Republic

SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. L-45685

November 16, 1937

THE PEOPLE OF THE PHILIPPINE ISLANDS

and HONGKONG & SHANGHAI BANKING
CORPORATION,petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First
Instance of Manila, and MARIANO CU
UNJIENG, respondents.
Office of the Solicitor General Tuason and City
Fiscal
Diaz
for
the
Government.
De Witt, Perkins and Ponce Enrile for the Hongkong
and
Shanghai
Banking
Corporation.
Vicente J. Francisco, Feria and La O, Orense and
Belmonte, and Gibbs and McDonough for
respondent
Cu
Unjieng.
No appearance for respondent Judge.

LAUREL, J.:
This is an original action instituted in this court on
August 19, 1937, for the issuance of the writ
of certiorari and of prohibition to the Court of First
Instance of Manila so that this court may review
the actuations of the aforesaid Court of First
Instance in criminal case No. 42649 entitled "The
People of the Philippine Islands vs. Mariano Cu
Unjieng, et al.", more particularly the application of
the defendant Mariano Cu Unjieng therein for
probation under the provisions of Act No. 4221,
and thereafter prohibit the said Court of First
Instance from taking any further action or
entertaining further the aforementioned application
for probation, to the end that the defendant
Mariano Cu Unjieng may be forthwith committed to
prison in accordance with the final judgment of
conviction rendered by this court in said case (G.
R. No. 41200). 1
Petitioners herein, the People of the Philippine and
the Hongkong and Shanghai Banking Corporation,
are respectively the plaintiff and the offended
party, and the respondent herein Mariano Cu
Unjieng is one of the defendants, in the criminal
case entitled "The People of the Philippine Islands
vs. Mariano Cu Unjieng, et al.", criminal case No.

42649 of the Court of First Instance of Manila and

G.R. No. 41200 of this court. Respondent herein,
Hon. Jose O. Vera, is the Judge ad interim of the
seventh branch of the Court of First Instance of
Manila, who heard the application of the defendant
Mariano Cu Unjieng for probation in the aforesaid
criminal case.
The information in the aforesaid criminal case was
filed with the Court of First Instance of Manila on
October 15, 1931, petitioner herein Hongkong and
Shanghai Banking Corporation intervening in the
case as private prosecutor. After a protracted trial
unparalleled
in
the
annals
of
Philippine
jurisprudence both in the length of time spent by
the court as well as in the volume in the testimony
and the bulk of the exhibits presented, the Court of
First Instance of Manila, on January 8, 1934,
rendered a judgment of conviction sentencing the
defendant Mariano Cu Unjieng to indeterminate
penalty ranging from four years and two months of
prision correccional to eight years of prision mayor,
to pay the costs and with reservation of civil action
to the offended party, the Hongkong and Shanghai
Banking Corporation. Upon appeal, the court, on
March 26, 1935, modified the sentence to an
indeterminate penalty of from five years and six
months of prision correccional to seven years, six
months and twenty-seven days of prision mayor,
but affirmed the judgment in all other respects.
Mariano
Cu
Unjieng
filed
a
motion
for
reconsideration and four successive motions for
new trial which were denied on December 17,
1935, and final judgment was accordingly entered
on December 18, 1935. The defendant thereupon
sought to have the case elevated on certiorari to
the Supreme Court of the United States but the
latter denied the petition forcertiorari in
November, 1936. This court, on
November
24, 1936, denied the petition subsequently filed by
the defendant for leave to file a second alternative
motion for reconsideration or new trial and
thereafter remanded the case to the court of origin
for execution of the judgment.
The instant proceedings have to do with the
application for probation filed by the herein
respondent Mariano Cu Unjieng on
November 27, 1936, before the trial court, under
the provisions of Act No. 4221 of the defunct
Philippine Legislature. Herein respondent Mariano
Cu Unjieng states in his petition, inter alia, that he
is innocent of the crime of which he was convicted,
that he has no criminal record and that he would
observe good conduct in the future. The Court of
First Instance of Manila, Judge Pedro Tuason

