that the exercise of such
power, by legal authority without consent of
parliament, is illegal. In the tenth section of the same
statute it is further declared and enacted, that "No
dispensation by non obstante of or to any statute, or
part thereof, should be allowed; but the same should be
held void and of no effect, except a dispensation be
allowed of in such statute." There is an implied
reservation of authority in the parliament to exercise
the power here mentioned; because, according to the
theory of the English Constitution, "that absolute
despotic power, which must in all governments reside
somewhere," is intrusted to the parliament: 1 Bl. Com.,
160.
The principles of our government are widely different in
this particular. Here the sovereign and absolute power
resides in the people; and the legislature can only
exercise what is delegated to them according to the
constitution. It is obvious that the exercise of the power
in question would be equally oppressive to the subject,
and subversive of his right to protection, "according to
standing laws," whether exercised by one man or by a
number of men. It cannot be supposed that the people
when adopting this general principle from the English
bill of rights and inserting it in our constitution,
intended to bestow by implication on the general court
one of the most odious and oppressive prerogatives of
the ancient kings of England. It is manifestly contrary to
the first principles of civil liberty and natural justice, and
 to the spirit of our constitution and laws, that any one
citizen should enjoy privileges and advantages which
are denied to all others under like circumstances; or
that ant one should be subject to losses, damages, suits,
or actions from which all others under like
circumstances are exempted.
To illustrate the principle: A section of a statute relative to dogs
made the owner of any dog liable to the owner of domestic
animals wounded by it for the damages without proving a
knowledge of it vicious disposition. By a provision of the act,
power was given to the board of supervisors to determine
whether or not during the current year their county should be
governed by the provisions of the act of which that section
constituted a part. It was held that the legislature could not
confer that power. The court observed that it could no more
confer such a power than to authorize the board of supervisors
of a county to abolish in such county the days of grace on
commercial paper, or to suspend the statute of limitations.
(Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in
Missouri was held void for the same reason in State vs. Field
([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general
statute formulating a road system contained a provision that "if
the county court of any county should be of opinion that the
provisions of the act should not be enforced, they might, in
their discretion, suspend the operation of the same for any
specified length of time, and thereupon the act should become
inoperative in such county for the period specified in such
order; and thereupon order the roads to be opened and kept in
good repair, under the laws theretofore in force." Said the
court: ". . . this act, by its own provisions, repeals the
inconsistent provisions of a former act, and yet it is left to the
county court to say which act shall be enforce in their county.
The act does not submit the question to the county court as an
original question, to be decided by that tribunal, whether the
act shall commence its operation within the county; but it
became by its own terms a law in every county not excepted by
name in the act. It did not, then, require the county court to do
any act in order to give it effect. But being the law in the county,
and having by its provisions superseded and abrogated the
inconsistent provisions of previous laws, the county court is . . .
empowered, to suspend this act and revive the repealed
provisions of the former act. When the question is before the
county court for that tribunal to determine which law shall be in
force, it is urge before us that the power then to be exercised by
the court is strictly legislative power, which under our
constitution, cannot be delegated to that tribunal or to any
other body of men in the state. In the present case, the
question is not presented in the abstract; for the county court
of Saline county, after the act had been for several months in
force in that county, did by order suspend its operation; and
during that suspension the offense was committed which is the
subject of the present indictment . . . ." (See Mitchell vs. State
[1901], 134 Ala., 392; 32 S., 687.)
True, the legislature may enact laws for a particular locality
different from those applicable to other localities and, while
recognizing the force of the principle hereinabove expressed,
courts in may jurisdiction have sustained the constitutionality of
the submission of option laws to the vote of the people. (6
R.C.L., p. 171.) But option laws thus sustained treat of subjects
purely local in character which should receive different
treatment in different localities placed under different
circumstances. "They relate to subjects which, like the retailing
of intoxicating drinks, or the running at large of cattle in the
highways, may be differently regarded in different localities,
and they are sustained on what seems to us the impregnable
ground, that the subject, though not embraced within the
ordinary powers of municipalities to make by-laws and
ordinances, is nevertheless within the class of public
regulations, in respect to which it is proper that the local
judgment should control." (Cooley on Constitutional Limitations,
5th ed., p. 148.) So that, while we do not deny the right of local
self-government and the propriety of leaving matters of purely
local concern in the hands of local authorities or for the people
of small communities to pass upon, we believe that in matters
of general of general legislation like that which treats of
criminals in general, and as regards the general subject of
probation, discretion may not be vested in a manner so
unqualified and absolute as provided in Act No. 4221. True, the
statute does not expressly state that the provincial boards may
suspend the operation of the Probation Act in particular
provinces but, considering that, in being vested with the
authority to appropriate or not the necessary funds for the
salaries of probation officers, they thereby are given absolute
discretion to determine whether or not the law should take
effect or operate in their respective provinces, the provincial
boards are in reality empowered by the legislature to suspend
the operation of the Probation Act in particular provinces, the
Act to be held in abeyance until the provincial boards should
decide otherwise by appropriating the necessary funds. The
validity of a law is not tested by what has been done but by
what may be done under its provisions. (Walter E. Olsen & Co.
vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted to
the legislature not only in the expression of what may be
termed legislative policy but in the elaboration and execution
thereof. "Without this power, legislation would become
oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.)
It has been said that popular government lives because of the
inexhaustible reservoir of power behind it. It is unquestionable
that the mass of powers of government is vested in the
representatives of the people and that these representatives
are no further restrained under our system than by the express
language of the instrument imposing the restraint, or by
particular provisions which by clear intendment, have that
effect. (Angara vs. Electoral Commission [1936], 35 Off. Ga., 23;
Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it
should be borne in mind that a constitution is both a grant and
a limitation of power and one of these time-honored limitations
is that, subject to certain exceptions, legislative power shall not
be delegated.
We conclude that section 11 of Act No. 4221 constitutes an
improper and unlawful delegation of legislative authority to the
provincial boards and is, for this reason, unconstitutional and
void.
3. It is also contended that the Probation Act violates the
provisions of our Bill of Rights which prohibits the denial to any
person of the equal protection of the laws (Act. III, sec. 1 subsec.
1. Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a
restraint on all the tree grand departments of our government
and on the subordinate instrumentalities and subdivision
thereof, and on many constitutional power, like the police
power, taxation and eminent domain. The equal protection of
laws, sententiously observes the Supreme Court of the United
States, "is a pledge of the protection of equal laws." (Yick Wo vs.
Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep.,
10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct.
Rep., 357; 63 Law. ed., 735.) Of course, what may be regarded
as a denial of the equal protection of the laws in a question not
always easily determined. No rule that will cover every case can
be formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184,
U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class
legislation discriminating against some and favoring others in
prohibited. But classification on a reasonable basis, and nor
made arbitrarily or capriciously, is permitted. (Finely vs.
California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep.,
13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law.
ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad
[1919], 40 Phil., 136.) The classification, however, to be
reasonable must be based on substantial distinctions which
make real differences; it must be germane to the purposes of
the law; it must not be limited to existing conditions only, and
must apply equally to each member of the class. (Borgnis vs.
Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C.
A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540;
530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas
Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct.
Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs.
Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed.,
374; Southern Ry. Co. vs. Greene [1910], 216 U. S., 400; 30 Sup.
Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs.
Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be said
to flow from the unwarranted delegation of legislative power,
although perhaps this is not necessarily the result in every case.
Adopting the example given by one of the counsel for the
petitioners in the course of his oral argument, one province may
appropriate the necessary fund to defray the salary of a
probation officer, while another province may refuse or fail to
do so. In such a case, the Probation Act would be in operation in
the former province but not in the latter. This means that a
person otherwise coming within the purview of the law would
be liable to enjoy the benefits of probation in one province
while another person similarly situated in another province
would be denied those same benefits. This is obnoxious
discrimination. Contrariwise, it is also possible for all the
provincial boards to appropriate the necessary funds for the
salaries of the probation officers in their respective provinces, in
which case no inequality would result for the obvious reason
that probation would be in operation in each and every
province by the affirmative action of appropriation by all the
provincial boards. On that hypothesis, every person coming
within the purview of the Probation Act would be entitled to
avail of the benefits of the Act. Neither will there be any
resulting inequality if no province, through its provincial board,
should appropriate any amount for the salary of the probation
officer — which is the situation now — and, also, if we accept
the contention that, for the purpose of the Probation Act, the
City of Manila should be considered as a province and that the
municipal board of said city has not made any appropriation for
the salary of the probation officer. These different situations
suggested show, indeed, that while inequality may result in the
application of the law and in the conferment of the benefits
therein provided, inequality is not in all cases the necessary
result. But whatever may be the case, it is clear that in section
11 of the Probation Act creates a situation in which
discrimination and inequality are permitted or allowed. There
are, to be sure, abundant authorities requiring actual denial of
the equal protection of the law before court should assume the
task of setting aside a law vulnerable on that score, but
premises and circumstances considered, we are of the opinion
that section 11 of Act No. 4221 permits of the denial of the
equal protection of the law and is on that account bad. We see
no difference between a law which permits of such denial. A law
may appear to be fair on its face and impartial in appearance,
yet, if it permits of unjust and illegal discrimination, it is within
the constitutional prohibitions. (By analogy, Chy Lung vs.
Freeman [1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs.
Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia
[1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware
[1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley
[1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins
[1886],118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi
[1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012;
Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145;
55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U.
S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other
words, statutes may be adjudged unconstitutional because of
their effect in operation (General Oil Co. vs. Clain [1907], 209 U.
S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs.
Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas.,
1912D, 22). If the law has the effect of denying the equal
protection of the law it is unconstitutional. (6 R. C. L. p. 372;
Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed.,
835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94 Me.,
192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585;
54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section
11 of the Probation Act, not only may said Act be in force in one
or several provinces and not be in force in other provinces, but
one province may appropriate for the salary of the probation
officer of a given year — and have probation during that year —
and thereafter decline to make further appropriation, and have
no probation is subsequent years. While this situation goes
rather to the abuse of discretion which delegation implies, it is
here indicated to show that the Probation Act sanctions a
situation which is intolerable in a government of laws, and to
prove how easy it is, under the Act, to make the guaranty of the
equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F.
Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666; 17
Sup. Ct. Rep., 255.)lawph!1.net
Great reliance is placed by counsel for the respondents on the
case of Ocampo vs. United States ([1914], 234 U. S., 91; 58 Law.
ed., 1231). In that case, the Supreme Court of the United States
affirmed the decision of this court (18 Phil., 1) by declining to
uphold the contention that there was a denial of the equal
protection of the laws because, as held in Missouri vs. Lewis
(Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed.,
991), the guaranty of the equality clause does not require
territorial uniformity. It should be observed, however, that this
case concerns the right to preliminary investigations in criminal
cases originally granted by General Orders No. 58. No question
of legislative authority was involved and the alleged denial of
the equal protection of the laws was the result of the
subsequent enactment of Act No. 612, amending the charter of
the City of Manila (Act No. 813) and providing in section 2
thereof that "in cases triable only in the court of first instance of
the City of Manila, the defendant . . . shall not be entitled as of
right to a preliminary examination in any case where the
prosecuting attorney, after a due investigation of the facts . . .
shall have presented an information against him in proper form
. . . ." Upon the other hand, an analysis of the arguments and
the decision indicates that the investigation by the prosecuting
attorney — although not in the form had in the provinces —
was considered a reasonable substitute for the City of Manila,
considering the peculiar conditions of the city as found and
taken into account by the legislature itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra.
That case has reference to a situation where the constitution of
Missouri permits appeals to the Supreme Court of the state
from final judgments of any circuit court, except those in certain
counties for which counties the constitution establishes a
separate court of appeals called St. Louis Court of Appeals. The
provision complained of, then, is found in the constitution itself
and it is the constitution that makes the apportionment of
territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is
unconstitutional and void because it is also repugnant to equal-
protection clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and void
for the reasons already stated, the next inquiry is whether or
not the entire Act should be avoided.
In seeking the legislative intent, the presumption is
against any mutilation of a statute, and the courts will
resort to elimination only where an unconstitutional
provision is interjected into a statute otherwise valid,
and is so independent and separable that its removal
will leave the constitutional features and purposes of
the act substantially unaffected by the process. (Riccio
vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55
Atl., 1109, quoted in Williams vs. Standard Oil Co.
[1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49
Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs.
Moir ([1913], 25 Phil., 44, 47), this court stated the well-
established rule concerning partial invalidity of statutes
in the following language:
. . . where part of the a statute is void, as repugnant to
the Organic Law, while another part is valid, the valid
portion, if separable from the valid, may stand and be
enforced. But in order to do this, the valid portion must
be in so far independent of the invalid portion that it is
fair to presume that the Legislative would have enacted
it by itself if they had supposed that they could not
constitutionally enact the other. (Mutual Loan Co. vs.
Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446;
Supervisors of Holmes Co. vs. Black Creek Drainage
District, 99 Miss., 739; 55 Sou., 963.) Enough must
remain to make a complete, intelligible, and valid
statute, which carries out the legislative intent.
(Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void
provisions must be eliminated without causing results
affecting the main purpose of the Act, in a manner
contrary to the intention of the Legislature. (State vs. A.
C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs.
Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S.,
794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540,
565; People vs. Strassheim, 240 Ill., 279, 300; 88 N. E.,
821; 22 L. R. A., N. S., 1135; State vs. Cognevich, 124 La.,
414; 50 Sou., 439.) The language used in the invalid part
of a statute can have no legal force or efficacy for any
purpose whatever, and what remains must express the
legislative will, independently of the void part, since the
court has no power to legislate. (State vs. Junkin, 85
Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide,
also,. U. S., vs. Rodriguez [1918], 38 Phil., 759; Pollock
vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601,
635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6
R.C.L., 121.)
It is contended that even if section 11, which makes the
Probation Act applicable only in those provinces in which the
respective provincial boards provided for the salaries of
probation officers were inoperative on constitutional grounds,
the remainder of the Act would still be valid and may be
enforced. We should be inclined to accept the suggestions but
for the fact that said section is, in our opinion, is inseparably
linked with the other portions of the Act that with the
elimination of the section what would be left is the bare
idealism of the system, devoid of any practical benefit to a large
number of people who may be deserving of the intended
beneficial result of that system. The clear policy of the law, as
may be gleaned from a careful examination of the whole
context, is to make the application of the system dependent
entirely upon the affirmative action of the different provincial
boards through appropriation of the salaries for probation
officers at rates not lower than those provided for provincial
fiscals. Without such action on the part of the various boards,
no probation officers would be appointed by the Secretary of
Justice to act in the provinces. The Philippines is divided or
subdivided into provinces and it needs no argument to show
that if not one of the provinces — and this is the actual situation
now — appropriate the necessary fund for the salary of a
probation officer, probation under Act No. 4221 would be
illusory. There can be no probation without a probation officer.
Neither can there be a probation officer without the probation
system.
Section 2 of the Acts provides that the probation officer shall
supervise and visit the probationer. Every probation officer is
given, as to the person placed in probation under his care, the
powers of the police officer. It is the duty of the probation
officer to see that the conditions which are imposed by the
court upon the probationer under his care are complied with.
Among those conditions, the following are enumerated in
section 3 of the Act:
That the probationer (a) shall indulge in no injurious or
vicious habits;
(b) Shall avoid places or persons of disreputable or
harmful character;
(c) Shall report to the probation officer as directed by
the court or probation officers;
(d) Shall permit the probation officer to visit him at
reasonable times at his place of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on
the part of the probation officer concerning his conduct
or condition; "(f) Shall endeavor to be employed
regularly; "(g) Shall remain or reside within a specified
place or locality;
(f) Shall make reparation or restitution to the aggrieved
parties for actual damages or losses caused by his
offense;
(g) Shall comply with such orders as the court may from
time to time make; and
(h) Shall refrain from violating any law, statute,
ordinance, or any by-law or regulation, promulgated in
accordance with law.
The court is required to notify the probation officer in writing of
the period and terms of probation. Under section 4, it is only
after the period of probation, the submission of a report of the
probation officer and appropriate finding of the court that the
probationer has complied with the conditions of probation that
probation may be definitely terminated and the probationer
finally discharged from supervision. Under section 5, if the court
finds that there is non-compliance with said conditions, as
reported by the probation officer, it may issue a warrant for the
arrest of the probationer and said probationer may be
committed with or without bail. Upon arraignment and after an
opportunity to be heard, the court may revoke, continue or
modify the probation, and if revoked, the court shall order the
execution of the sentence originally imposed. Section 6
prescribes the duties of probation officers: "It shall be the duty
of every probation officer to furnish to all persons placed on
probation under his supervision a statement of the period and
conditions of their probation, and to instruct them concerning
the same; to keep informed concerning their conduct and
condition; to aid and encourage them by friendly advice and
admonition, and by such other measures, not inconsistent with
the conditions imposed by court as may seem most suitable, to
bring about improvement in their conduct and condition; to
report in writing to the court having jurisdiction over said
probationers at least once every two months concerning their
conduct and condition; to keep records of their work; make
such report as are necessary for the information of the
Secretary of Justice and as the latter may require; and to
perform such other duties as are consistent with the functions
of the probation officer and as the court or judge may direct.
The probation officers provided for in this Act may act as parole
officers for any penal or reformatory institution for adults when
so requested by the authorities thereof, and, when designated
by the Secretary of Justice shall act as parole officer of persons
released on parole under Act Number Forty-one Hundred and
Three, without additional compensation."
It is argued, however, that even without section 11 probation
officers maybe appointed in the provinces under section 10 of
Act which provides as follows:
There is hereby created in the Department of Justice
and subject to its supervision and control, a Probation
Office under the direction of a Chief Probation Officer
to be appointed by the Governor-General with the
advise and consent of the Senate who shall receive a
salary of four eight hundred pesos per annum. To carry
out this Act there is hereby appropriated out of any
funds in the Insular Treasury not otherwise
appropriated, the sum of fifty thousand pesos to be
disbursed by the Secretary of Justice, who is hereby
authorized to appoint probation officers and the
administrative personnel of the probation officer under
civil service regulations from among those who possess
the qualifications, training and experience prescribed by
the Bureau of Civil Service, and shall fix the
compensation of such probation officers and
administrative personnel until such positions shall have
been included in the Appropriation Act.
But the probation officers and the administrative personnel
referred to in the foregoing section are clearly not those
probation officers required to be appointed for the provinces
under section 11. It may be said, reddendo singula singulis, that
the probation officers referred to in section 10 above-quoted
are to act as such, not in the various provinces, but in the
central office known as the Probation Office established in the
Department of Justice, under the supervision of the Chief
Probation Officer. When the law provides that "the probation
officer" shall investigate and make reports to the court (secs. 1
and 4); that "the probation officer" shall supervise and visit the
probationer (sec. 2; sec. 6, par. d); that the probationer shall
report to the "probationer officer" (sec. 3, par. c.), shall allow
"the probationer officer" to visit him (sec. 3, par. d), shall
truthfully answer any reasonable inquiries on the part of "the
probation officer" concerning his conduct or condition (sec. 3,
par. 4); that the court shall notify "the probation officer" in
writing of the period and terms of probation (sec. 3, last par.), it
means the probation officer who is in charge of a particular
probationer in a particular province. It never could have been
intention of the legislature, for instance, to require the
probationer in Batanes, to report to a probationer officer in the
City of Manila, or to require a probation officer in Manila to visit
the probationer in the said province of Batanes, to place him
under his care, to supervise his conduct, to instruct him
concerning the conditions of his probation or to perform such
other functions as are assigned to him by law.
That under section 10 the Secretary of Justice may appoint as
many probation officers as there are provinces or groups of
provinces is, of course possible. But this would be arguing on
what the law may be or should be and not on what the law is.
Between is and ought there is a far cry. The wisdom and
propriety of legislation is not for us to pass upon. We may think
a law better otherwise than it is. But much as has been said
regarding progressive interpretation and judicial legislation we
decline to amend the law. We are not permitted to read into
the law matters and provisions which are not there. Not for any
purpose — not even to save a statute from the doom of
invalidity.
Upon the other hand, the clear intention and policy of the law is
not to make the Insular Government defray the salaries of
probation officers in the provinces but to make the provinces
defray them should they desire to have the Probation Act apply
thereto. The sum of P50,000, appropriated "to carry out the
purposes of this Act", is to be applied, among other things, for
the salaries of probation officers in the central office at Manila.