presiding, referred the application for probation of

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

enteramente differentes, en menoscabo del

interes publico que demanda el respeto de
las leyes y del veredicto judicial.
On July 3, 1937, counsel for the herein respondent
Mariano Cu Unjieng filed an exception to the
resolution denying probation and a notice of
intention to file a motion for reconsideration. An
alternative motion for reconsideration or new trial
was filed by counsel on July 13, 1937. This was
supplemented by an additional motion for
reconsideration submitted on July 14, 1937. The
aforesaid motions were set for hearing on July 31,
1937, but said hearing was postponed at the
petition of counsel for the respondent Mariano Cu
Unjieng because a motion for leave to intervene in
the case as amici curiae signed by thirty-three
(thirty-four) attorneys had just been filed with the
trial court. Attorney Eulalio Chaves whose
signature appears in the aforesaid motion
subsequently filed a petition for leave to withdraw
his appearance as amicus curiae on the ground
that the motion for leave to intervene as amici
curiae was circulated at a banquet given by counsel
for Mariano Cu Unjieng on the evening of July 30,
1937, and that he signed the same "without
mature deliberation and purely as a matter of
courtesy to the person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila
filed a motion with the trial court for the issuance
of an order of execution of the judgment of this
court in said case and forthwith to commit the
herein respondent Mariano Cu Unjieng to jail in
obedience to said judgment.
On August 7, 1937, the private prosecution filed its
opposition to the motion for leave to intervene
as amici curiaeaforementioned, asking that a date
be set for a hearing of the same and that, at all
events, said motion should be denied with respect
to certain attorneys signing the same who were
members of the legal staff of the several counsel
for Mariano Cu Unjieng. On August 10, 1937,
herein respondent Judge Jose O. Vera issued an
order requiring all parties including the movants for
intervention as amici curiae to appear before the
court on August 14, 1937. On the last-mentioned
date, the Fiscal of the City of Manila moved for the
hearing of his motion for execution of judgment in
preference to the motion for leave to intervene
as amici curiae but, upon objection of counsel for
Mariano Cu Unjieng, he moved for the
postponement of the hearing of both motions. The
respondent judge thereupon set the hearing of the
motion for execution on August 21, 1937, but

proceeded to consider the motion for leave to

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

it has provided for the salary of a probation

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

In a supplementary petition filed on September 9,

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

may intervene in probation proceedings and may

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

submitted to and pending resolution by the

trial court, the present action would not lie
because the resolution of the trial court
denying probation is appealable; for
although the Probation Law does not
specifically provide that an applicant for
probation may appeal from a resolution of
the Court of First Instance denying
probation, still it is a general rule in this
jurisdiction that a final order, resolution or
decision of an inferior court is appealable to
the superior court.
(7) That the resolution of the trial court
denying probation of herein respondent
Mariano Cu Unjieng being appealable, the
same had not become final and executory
for the reason that the said respondent had
filed
an
alternative
motion
for
reconsideration and new trial within the
requisite period of fifteen days, which
motion the trial court was able to resolve in
view of the restraining order improvidently
and
erroneously
issued
by
this
court.lawphi1.net
(8) That the Fiscal of the City of Manila had
by implication admitted that the resolution
of the trial court denying probation is not
final and unappealable when he presented
his answer to the motion for reconsideration
and agreed to the postponement of the
hearing of the said motion.
(9) That under the supposition that the
order of the trial court denying probation is
not appealable, it is incumbent upon the
accused to file an action for the issuance of
the writ ofcertiorari with mandamus, it
appearing that the trial court, although it
believed that the accused was entitled to
probation, nevertheless denied probation for
fear of criticism because the accused is a
rich man; and that, before a petition
for certiorari grounded on an irregular
exercise of jurisdiction by the trial court
could lie, it is incumbent upon the petitioner
to file a motion for reconsideration
specifying the error committed so that the
trial court could have an opportunity to
correct or cure the same.
(10) That on hypothesis that the resolution
of this court is not appealable, the trial
court retains its jurisdiction within a
reasonable time to correct or modify it in

accordance with law and justice; that this

power to alter or modify an order or
resolution is inherent in the courts and may
be exercise either motu proprio or upon
petition of the proper party, the petition in
the latter case taking the form of a motion
for reconsideration.
(11) That on the hypothesis that the
resolution of the trial court is appealable as
respondent allege, said court cannot order
execution of the same while it is on appeal,
for then the appeal would not be availing
because the doors of probation will be
closed from the moment the accused
commences to serve his sentence (Act No.
4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d],
827).
In their memorandums filed on October 23, 1937,
counsel for the respondents maintain that Act No.
4221 is constitutional because, contrary to the
allegations of the petitioners, it does not constitute
an undue delegation of legislative power, does not
infringe the equal protection clause of the
Constitution, and does not encroach upon the
pardoning power of the Executive. In an additional
memorandum filed on the same date, counsel for
the respondents reiterate the view that section 11
of Act No. 4221 is free from constitutional
objections and contend, in addition, that the
private prosecution may not intervene in probation
proceedings, much less question the validity of Act
No. 4221; that both the City Fiscal and the
Solicitor-General are estopped from questioning
the validity of the Act; that the validity of Act
cannot be attacked for the first time before this
court; that probation in unavailable; and that, in
any event, section 11 of the Act No. 4221 is
separable from the rest of the Act. The last
memorandum for the respondent Mariano Cu
Unjieng was denied for having been filed out of
time but was admitted by resolution of this court
and filed anew on
November 5, 1937. This
memorandum elaborates on some of the points
raised by the respondents and refutes those
brought up by the petitioners.
In the scrutiny of the pleadings and examination of
the various aspects of the present case, we noted
that the court below, in passing upon the merits of
the application of the respondent Mariano Cu
Unjieng and in denying said application assumed
the task not only of considering the merits of the
application, but of passing upon the culpability of
the
applicant,
notwithstanding
the
final

pronouncement of guilt by this court. (G.R. No.