These probation officers are to receive such compensations as
the Secretary of Justice may fix "until such positions shall have
been included in the Appropriation Act". It was the intention of
the legislature to empower the Secretary of Justice to fix the
salaries of the probation officers in the provinces or later on to
include said salaries in an appropriation act. Considering,
further, that the sum of P50,000 appropriated in section 10 is to
cover, among other things, the salaries of the administrative
personnel of the Probation Office, what would be left of the
amount can hardly be said to be sufficient to pay even nominal
salaries to probation officers in the provinces. We take judicial
notice of the fact that there are 48 provinces in the Philippines
and we do not think it is seriously contended that, with the fifty
thousand pesos appropriated for the central office, there can be
in each province, as intended, a probation officer with a salary
not lower than that of a provincial fiscal. If this a correct, the
contention that without section 11 of Act No. 4221 said act is
complete is an impracticable thing under the remainder of the
Act, unless it is conceded that in our case there can be a system
of probation in the provinces without probation officers.
Probation as a development of a modern penology is a
commendable system. Probation laws have been enacted, here
and in other countries, to permit what modern criminologist call
the "individualization of the punishment", the adjustment of the
penalty to the character of the criminal and the circumstances
of his particular case. It provides a period of grace in order to
aid in the rehabilitation of a penitent offender. It is believed
that, in any cases, convicts may be reformed and their
development into hardened criminals aborted. It, therefore,
takes advantage of an opportunity for reformation and avoids
imprisonment so long as the convicts gives promise of reform.
(United States vs. Murray [1925], 275 U. S., 347 357, 358; 72
Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht,
24 F. [2d], 664, 665.) The Welfare of society is its chief end and
aim. The benefit to the individual convict is merely incidental.
But while we believe that probation is commendable as a
system and its implantation into the Philippines should be
welcomed, we are forced by our inescapable duty to set the law
aside because of the repugnancy to our fundamental law.
In arriving at this conclusion, we have endeavored to consider
the different aspects presented by able counsel for both parties,
as well in their memorandums as in their oral argument. We
have examined the cases brought to our attention, and others
we have been able to reach in the short time at our command
for the study and deliberation of this case. In the examination of
the cases and in then analysis of the legal principles involved we
have inclined to adopt the line of action which in our opinion, is
supported better reasoned authorities and is more conducive to
the general welfare. (Smith, Bell & Co. vs. Natividad [1919], 40
Phil., 136.) Realizing the conflict of authorities, we have
declined to be bound by certain adjudicated cases brought to
our attention, except where the point or principle is settled
directly or by clear implication by the more authoritative
pronouncements of the Supreme Court of the United States.
This line of approach is justified because:
(a) The constitutional relations between the Federal and
the State governments of the United States and the
dual character of the American Government is a
situation which does not obtain in the Philippines;
(b) The situation of s state of the American Union of the
District of Columbia with reference to the Federal
Government of the United States is not the situation of
the province with respect to the Insular Government
(Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution
of the United States; Sims vs. Rives, 84 Fed. [2d], 871),
(c) The distinct federal and the state judicial
organizations of the United States do not embrace the
integrated judicial system of the Philippines
(Schneckenburger vs. Moran [1936], 35 Off. Gaz., p.
1317);
(d) "General propositions do not decide concrete cases"
(Justice Holmes in Lochner vs. New York [1904], 198 U.
S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace
with . . . new developments of times and
circumstances" (Chief Justice Waite in Pensacola Tel.
Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24
Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2, Dec.
1919, 141, 142), fundamental principles should be
interpreted having in view existing local conditions and
environment.
Act No. 4221 is hereby declared unconstitutional and void and
the writ of prohibition is, accordingly, granted. Without any
pronouncement regarding costs. So ordered.
G.R. No. 76633 October 18, 1988
EASTERN SHIPPING LINES, INC., petitioner,
vs.
PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION
(POEA), MINISTER OF LABOR AND EMPLOYMENT, HEARING
OFFICER ABDUL BASAR and KATHLEEN D. SACO, respondents.
CRUZ, J.:
The private respondent in this case was awarded the sum of
P192,000.00 by the Philippine Overseas Employment
Administration (POEA) for the death of her husband. The
decision is challenged by the petitioner on the principal ground
that the POEA had no jurisdiction over the case as the husband
was not an overseas worker.
Vitaliano Saco was Chief Officer of the M/V Eastern Polaris
when he was killed in an accident in Tokyo, Japan, March 15,
1985. His widow sued for damages under Executive Order No.
797 and Memorandum Circular No. 2 of the POEA. The
petitioner, as owner of the vessel, argued that the complaint
was cognizable not by the POEA but by the Social Security
System and should have been filed against the State Insurance
Fund. The POEA nevertheless assumed jurisdiction and after
considering the position papers of the parties ruled in favor of
the complainant. The award consisted of P180,000.00 as death
benefits and P12,000.00 for burial expenses.
The petitioner immediately came to this Court, prompting the
Solicitor General to move for dismissal on the ground of non-
exhaustion of administrative remedies. Ordinarily, the decisions
of the POEA should first be appealed to the National Labor
Relations Commission, on the theory inter alia that the agency
should be given an opportunity to correct the errors, if any, of
its subordinates. This case comes under one of the exceptions,
however, as the questions the petitioner is raising are
essentially questions of law. 1 Moreover, the private respondent
himself has not objected to the petitioner's direct resort to this
Court, observing that the usual procedure would delay the
disposition of the case to her prejudice.
The Philippine Overseas Employment Administration was
created under Executive Order No. 797, promulgated on May 1,
1982, to promote and monitor the overseas employment of
Filipinos and to protect their rights. It replaced the National
Seamen Board created earlier under Article 20 of the Labor
Code in 1974. Under Section 4(a) of the said executive order,
the POEA is vested with "original and exclusive jurisdiction over
all cases, including money claims, involving employee-employer
relations arising out of or by virtue of any law or contract
involving Filipino contract workers, including seamen." These
cases, according to the 1985 Rules and Regulations on Overseas
Employment issued by the POEA, include "claims for death,
disability and other benefits" arising out of such employment. 2
The petitioner does not contend that Saco was not its employee
or that the claim of his widow is not compensable. What it does
urge is that he was not an overseas worker but a 'domestic
employee and consequently his widow's claim should have been
filed with Social Security System, subject to appeal to the
Employees Compensation Commission. We see no reason to
disturb the factual finding of the POEA that Vitaliano Saco was
an overseas employee of the petitioner at the time he met with
the fatal accident in Japan in 1985.
Under the 1985 Rules and Regulations on Overseas
Employment, overseas employment is defined as "employment
of a worker outside the Philippines, including employment on
board vessels plying international waters, covered by a valid
contract. 3 A contract worker is described as "any person
working or who has worked overseas under a valid employment
contract and shall include seamen" 4 or "any person working
overseas or who has been employed by another which may be a
local employer, foreign employer, principal or partner under a
valid employment contract and shall include seamen." 5 These
definitions clearly apply to Vitaliano Saco for it is not disputed
that he died while under a contract of employment with the
petitioner and alongside the petitioner's vessel, the M/V
Eastern Polaris, while berthed in a foreign country. 6
It is worth observing that the petitioner performed at least two
acts which constitute implied or tacit recognition of the nature
of Saco's employment at the time of his death in 1985. The first
is its submission of its shipping articles to the POEA for
processing, formalization and approval in the exercise of its
regulatory power over overseas employment under Executive
Order NO. 797. 7 The second is its payment 8 of the
contributions mandated by law and regulations to the Welfare
Fund for Overseas Workers, which was created by P.D. No. 1694
"for the purpose of providing social and welfare services to
Filipino overseas workers."
Significantly, the office administering this fund, in the receipt it
prepared for the private respondent's signature, described the
subject of the burial benefits as "overseas contract worker
Vitaliano Saco." 9 While this receipt is certainly not controlling, it
does indicate, in the light of the petitioner's own previous acts,
that the petitioner and the Fund to which it had made
contributions considered Saco to be an overseas employee. The
petitioner argues that the deceased employee should be likened
to the employees of the Philippine Air Lines who, although
working abroad in its international flights, are not considered
overseas workers. If this be so, the petitioner should not have
found it necessary to submit its shipping articles to the POEA for
processing, formalization and approval or to contribute to the
Welfare Fund which is available only to overseas workers.
Moreover, the analogy is hardly appropriate as the employees
of the PAL cannot under the definitions given be considered
seamen nor are their appointments coursed through the POEA.
The award of P180,000.00 for death benefits and P12,000.00 for
burial expenses was made by the POEA pursuant to its
Memorandum Circular No. 2, which became effective on
February 1, 1984. This circular prescribed a standard contract to
be adopted by both foreign and domestic shipping companies in
the hiring of Filipino seamen for overseas employment. A
similar contract had earlier been required by the National
Seamen Board and had been sustained in a number of cases by
this Court. 10 The petitioner claims that it had never entered into
such a contract with the deceased Saco, but that is hardly a
serious argument. In the first place, it should have done so as
required by the circular, which specifically declared that "all
parties to the employment of any Filipino seamen on board any
ocean-going vessel are advised to adopt and use this
employment contract effective 01 February 1984 and to desist
from using any other format of employment contract effective
that date." In the second place, even if it had not done so, the
provisions of the said circular are nevertheless deemed written
into the contract with Saco as a postulate of the police power of
the State. 11
But the petitioner questions the validity of Memorandum
Circular No. 2 itself as violative of the principle of non-
delegation of legislative power. It contends that no authority
had been given the POEA to promulgate the said regulation; and
even with such authorization, the regulation represents an
exercise of legislative discretion which, under the principle, is
not subject to delegation.
The authority to issue the said regulation is clearly provided in
Section 4(a) of Executive Order No. 797, reading as follows:
... The governing Board of the Administration (POEA), as
hereunder provided shall promulgate the necessary
rules and regulations to govern the exercise of the
adjudicatory functions of the Administration (POEA).
Similar authorization had been granted the National Seamen
Board, which, as earlier observed, had itself prescribed a
standard shipping contract substantially the same as the format
adopted by the POEA.
The second challenge is more serious as it is true that legislative
discretion as to the substantive contents of the law cannot be
delegated. What can be delegated is the discretion to
determine how the law may be enforced, not what the law shall
be. The ascertainment of the latter subject is a prerogative of
the legislature. This prerogative cannot be abdicated or
surrendered by the legislature to the delegate. Thus, in Ynot v.
Intermediate Apellate Court 12 which annulled Executive Order
No. 626, this Court held:
We also mark, on top of all this, the questionable
manner of the disposition of the confiscated property as
prescribed in the questioned executive order. It is there
authorized that the seized property shall be distributed
to charitable institutions and other similar institutions
as the Chairman of the National Meat Inspection
Commission may see fit, in the case of carabaos.' (Italics
supplied.) The phrase "may see fit" is an extremely
generous and dangerous condition, if condition it is. It is
laden with perilous opportunities for partiality and
abuse, and even corruption. One searches in vain for
the usual standard and the reasonable guidelines, or
better still, the limitations that the officers must
observe when they make their distribution. There is
none. Their options are apparently boundless. Who
shall be the fortunate beneficiaries of their generosity
and by what criteria shall they be chosen? Only the
officers named can supply the answer, they and they
alone may choose the grantee as they see fit, and in
their own exclusive discretion. Definitely, there is here a
'roving commission a wide and sweeping authority that
is not canalized within banks that keep it from
overflowing,' in short a clearly profligate and therefore
invalid delegation of legislative powers.
There are two accepted tests to determine whether or not
there is a valid delegation of legislative power, viz, the
completeness test and the sufficient standard test. Under the
first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it
reaches the delegate the only thing he will have to do is enforce
it. 13 Under the sufficient standard test, there must be adequate
guidelines or stations in the law to map out the boundaries of
the delegate's authority and prevent the delegation from
running riot. 14
Both tests are intended to prevent a total transference of
legislative authority to the delegate, who is not allowed to step
into the shoes of the legislature and exercise a power
essentially legislative.
The principle of non-delegation of powers is applicable to all the
three major powers of the Government but is especially
important in the case of the legislative power because of the
many instances when its delegation is permitted. The occasions
are rare when executive or judicial powers have to be delegated
by the authorities to which they legally certain. In the case of
the legislative power, however, such occasions have become
more and more frequent, if not necessary. This had led to the
observation that the delegation of legislative power has become
the rule and its non-delegation the exception.
The reason is the increasing complexity of the task of
government and the growing inability of the legislature to cope
directly with the myriad problems demanding its attention. The
growth of society has ramified its activities and created peculiar
and sophisticated problems that the legislature cannot be
expected reasonably to comprehend. Specialization even in
legislation has become necessary. To many of the problems
attendant upon present-day undertakings, the legislature may
not have the competence to provide the required direct and
efficacious, not to say, specific solutions. These solutions may,
however, be expected from its delegates, who are supposed to
be experts in the particular fields assigned to them.
The reasons given above for the delegation of legislative powers
in general are particularly applicable to administrative bodies.
With the proliferation of specialized activities and their
attendant peculiar problems, the national legislature has found
it more and more necessary to entrust to administrative
agencies the authority to issue rules to carry out the general
provisions of the statute. This is called the "power of
subordinate legislation." With this power, administrative bodies
may implement the broad policies laid down in a statute by
"filling in' the details which the Congress may not have the
opportunity or competence to provide. This is effected by their
promulgation of what are known as supplementary regulations,
such as the implementing rules issued by the Department of
Labor on the new Labor Code. These regulations have the force
and effect of law. Memorandum Circular No. 2 is one such
administrative regulation. The model contract prescribed
thereby has been applied in a significant number of the cases
without challenge by the employer. The power of the POEA
(and before it the National Seamen Board) in requiring the
model contract is not unlimited as there is a sufficient standard
guiding the delegate in the exercise of the said authority. That
standard is discoverable in the executive order itself which, in
creating the Philippine Overseas Employment Administration,
mandated it to protect the rights of overseas Filipino workers to
"fair and equitable employment practices."
Parenthetically, it is recalled that this Court has accepted as
sufficient standards "Public interest" in People v.
Rosenthal 15 "justice and equity" in Antamok Gold Fields v.
CIR 16 "public convenience and welfare" in Calalang v.
Williams 17 and "simplicity, economy and efficiency"
in Cervantes v. Auditor General, 18 to mention only a few cases.
In the United States, the "sense and experience of men" was
accepted in Mutual Film Corp. v. Industrial Commission, 19 and
"national security" in Hirabayashi v. United States. 20 It is not
denied that the private respondent has been receiving a
monthly death benefit pension of P514.42 since March 1985
and that she was also paid a P1,000.00 funeral benefit by the
Social Security System. In addition, as already observed, she also
received a P5,000.00 burial gratuity from the Welfare Fund for
Overseas Workers. These payments will not preclude allowance
of the private respondent's claim against the petitioner because
it is specifically reserved in the standard contract of
employment for Filipino seamen under Memorandum Circular
No. 2, Series of 1984, that—
Section C. Compensation and Benefits.—
1. In case of death of the seamen during the term of his
Contract, the employer shall pay his beneficiaries the
amount of:
a. P220,000.00 for master and chief engineers
b. P180,000.00 for other officers, including
radio operators and master electrician
c. P 130,000.00 for ratings.
2. It is understood and agreed that the benefits
mentioned above shall be separate and distinct from,
and will be in addition to whatever benefits which the
seaman is entitled to under Philippine laws. ...
3. ...
c. If the remains of the seaman is buried in the
Philippines, the owners shall pay the
beneficiaries of the seaman an amount not
exceeding P18,000.00 for burial expenses.
The underscored portion is merely a reiteration of
Memorandum Circular No. 22, issued by the National Seamen
Board on July 12,1976, providing an follows:
Income Benefits under this Rule Shall be Considered
Additional Benefits.—
All compensation benefits under Title II, Book Four of
the Labor Code of the Philippines (Employees
Compensation and State Insurance Fund) shall be
granted, in addition to whatever benefits, gratuities or
allowances that the seaman or his beneficiaries may be
entitled to under the employment contract approved by
the NSB. If applicable, all benefits under the Social
Security Law and the Philippine Medicare Law shall be
enjoyed by the seaman or his beneficiaries in
accordance with such laws.
The above provisions are manifestations of the concern of the
State for the working class, consistently with the social justice
policy and the specific provisions in the Constitution for the
protection of the working class and the promotion of its
interest.
One last challenge of the petitioner must be dealt with to close t
case. Its argument that it has been denied due process because
the same POEA that issued Memorandum Circular No. 2 has
also sustained and applied it is an uninformed criticism of
administrative law itself. Administrative agencies are vested
with two basic powers, the quasi-legislative and the quasi-
judicial. The first enables them to promulgate implementing
rules and regulations, and the second enables them to interpret
and apply such regulations. Examples abound: the Bureau of
Internal Revenue adjudicates on its own revenue regulations,
the Central Bank on its own circulars, the Securities and
Exchange Commission on its own rules, as so too do the
Philippine Patent Office and the Videogram Regulatory Board
and the Civil Aeronautics Administration and the Department of
Natural Resources and so on ad infinitum on their respective
administrative regulations. Such an arrangement has been
accepted as a fact of life of modern governments and cannot be
considered violative of due process as long as the cardinal rights
laid down by Justice Laurel in the landmark case of Ang Tibay v.
Court of Industrial Relations 21 are observed.
Whatever doubts may still remain regarding the rights of the
parties in this case are resolved in favor of the private
respondent, in line with the express mandate of the Labor Code
and the principle that those with less in life should have more in
law. When the conflicting interests of labor and capital are
weighed on the scales of social justice, the heavier influence of
the latter must be counter-balanced by the sympathy and
compassion the law must accord the underprivileged worker.
This is only fair if he is to be given the opportunity and the right
to assert and defend his cause not as a subordinate but as a
peer of management, with which he can negotiate on even
plane. Labor is not a mere employee of capital but its active and
equal partner. WHEREFORE, the petition is DISMISSED, with
costs against the petitioner. The temporary restraining order
dated December 10, 1986 is hereby LIFTED. It is so ordered.
G.R. No. 17122 February 27, 1922
THE UNITED STATES, plaintiff-appellee,
vs.
ANG TANG HO, defendant-appellant.
Williams & Ferrier for appellant.
Acting Attorney-General Tuason for appellee.
JOHNS, J.:
At its special session of 1919, the Philippine Legislature passed
Act No. 2868, entitled "An Act penalizing the monopoly and
holding of, and speculation in, palay, rice, and corn under
extraordinary circumstances, regulating the distribution and
sale thereof, and authorizing the Governor-General, with the
consent of the Council of State, to issue the necessary rules and
regulations therefor, and making an appropriation for this
purpose," the material provisions of which are as follows:
Section 1. The Governor-General is hereby authorized,
whenever, for any cause, conditions arise resulting in an
extraordinary rise in the price of palay, rice or corn, to
issue and promulgate, with the consent of the Council
of State, temporary rules and emergency measures for
carrying out the purpose of this Act, to wit:
(a) To prevent the monopoly and hoarding of, and
speculation in, palay, rice or corn.
(b) To establish and maintain a government control of
the distribution or sale of the commodities referred to
or have such distribution or sale made by the
Government itself.
(c) To fix, from time to time the quantities of palay rice,
or corn that a company or individual may acquire, and
the maximum sale price that the industrial or merchant
may demand.
(d) . . .
SEC. 2. It shall be unlawful to destroy, limit, prevent or
in any other manner obstruct the production or milling
of palay, rice or corn for the purpose of raising the
prices thereof; to corner or hoard said products as
defined in section three of this Act; . . .
Section 3 defines what shall constitute a monopoly or hoarding
of palay, rice or corn within the meaning of this Act, but does
not specify the price of rice or define any basic for fixing the
price.
SEC. 4. The violations of any of the provisions of this Act
or of the regulations, orders and decrees promulgated
in accordance therewith shall be punished by a fine of
not more than five thousands pesos, or by
imprisonment for not more than two years, or both, in
the discretion of the court: Provided, That in the case of
companies or corporations the manager or
administrator shall be criminally liable.
SEC. 7. At any time that the Governor-General, with the
consent of the Council of State, shall consider that the
public interest requires the application of the provisions
of this Act, he shall so declare by proclamation, and any
provisions of other laws inconsistent herewith shall
from then on be temporarily suspended.
Upon the cessation of the reasons for which such
proclamation was issued, the Governor-General, with
the consent of the Council of State, shall declare the
application of this Act to have likewise terminated, and
all laws temporarily suspended by virtue of the same
shall again take effect, but such termination shall not
prevent the prosecution of any proceedings or cause
begun prior to such termination, nor the filing of any
proceedings for an offense committed during the period
covered by the Governor-General's proclamation.
August 1, 1919, the Governor-General issued a proclamation
fixing the price at which rice should be sold.
August 8, 1919, a complaint was filed against the defendant,
Ang Tang Ho, charging him with the sale of rice at an excessive
price as follows:
The undersigned accuses Ang Tang Ho of a violation of
Executive Order No. 53 of the Governor-General of the
Philippines, dated the 1st of August, 1919, in relation
with the provisions of sections 1, 2 and 4 of Act No.
2868, committed as follows:
That on or about the 6th day of August, 1919, in the city
of Manila, Philippine Islands, the said Ang Tang Ho,
voluntarily, illegally and criminally sold to Pedro
Trinidad, one ganta of rice at the price of eighty
centavos (P.80), which is a price greater than that fixed
by Executive Order No. 53 of the Governor-General of
the Philippines, dated the 1st of August, 1919, under
the authority of section 1 of Act No. 2868. Contrary to
law.
Upon this charge, he was tried, found guilty and sentenced to
five months' imprisonment and to pay a fine of P500, from
which he appealed to this court, claiming that the lower court
erred in finding Executive Order No. 53 of 1919, to be of any
force and effect, in finding the accused guilty of the offense
charged, and in imposing the sentence.
The official records show that the Act was to take effect on its
approval; that it was approved July 30, 1919; that the Governor-
General issued his proclamation on the 1st of August, 1919; and
that the law was first published on the 13th of August, 1919;
and that the proclamation itself was first published on the 20th
of August, 1919.
The question here involves an analysis and construction of Act
No. 2868, in so far as it authorizes the Governor-General to fix
the price at which rice should be sold. It will be noted that
section 1 authorizes the Governor-General, with the consent of
the Council of State, for any cause resulting in an extraordinary
rise in the price of palay, rice or corn, to issue and promulgate
temporary rules and emergency measures for carrying out the
purposes of the Act. By its very terms, the promulgation of
temporary rules and emergency measures is left to the
discretion of the Governor-General. The Legislature does not
undertake to specify or define under what conditions or for
what reasons the Governor-General shall issue the
proclamation, but says that it may be issued "for any cause,"
and leaves the question as to what is "any cause" to the
discretion of the Governor-General. The Act also says: "For any
cause, conditions arise resulting in an extraordinary rise in the
price of palay, rice or corn." The Legislature does not specify or
define what is "an extraordinary rise." That is also left to the
discretion of the Governor-General. The Act also says that the
Governor-General, "with the consent of the Council of State," is
authorized to issue and promulgate "temporary rules and
emergency measures for carrying out the purposes of this Act."
It does not specify or define what is a temporary rule or an
emergency measure, or how long such temporary rules or
emergency measures shall remain in force and effect, or when
they shall take effect. That is to say, the Legislature itself has
not in any manner specified or defined any basis for the order,
but has left it to the sole judgement and discretion of the
Governor-General to say what is or what is not "a cause," and
what is or what is not "an extraordinary rise in the price of rice,"
and as to what is a temporary rule or an emergency measure for
the carrying out the purposes of the Act. Under this state of
facts, if the law is valid and the Governor-General issues a
proclamation fixing the minimum price at which rice should be
sold, any dealer who, with or without notice, sells rice at a
higher price, is a criminal. There may not have been any cause,
and the price may not have been extraordinary, and there may
not have been an emergency, but, if the Governor-General
found the existence of such facts and issued a proclamation,
and rice is sold at any higher price, the seller commits a crime.
By the organic law of the Philippine Islands and the Constitution
of the United States all powers are vested in the Legislative,
Executive and Judiciary. It is the duty of the Legislature to make
the law; of the Executive to execute the law; and of the
Judiciary to construe the law. The Legislature has no authority
to execute or construe the law, the Executive has no authority
to make or construe the law, and the Judiciary has no power to
make or execute the law. Subject to the Constitution only, the
power of each branch is supreme within its own jurisdiction,
and it is for the Judiciary only to say when any Act of the
Legislature is or is not constitutional. Assuming, without
deciding, that the Legislature itself has the power to fix the
price at which rice is to be sold, can it delegate that power to
another, and, if so, was that power legally delegated by Act No.
2868? In other words, does the Act delegate legislative power
to the Governor-General? By the Organic Law, all Legislative
power is vested in the Legislature, and the power conferred
upon the Legislature to make laws cannot be delegated to the
Governor-General, or any one else. The Legislature cannot
delegate the legislative power to enact any law. If Act no 2868 is
a law unto itself and within itself, and it does nothing more than
to authorize the Governor-General to make rules and
regulations to carry the law into effect, then the Legislature
itself created the law. There is no delegation of power and it is
valid. On the other hand, if the Act within itself does not define
crime, and is not a law, and some legislative act remains to be
done to make it a law or a crime, the doing of which is vested in
the Governor-General, then the Act is a delegation of legislative
power, is unconstitutional and void.
The Supreme Court of the United States in what is known as
the Granger Cases (94 U.S., 183-187; 24 L. ed., 94), first laid
down the rule:
Railroad companies are engaged in a public
employment affecting the public interest and, under the
decision in Munn vs. Ill., ante, 77, are subject to
legislative control as to their rates of fare and freight
unless protected by their charters.
The Illinois statute of Mar. 23, 1874, to establish
reasonable maximum rates of charges for the
transportation of freights and passengers on the
different railroads of the State is not void as being
repugnant to the Constitution of the United States or to
that of the State.
It was there for the first time held in substance that a railroad
was a public utility, and that, being a public utility, the State had
power to establish reasonable maximum freight and passenger
rates. This was followed by the State of Minnesota in enacting a
similar law, providing for, and empowering, a railroad
commission to hear and determine what was a just and
reasonable rate. The constitutionality of this law was attacked
and upheld by the Supreme Court of Minnesota in a learned and
exhaustive opinion by Justice Mitchell, in the case of
State vs. Chicago, Milwaukee & St. Paul ry. Co. (38 Minn., 281),
in which the court held:
Regulations of railway tariffs — Conclusiveness of
commission's tariffs. — Under Laws 1887, c. 10, sec. 8,
the determination of the railroad and warehouse
commission as to what are equal and reasonable fares
and rates for the transportation of persons and
property by a railway company is conclusive, and, in
proceedings by mandamus to compel compliance with
the tariff of rates recommended and published by them,
no issue can be raised or inquiry had on that question.
Same — constitution — Delegation of power to
commission. — The authority thus given to the
commission to determine, in the exercise of their
discretion and judgement, what are equal and
reasonable rates, is not a delegation of legislative
power.
It will be noted that the law creating the railroad commission
expressly provides —
 That all charges by any common carrier for the
transportation of passengers and property shall be
equal and reasonable.
With that as a basis for the law, power is then given to the
railroad commission to investigate all the facts, to hear and
determine what is a just and reasonable rate. Even then that
law does not make the violation of the order of the commission
a crime. The only remedy is a civil proceeding. It was there held
— discretion as to what it shall be, and conferring
That the legislative itself has the power to regulate
railroad charges is now too well settled to require either
argument or citation of authority.
The difference between the power to say what the law
shall be, and the power to adopt rules and regulations,
or to investigate and determine the facts, in order to
carry into effect a law already passed, is apparent. The
true distinction is between the delegation of power to
make the law, which necessarily involves a discretion as
to what it shall be, and the conferring an authority or
discretion to be exercised under and in pursuance of
the law.
The legislature enacts that all freights rates and
passenger fares should be just and reasonable. It had
the undoubted power to fix these rates at whatever it
deemed equal and reasonable.
They have not delegated to the commission any
authority or discretion as to what the law shall be, —
which would not be allowable, — but have merely
conferred upon it an authority and discretion, to be
exercised in the execution of the law, and under and in
pursuance of it, which is entirely permissible. The
legislature itself has passed upon the expediency of the
law, and what is shall be. The commission is intrusted
with no authority or discretion upon these questions. It
can neither make nor unmake a single provision of law.
It is merely charged with the administration of the law,
and with no other power.
The delegation of legislative power was before the Supreme
Court of Wisconsin in Dowling vs. Lancoshire Ins. Co. (92 Wis.,
63). The opinion says:
"The true distinction is between the delegation of
power to make the law, which necessarily involves a
authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first
cannot be done; to the latter no valid objection can be
made."
The act, in our judgment, wholly fails to provide definitely and
clearly what the standard policy should contain, so that it could
be put in use as a uniform policy required to take the place of all
others, without the determination of the insurance
commissioner in respect to maters involving the exercise of a
legislative discretion that could not be delegated, and without
which the act could not possibly be put in use as an act in
confirmity to which all fire insurance policies were required to
be issued.
The result of all the cases on this subject is that a law must be
complete, in all its terms and provisions, when it leaves the
legislative branch of the government, and nothing must be left
to the judgement of the electors or other appointee or delegate
of the legislature, so that, in form and substance, it is a law in all
its details in presenti, but which may be left to take effect in
futuro, if necessary, upon the ascertainment of any prescribed
fact or event.
The delegation of legislative power was before the Supreme
Court in United States vs. Grimaud (220 U.S., 506; 55 L. ed.,
563), where it was held that the rules and regulations of the
Secretary of Agriculture as to a trespass on government land in
a forest reserve were valid constitutional. The Act there
provided that the Secretary of Agriculture ". . . may make such
rules and regulations and establish such service as will insure
the object of such reservations; namely, to regulate their
occupancy and use, and to preserve the forests thereon from
destruction; and any violation of the provisions of this act or
such rules and regulations shall be punished, . . ."
The brief of the United States Solicitor-General says:
In refusing permits to use a forest reservation for stock
grazing, except upon stated terms or in stated ways, the
Secretary of Agriculture merely assert and enforces the
proprietary right of the United States over land which it
owns. The regulation of the Secretary, therefore, is not
an exercise of legislative, or even of administrative,
power; but is an ordinary and legitimate refusal of the
landowner's authorized agent to allow person having no
right in the land to use it as they will. The right of
proprietary control is altogether different from
governmental authority.
The opinion says:
From the beginning of the government, various acts
have been passed conferring upon executive officers
power to make rules and regulations, — not for the
government of their departments, but for administering
the laws which did govern. None of these statutes could
confer legislative power. But when Congress had
legislated power. But when Congress had legislated and
indicated its will, it could give to those who were to act
under such general provisions "power to fill up the
details" by the establishment of administrative rules
and regulations, the violation of which could be
punished by fine or imprisonment fixed by Congress, or
by penalties fixed by Congress, or measured by the
injury done.
That "Congress cannot delegate legislative power is a
principle universally recognized as vital to the integrity
 and maintenance of the system of government
ordained by the Constitution."
If, after the passage of the act and the promulgation of
the rule, the defendants drove and grazed their sheep
upon the reserve, in violation of the regulations, they
were making an unlawful use of the government's
property. In doing so they thereby made themselves
liable to the penalty imposed by Congress.
The subjects as to which the Secretary can regulate are defined.
The lands are set apart as a forest reserve. He is required to
make provisions to protect them from depredations and from
harmful uses. He is authorized 'to regulate the occupancy and
use and to preserve the forests from destruction.' A violation of
reasonable rules regulating the use and occupancy of the
property is made a crime, not by the Secretary, but by
Congress."
The above are leading cases in the United States on the
question of delegating legislative power. It will be noted that in
the "Granger Cases," it was held that a railroad company was a
public corporation, and that a railroad was a public utility, and
that, for such reasons, the legislature had the power to fix and
determine just and reasonable rates for freight and passengers.
The Minnesota case held that, so long as the rates were just and
reasonable, the legislature could delegate the power to
ascertain the facts and determine from the facts what were just
and reasonable rates,. and that in vesting the commission with
such power was not a delegation of legislative power.
The Wisconsin case was a civil action founded upon a
"Wisconsin standard policy of fire insurance," and the court
held that "the act, . . . wholly fails to provide definitely and
clearly what the standard policy should contain, so that it could
be put in use as a uniform policy required to take the place of all
others, without the determination of the insurance
commissioner in respect to matters involving the exercise of a
legislative discretion that could not be delegated."
The case of the United States Supreme Court, supra dealt with
rules and regulations which were promulgated by the Secretary
of Agriculture for Government land in the forest reserve.
These decisions hold that the legislative only can enact a law,
and that it cannot delegate it legislative authority.
The line of cleavage between what is and what is not a
delegation of legislative power is pointed out and clearly
defined. As the Supreme Court of Wisconsin says:
That no part of the legislative power can be delegated
by the legislature to any other department of the
government, executive or judicial, is a fundamental
principle in constitutional law, essential to the integrity
and maintenance of the system of government
established by the constitution.
Where an act is clothed with all the forms of law, and is
complete in and of itself, it may be provided that it shall
become operative only upon some certain act or event,
or, in like manner, that its operation shall be
suspended.
The legislature cannot delegate its power to make a
law, but it can make a law to delegate a power to
determine some fact or state of things upon which the
law makes, or intends to make, its own action to
depend.
The Village of Little Chute enacted an ordinance which provides:
All saloons in said village shall be closed at 11 o'clock
P.M. each day and remain closed until 5 o'clock on the
following morning, unless by special permission of the
president.
Construing it in 136 Wis., 526; 128 A. S. R., 1100,1 the Supreme
Court of that State says:
We regard the ordinance as void for two reasons; First,
because it attempts to confer arbitrary power upon an
executive officer, and allows him, in executing the
ordinance, to make unjust and groundless
discriminations among persons similarly situated;
second, because the power to regulate saloons is a law-
making power vested in the village board, which cannot
be delegated. A legislative body cannot delegate to a
mere administrative officer power to make a law, but it
can make a law with provisions that it shall go into
effect or be suspended in its operations upon the
ascertainment of a fact or state of facts by an
administrative officer or board. In the present case the
ordinance by its terms gives power to the president to
decide arbitrary, and in the exercise of his own
discretion, when a saloon shall close. This is an attempt
to vest legislative discretion in him, and cannot be
sustained.
The legal principle involved there is squarely in point here.
It must be conceded that, after the passage of act No. 2868, and
before any rules and regulations were promulgated by the
Governor-General, a dealer in rice could sell it at any price, even
at a peso per "ganta," and that he would not commit a crime,
because there would be no law fixing the price of rice, and the
sale of it at any price would not be a crime. That is to say, in the
absence of a proclamation, it was not a crime to sell rice at any
price. Hence, it must follow that, if the defendant committed a
crime, it was because the Governor-General issued the
proclamation. There was no act of the Legislature making it a
crime to sell rice at any price, and without the proclamation, the
sale of it at any price was to a crime.
The Executive order2 provides:
(5) The maximum selling price of palay, rice or corn is
hereby fixed, for the time being as follows:
In Manila —
 Palay at P6.75 per sack of 57½ kilos, or 29 centavos per
ganta.
Rice at P15 per sack of 57½ kilos, or 63 centavos per
ganta.
Corn at P8 per sack of 57½ kilos, or 34 centavos per
ganta.
In the provinces producing palay, rice and corn, the
maximum price shall be the Manila price less the cost of
transportation from the source of supply and necessary
handling expenses to the place of sale, to be
determined by the provincial treasurers or their
deputies.
In provinces, obtaining their supplies from Manila or
other producing provinces, the maximum price shall be
the authorized price at the place of supply or the Manila
price as the case may be, plus the transportation cost,
from the place of supply and the necessary handling
expenses, to the place of sale, to be determined by the
provincial treasurers or their deputies.
(6) Provincial treasurers and their deputies are hereby
directed to communicate with, and execute all
instructions emanating from the Director of Commerce
and Industry, for the most effective and proper
enforcement of the above regulations in their
respective localities.
The law says that the Governor-General may fix "the maximum
sale price that the industrial or merchant may demand." The
law is a general law and not a local or special law.
The proclamation undertakes to fix one price for rice in Manila
and other and different prices in other and different provinces
in the Philippine Islands, and delegates the power to determine
the other and different prices to provincial treasurers and their
deputies. Here, then, you would have a delegation of legislative
power to the Governor-General, and a delegation by him of that
power to provincial treasurers and their deputies, who "are
hereby directed to communicate with, and execute all
instructions emanating from the Director of Commerce and
Industry, for the most effective and proper enforcement of the
above regulations in their respective localities." The issuance of
the proclamation by the Governor-General was the exercise of
the delegation of a delegated power, and was even a sub
delegation of that power.
Assuming that it is valid, Act No. 2868 is a general law and does
not authorize the Governor-General to fix one price of rice in
Manila and another price in Iloilo. It only purports to authorize
him to fix the price of rice in the Philippine Islands under a law,
which is General and uniform, and not local or special. Under
the terms of the law, the price of rice fixed in the proclamation
must be the same all over the Islands. There cannot be one
price at Manila and another at Iloilo. Again, it is a mater of
common knowledge, and of which this court will take judicial
notice, that there are many kinds of rice with different and
corresponding market values, and that there is a wide range in
the price, which varies with the grade and quality. Act No. 2868
makes no distinction in price for the grade or quality of the rice,
and the proclamation, upon which the defendant was tried and
convicted, fixes the selling price of rice in Manila "at P15 per
sack of 57½ kilos, or 63 centavos per ganta," and is uniform as
to all grades of rice, and says nothing about grade or quality.
Again, it will be noted that the law is confined to palay, rice and
corn. They are products of the Philippine Islands. Hemp,
tobacco, coconut, chickens, eggs, and many other things are
also products. Any law which single out palay, rice or corn from
the numerous other products of the Islands is not general or
uniform, but is a local or special law. If such a law is valid, then
by the same principle, the Governor-General could be
authorized by proclamation to fix the price of meat, eggs,
chickens, coconut, hemp, and tobacco, or any other product of
the Islands. In the very nature of things, all of that class of laws
should be general and uniform. Otherwise, there would be an
unjust discrimination of property rights, which, under the law,
must be equal and inform. Act No. 2868 is nothing more than a
floating law, which, in the discretion and by a proclamation of
the Governor-General, makes it a floating crime to sell rice at a
price in excess of the proclamation, without regard to grade or
quality.
When Act No. 2868 is analyzed, it is the violation of the
proclamation of the Governor-General which constitutes the
crime. Without that proclamation, it was no crime to sell rice at
any price. In other words, the Legislature left it to the sole
discretion of the Governor-General to say what was and what
was not "any cause" for enforcing the act, and what was and
what was not "an extraordinary rise in the price of palay, rice or
corn," and under certain undefined conditions to fix the price at
which rice should be sold, without regard to grade or quality,
also to say whether a proclamation should be issued, if so,
when, and whether or not the law should be enforced, how
long it should be enforced, and when the law should be
suspended. The Legislature did not specify or define what was
"any cause," or what was "an extraordinary rise in the price of
rice, palay or corn," Neither did it specify or define the
conditions upon which the proclamation should be issued. In
the absence of the proclamation no crime was committed. The
alleged sale was made a crime, if at all, because the Governor-
General issued the proclamation. The act or proclamation does
not say anything about the different grades or qualities of rice,
and the defendant is charged with the sale "of one ganta of rice
at the price of eighty centavos (P0.80) which is a price greater
than that fixed by Executive order No. 53."
We are clearly of the opinion and hold that Act No. 2868, in so
far as it undertakes to authorized the Governor-General in his
discretion to issue a proclamation, fixing the price of rice, and to
make the sale of rice in violation of the price of rice, and to
make the sale of rice in violation of the proclamation a crime, is
unconstitutional and void.
It may be urged that there was an extraordinary rise in the price
of rice and profiteering, which worked a severe hardship on the
poorer classes, and that an emergency existed, but the question
here presented is the constitutionality of a particular portion of
a statute, and none of such matters is an argument for, or
against, its constitutionality.
The Constitution is something solid, permanent an substantial.
Its stability protects the life, liberty and property rights of the
rich and the poor alike, and that protection ought not to change
with the wind or any emergency condition. The fundamental
question involved in this case is the right of the people of the
Philippine Islands to be and live under a republican form of
government. We make the broad statement that no state or
nation, living under republican form of government, under the
terms and conditions specified in Act No. 2868, has ever
enacted a law delegating the power to any one, to fix the price
at which rice should be sold. That power can never be delegated
under a republican form of government.
In the fixing of the price at which the defendant should sell his
rice, the law was not dealing with government property. It was
dealing with private property and private rights, which are
sacred under the Constitution. If this law should be sustained,
upon the same principle and for the same reason, the
Legislature could authorize the Governor-General to fix the
price of every product or commodity in the Philippine Islands,
and empower him to make it a crime to sell any product at any
other or different price.
It may be said that this was a war measure, and that for such
reason the provision of the Constitution should be suspended.
But the Stubborn fact remains that at all times the judicial
power was in full force and effect, and that while that power
was in force and effect, such a provision of the Constitution
could not be, and was not, suspended even in times of war. It
may be claimed that during the war, the United States
Government undertook to, and did, fix the price at which wheat
and flour should be bought and sold, and that is true. There, the
United States had declared war, and at the time was at war with
other nations, and it was a war measure, but it is also true that
in doing so, and as a part of the same act, the United States
commandeered all the wheat and flour, and took possession of
it, either actual or constructive, and the government itself
became the owner of the wheat and flour, and fixed the price to
be paid for it. That is not this case. Here the rice sold was the
personal and private property of the defendant, who sold it to
one of his customers. The government had not bought and did
not claim to own the rice, or have any interest in it, and at the
time of the alleged sale, it was the personal, private property of
the defendant. It may be that the law was passed in the interest
of the public, but the members of this court have taken on
solemn oath to uphold and defend the Constitution, and it
ought not to be construed to meet the changing winds or
emergency conditions. Again, we say that no state or nation
under a republican form of government ever enacted a law
authorizing any executive, under the conditions states, to fix the
price at which a price person would sell his own rice, and make
the broad statement that no decision of any court, on principle
or by analogy, will ever be found which sustains the
constitutionality of the particular portion of Act No. 2868 here
in question. By the terms of the Organic Act, subject only to
constitutional limitations, the power to legislate and enact laws
is vested exclusively in the Legislative, which is elected by a
direct vote of the people of the Philippine Islands. As to the
question here involved, the authority of the Governor-General
to fix the maximum price at which palay, rice and corn may be
sold in the manner power in violation of the organic law.
This opinion is confined to the particular question here
involved, which is the right of the Governor-General, upon the
terms and conditions stated in the Act, to fix the price of rice
and make it a crime to sell it at a higher price, and which holds
that portions of the Act unconstitutional. It does not decide or
undertake to construe the constitutionality of any of the
remaining portions of the Act.
The judgment of the lower court is reversed, and the defendant
discharged. So ordered.
G.R. No. 78164. July 31, 1987.
TERESITA TABLARIN, MA. LUZ CIRIACO, MA. NIMFA B. ROVIRA,
EVANGELINA S. LABAO, in their behalf and in behalf of
applicants for admission into the Medical Colleges during the
school year 1987-88 and future years who have not taken or
successfully hurdled the National Medical Admission Test
(NMAT), Petitioners,
v.
THE HONORABLE JUDGE ANGELINA S. GUTIERREZ, Presiding
Judge of Branch XXXVII of the Regional Trial Court of the
National Capital Judicial Region with seat at Manila, THE
HONORABLE SECRETARY LOURDES QUISUMBING, in her
capacity as Chairman of the BOARD OF MEDICAL EDUCATION,
and THE CENTER FOR EDUCATIONAL MEASUREMENT
(CEM), Respondents.
FELICIANO, J.:
The petitioners sought admission into colleges or schools of
medicine for the school year 1987-1988. However, the
petitioners either did not take or did not successfully take the
National Medical Admission Test (NMAT) required by the Board
of Medical Education, one of the public respondents, and
administered by the private respondent, the Center for
Educational Measurement (CEM).
On 5 March 1987, the petitioners filed with the Regional Trial
Court, National Capital Judicial Region, a Petition for
Declaratory Judgment and Prohibition with a prayer for
Temporary Restraining Order and Preliminary Injunction. The
petitioners sought to enjoin the Secretary of Education, Culture
and Sports, the Board of Medical Education and the Center for
Educational Measurement from enforcing Section 5 (a) and (f)
of Republic Act No. 2382, as amended, and MECS Order No. 52,
series of 1985, dated 23 August 1985 and from requiring the
taking and passing of the NMAT as a condition for securing
certificates of eligibility for admission, from proceeding with
accepting applications for taking the NMAT and from
administering the NMAT as scheduled on 26 April 1987 and in
the future. After hearing on the petition for issuance of
preliminary injunction, the trial court denied said petition on 20
April 1987. The NMAT was conducted and administered as
previously scheduled.
Petitioners accordingly filed this Special Civil Action
for Certiorari with this Court to set aside the Order of the
respondent judge denying the petition for issuance of a writ of
preliminary injunction.
Republic Act 2382, as amended by Republic Acts Nos. 4224 and
5946, known as the "Medical Act of 1959" defines its basic
objectives in the following manner:
"SECTION 1. Objectives. — This Act provides for and shall
govern (a) the standardization and regulation of medical
education; (b) the examination for registration of physicians;
and (c) the supervision, control and regulation of the practice of
medicine in the Philippines." (Emphasis supplied)
The statute, among other things, created a Board of Medical
Education which is composed of (a) the Secretary of Education,
Culture and Sports or his duly authorized representative, as
Chairman; (b) the Secretary of Health or his duly authorized
representative; (c) the Director of Higher Education or his duly
authorized representative; (d) the Chairman of the Medical
Board or his duly authorized representative; (e) a representative
of the Philippine Medical Association; (f) the Dean of the
College of Medicine, University of the Philippines; (g) a
representative of the Council of Deans of Philippine Medical
Schools; and (h) a representative of the Association of Philippine
Medical Colleges, as members. The functions of the Board of
Medical Education specified in Section 5 of the statute include
the following:
"(a) To determine and prescribe requirements for admission
into a recognized college of medicine;
(b) To determine and prescribe requirements for minimum
physical facilities of colleges of medicine, to wit: buildings,
including hospitals, equipment and supplies, apparatus,
instruments, appliances, laboratories, bed capacity for
instruction purposes, operating and delivery rooms, facilities for
outpatient services, and others, used for didactic and practical
instruction in accordance with modern trends;
(c) To determine and prescribe the minimum number and
minimum qualifications of teaching personnel, including
student-teachers ratio;
(d) To determine and prescribe the minimum required
curriculum leading to the degree of Doctor of Medicine;
(e) To authorize the implementation of experimental medical
curriculum in a medical school that has exceptional faculty and
instrumental facilities. Such an experimental curriculum may
prescribe admission and graduation requirements other than
those prescribed in this Act; Provided, That only exceptional
students shall be enrolled in the experimental curriculum;
(f) To accept applications for certification for admission to a
medical school and keep a register of those issued said
certificate; and to collect from said applicants the amount of
twenty-five pesos each which shall accrue to the operating fund
of the Board of Medical Education;
(g) To select, determine and approve hospitals or some
departments of the hospitals for training which comply with the
minimum specific physical facilities as provided in subparagraph
(b) hereof; and
(h) To promulgate and prescribe and enforce the necessary
rules and regulations for the proper implementation of the
foregoing functions." (Emphasis supplied).
Section 7 prescribes certain minimum requirements for
applicants to medical schools:
"Admission requirements. — The medical college may admit
any student who has not been convicted by any court of
competent jurisdiction of any offense involving moral turpitude
and who presents (a) a record of completion of a bachelor’s
degree in science or arts; (b) a certificate of eligibility for
entrance to a medical school from the Board of Medical
Education; (c) a certificate of good moral character issued by
two former professors in the college of liberal arts; and (d) birth
certificate. Nothing in this act shall be construed to inhibit any
college of medicine from establishing, in addition to the
preceding, other entrance requirements that may be deemed
admissible.
. . ." (Emphasis supplied)
MECS Order No. 52, s. 1985, issued by the then Minister of
Education, Culture and Sports and dated 23 August 1985,
established a uniform admission test called the National
Medical Admission Test (NMAT) as an additional requirement
for issuance of a certificate of eligibility for admission into
medical schools of the Philippines, beginning with the school
year 1986-1987. This Order goes on to state that:
"2. The NMAT, an aptitude test, is considered as an instrument
toward upgrading the selection of applicants for admission into
the medical schools and its calculated to improve the quality of
medical education in the country. The cutoff score for the
successful applicants, based on the scores on the NMAT, shall
be determined every year by the Board of Medical Education
after consultation with the Association of Philippine Medical
Colleges. The NMAT rating of each applicant, together with the
other admission requirements as presently called for under
existing rules, shall serve as a basis for the issuance of the
prescribed certificate of eligibility for admission into the medical
colleges.
3. Subject to the prior approval of the Board of Medical
Education, each medical college may give other tests for
applicants who have been issued a corresponding certificate of
eligibility for admission that will yield information on other
aspects of the applicant’s personality to complement the
information derived from the NMAT.
x x x the youth in nation building and shall promote and protect their
8. No applicant shall be issued the requisite Certificate of
Eligibility for Admission (CEA), or admitted for enrollment as
first year student in any medical college, beginning the school
year, 1986- 87, without the required NMAT qualification as
called for under this Order." (Emphasis supplied)
Pursuant to MECS Order No. 52, s. 1985, the private respondent
Center conducted NMATs for entrance to medical colleges
during the school year 1986-1987. In December 1986 and in
April 1987, respondent Center conducted the NMATs for
admission to medical colleges during the school year 1987-
1988.
Petitioners raise the question of whether or not a writ of
preliminary injunction may be issued to enjoin the enforcement
of Section 5 (a) and (f) of Republic Act No. 2382, as amended,
and MECS Order No. 52, s. 1985, pending resolution of the issue
of constitutionality of the assailed statute and administrative
order. We regard this issue as entirely peripheral in nature. It
scarcely needs documentation that a court would issue a writ of
preliminary injunction only when the petitioner assailing a
statute or administrative order has made out a case of
unconstitutionality strong enough to overcome, in the mind of
the judge, the presumption of constitutionality, aside from
showing a clear legal right to the remedy sought. The
fundamental issue is of course the constitutionality of the
statute or order assailed.
1. The petitioners invoke a number of provisions of the 1987
Constitution which are, in their assertion, violated by the
continued implementation of Section 5 (a) and (f) of Republic
Act 2381, as amended, and MECS Order No. 52, s. 1985. The
provisions invoked read as follows:
(a) Article II, Section 11: "The state values the dignity of every
human person and guarantees full respect of human rights.
"(b) Article II, Section 13: "The State recognizes the vital role of
physical, moral, spiritual, intellectual and social well being. It
shall inculcate in the youth patriotism and nationalism, and
encourage their involvement in public and civic affairs.
"(c) Article II, Section 17: "The State shall give priority to
education, science and technology, arts, culture and sports to
foster patriotism and nationalism, accelerate social progress
and to promote total human liberation and development.
"(d) Article XIV, Section 1: "The State shall protect and promote
the right of all citizens to quality education at all levels and take
appropriate steps to make such education accessible to all.
"(e) Article XIV, Section 5 (3): "Every citizen has a right to select
a profession or course of study, subject to fair, reasonable and
equitable admission and academic requirements."
Article II of the 1987 Constitution sets forth in its second half
certain "State policies" which the government is enjoined to
pursue and promote. The petitioners here have not seriously
undertaken to demonstrate to what extent or in what manner
the statute and the administrative order they assail collide with
the State policies embodied in Sections 11, 13 and 17. They
have not, in other words, discharged the burden of proof which
lies upon them. This burden is heavy enough where the
constitutional provision invoked is relatively specific, rather
than abstract, in character and cast in behavioral or operational
terms. That burden of proof becomes of necessity heavier
where the constitutional provision invoked is cast, as the second
portion of Article II is cast, in language descriptive of basic
policies, or more precisely, of basic objectives of State policy
and therefore highly generalized in tenor. The petitioners have
not made their case, even a prima facie case, and we are not
compelled to speculate and to imagine how the legislation and
regulation impugned as unconstitutional could possibly offend
the constitutional provisions pointed to by the petitioners.
Turning to Article XIV, Section 1, of the 1987 Constitution, we
note that once more petitioners have failed to demonstrate
that the statute and regulation they assail in fact clash with that
provision. On the contrary we may note - in anticipation of
discussion infra — that the statute and the regulation which
petitioners attack are in fact designed to promote "quality
education" at the level of professional schools. When one reads
Section 1 in relation to Section 5 (3) of Article XIV as one must
one cannot but note that the latter phrase of Section 1 is not to
be read with absolute literalness. The State is not really
enjoined to take appropriate steps to make quality education
"accessible to all who might for any number of reasons wish to
enroll in a professional school but rather merely to make such
education accessible to all who qualify under "fair, reasonable
and equitable admission and academic requirements."
2. In the trial court, petitioners had made the argument that
Section 5 (a) and (f) of Republic Act No. 2382, as amended,
offend against the constitutional principle which forbids the
undue delegation of legislative power, by failing to establish the
necessary standard to be followed by the delegate, the Board of
Medical Education. The general principle of non-delegation of
legislative power, which both flows from the reinforces the
more fundamental rule of the separation and allocation of
powers among the three great departments of government, 1
must be applied with circumspection in respect of statutes
which like the Medical Act of 1959, deal with subjects as
obviously complex and technical as medical education and the
practice of medicine in our present day world. Mr. Justice Laurel
stressed this point 47 years ago in Pangasinan Transportation
Co., Inc. v. The Public Service Commission: 2
"One thing, however, is apparent in the development of the
principle of separation of powers and that is that the maxim of
delegatus non potest delegare or delegati potestas non potest
delegare, adopted this practice (Delegibus et Consuetudiniis
Anglia edited by G.E. Woodbine, Yale University Press, 1922,
Vol. 2, p. 167) but which is also recognized in principle in the
Roman Law (d.17.18,3) has been made to adapt itself to the
complexities of modern government, giving rise to the
adoption, within certain limits, of the principle of ‘subordinate
legislation,’ not only in the United States and England but in
practically all modern governments. (People v. Rosenthal and
Osmena [68 Phil. 318, 1939]. Accordingly, with the growing
complexity of modern life, the multiplication of the subjects of
governmental regulation, and the increased difficulty of
administering the laws, there is a constantly growing tendency
toward the delegation of greater power by the legislature, and
toward the approval of the practice by the courts." 3
The standards set for subordinate legislation in the exercise of
rule making authority by an administrative agency like the
Board of Medical Education are necessarily broad and highly
abstract. As explained by then Mr. Justice Fernando in Edu v.
Ericta 4 —
"The standard may be either expressed or implied. If the
former, the non-delegation objection is easily met. The standard
though does not have to be spelled out specifically. It could be
implied from the policy and purpose of the act considered as a
whole. In the Reflector Law, clearly the legislative objective is
public safety. What is sought to be attained as in Calalang v.
Williams is ‘safe transit upon the roads.’" 5
We believe and so hold that the necessary standards are set
forth in Section 1 of the 1959 Medical Act: "the standardization
and regulation of medical education" and in Section 5 (a) and 7
of the same Act, the body of the statute itself, and that these
considered together are sufficient compliance with the
requirements of the non-delegation principle.
3. The petitioners also urge that the NMAT prescribed in MECS
Order No. 52, s. 1985, is an "unfair, unreasonable and
inequitable requirement," which results in a denial of due
process. Again, petitioners have failed to specify just what
factors or features of the NMAT render it "unfair" and
"unreasonable" or "inequitable." They appear to suggest that
passing the NMAT is an unnecessary requirement when added
on top of the admission requirements set out in Section 7 of the
Medical Act of 1959, and other admission requirements
established by internal regulations of the various medical
schools, public or private. Petitioners arguments thus appear to
relate to utility and wisdom or desirability of the NMAT
requirement. But constitutionality is essentially a question of
power or authority: this Court has neither commission or
competence to pass upon questions of the desirability or
wisdom or utility of legislation or administrative regulation.
Those questions must be addressed to the political departments
of the government not to the courts.
There is another reason why the petitioners’ arguments must
fail: the legislative and administrative provisions impugned by
them constitute, to the mind of the Court, a valid exercise of the
police power of the state. The police power, it is commonplace
learning, is the pervasive and non-waivable power and authority
of the sovereign to secure and promote all the important
interests and needs — in a word, the public order — of the
general community. 6 An important component of that public
order is the health and physical safety and well being of the
population, the securing of which no one can deny is a
legitimate objective of governmental effort and regulation. 7
Perhaps the only issue that needs some consideration is
whether there is some reasonable relation between the
prescribing of passing the NMAT as a condition for admission to
medical school on the one hand, and the securing of the health
and safety of the general community, on the other hand. This
question is perhaps most usefully approached by recalling that
the regulation of the practice of medicine in all its branches has
long been recognized as a reasonable method of protecting the
health and safety of the public. 8 That the power to regulate
and control the practice of medicine includes the power to
regulate admission to the ranks of those authorized to practice
medicine, is also well recognized. Thus, legislation and
administrative regulations requiring those who wish to practice
medicine first to take and pass medical board examinations
have long ago been recognized as valid exercises of
governmental power. 9 Similarly, the establishment of
minimum medical educational requirements — i.e., the
completion of prescribed courses in a recognized medical school
— for admission to the medical profession, has also been
sustained as a legitimate exercise of the regulatory authority of
the state. 10 What we have before us in the instant case is
closely related; the regulation of access to medical schools.
MECS Order No. 52, s. 1985, as noted earlier, articulates the
rationale of regulation of this type: the improvement of the
professional and technical quality of the graduates of medical
schools, by upgrading the quality of those admitted to the
student body of the medical schools. That upgrading is sought
by selectivity in the process of admission, selectivity consisting,
among other things, of limiting admission to those who exhibit
in the required degree the aptitude for medical studies and
eventually for medical practice. The need to maintain, and the
difficulties of maintaining, high standards in our professional
schools in general, and medical schools in particular, in the
current stage of our social and economic development, are
widely known.
We believe that the government is entitled to prescribe an
admission test like the NMAT as a means for achieving its stated
objective of "upgrading the selection of applicants into [our]
medical schools" and of "improv[ing] the quality of medical
education in the country." Given the widespread use today of
such admission tests in, for instance, medical schools in the
United States of America (the Medical College Admission Test
[MCAT] 11 and quite probably in other countries with far more
developed educational resources than our own, and taking into
account the failure or inability of the petitioners to even
attempt to prove otherwise, we are entitled to hold that the
NMAT is reasonably related to the securing of the ultimate end
of legislation and regulation in this area. That end, it is useful to
recall, is the protection of the public from the potentially deadly
effects of incompetence and ignorance in those who would
undertake to treat our bodies and minds for disease or trauma.
4. Petitioners have contended, finally, that MECS Order No. 52,
s. 1985, is in conflict with the equal protection clause of the
Constitution. More specifically, petitioners assert that portion of
the MECS Order which provides that.
"the cutoff score for the successful applicants, based on the
scores on the NMAT, shall be determined every year by the
Board of Medical Education after consultation with the
Association of Philippine Medical Colleges." (Emphasis
supplied).
infringes the requirements of equal protection. They assert, in
other words, that students seeking admission during a given
school year. e.g., 1987-1988, when subjected to a different
cutoff score than that established for an, e.g., earlier school
year, are discriminated against and that this renders the MECS
Order "arbitrary and capricious." The force of this argument is
more apparent than real. Different cutoff scores for different
school years may be dictated by differing conditions obtaining
during those years. Thus, the appropriate cutoff score for a
given year may be a function of such factors as the number of
students who have reached the cutoff score established the
preceding year; the number of places available in medical
schools during the current year; the average score attained
during the current year; the level of difficulty of the test given
during the current year, and so forth. To establish a permanent
and immutable cutoff score regardless of changes in
circumstances from year to year, may well result in an
unreasonable rigidity. The above language in MECS Order No.
52, far from being arbitrary or capricious, leaves the Board of
Medical Education with the measure of flexibility needed to
meet circumstances as they change.
We conclude that prescribing the NMAT and requiring certain
minimum scores therein as a condition for admission to medical
schools in the Philippines, do not constitute an unconstitutional
imposition.
WHEREFORE, the Petition for Certiorari is DISMISSED and the
Order of the respondent trial court denying the petition for a
writ of preliminary injunction is AFFIRMED. Costs against
petitioners.
SO ORDERED.