41200.) Probation implies guilt be final judgment.
While a probation case may look into the
circumstances attending the commission of the
offense, this does not authorize it to reverse the
findings and conclusive of this court, either directly
or indirectly, especially wherefrom its own
admission reliance was merely had on the printed
briefs, averments, and pleadings of the parties. As
already observed by this court in Shioji vs.
Harvey ([1922], 43 Phil., 333, 337), and reiterated
in subsequent cases, "if each and every Court of
First Instance could enjoy the privilege of
overruling decisions of the Supreme Court, there
would be no end to litigation, and judicial chaos
would result." A becoming modesty of inferior
courts demands conscious realization of the
position that they occupy in the interrelation and
operation of the intergrated judicial system of the
nation.

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.)

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
forcertiorari 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:

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 inmandamus proceedings (see, also, 12
C. J., p. 783); and in Government of the Philippine

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

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.

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 wellsettled 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, CadwalladerGibson 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 wellsettled 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 AttorneyGeneral, 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.

10

Ann., 1679; 18 So., 746; 47 L. R. A., 512).

These decisions do not forbid a district
attorney to plead that a statute is
unconstitutional if he finds if in conflict with
one which it is his duty to enforce. In
State ex rel. Hall, District Attorney, vs.
Judge, etc., the ruling was the judge should
not, merely because he believed a certain
statute to be unconstitutional forbid the
district attorney to file a bill of information
charging a person with a violation of the
statute. In other words, a judge should not
judicially declare a statute unconstitutional
until the question of constitutionality is
tendered for decision, and unless it must be
decided in order to determine the right of a
party
litigant.
Stateex
rel.
Nicholls,
Governor, etc., is authority for the
proposition merely that an officer on whom
a statute imposes the duty of enforcing its
provisions cannot avoid the duty upon the
ground that he considers the statute
unconstitutional, and hence in enforcing the
statute he is immune from responsibility if
the statute be unconstitutional. State ex rel.
Banking Co., etc., is authority for the
proposition merely that executive officers,
e.g., the state auditor and state treasurer,
should not decline to perform ministerial
duties imposed upon them by a statute, on
the ground that they believe the statute is
unconstitutional.
It is the duty of a district attorney to
enforce the criminal laws of the state, and,
above all, to support the Constitution of the
state. If, in the performance of his duty he
finds two statutes in conflict with each
other, or one which repeals another, and if,
in his judgment, one of the two statutes is
unconstitutional, it is his duty to enforce the
other; and, in order to do so, he is
compelled to submit to the court, by way of
a plea, that one of the statutes is
unconstitutional. If it were not so, the
power of the Legislature would be free from
constitutional limitations in the enactment
of criminal laws.
The respondents do not seem to doubt seriously
the correctness of the general proposition that the
state may impugn the validity of its laws. They
have not cited any authority running clearly in the
opposite direction. In fact, they appear to have
proceeded on the assumption that the rule as
stated is sound but that it has no application in the

present case, nor may it be invoked by the City

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

11

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

12

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

13

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

14

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

15

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.)

16

Other cases, however, hold contra. (Nix vs. James

[1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs.
Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs.
United States [1926; C. C. A. 4th], 14]) [2d], 5;
Murphy vs. States [1926], 171 Ark., 620; 286 S.
W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18
Cal. App., 166; 122 Pac., 831; Re Nachnaber
[1928], 89 Cal. App., 530; 265 Pac., 392; Ex
parte De Voe [1931], 114 Cal. App., 730; 300 Pac.,
874; People vs. Patrick [1897], 118 Cal., 332; 50
Pac., 425; Martin vs. People [1917], 69 Colo., 60;
168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn.,
50; 91 A., 369, 370, 371; Williams vs. State
[1926], 162 Ga., 327; 133 S. E., 843; People vs.
Heise [1913], 257 Ill., 443; 100 N. E., 1000;
Parker vs. State [1893], 135 Ind., 534; 35 N. E.,
179; 23 L. R. A., 859; St. Hillarie, Petitioner
[1906], 101 Me., 522; 64 Atl., 882; People vs.
Stickle [1909], 156 Mich., 557; 121 N. W., 497;
State vs. Fjolander [1914], 125 Minn., 529;
State ex rel. Bottomnly vs. District Court [1925],
73 Mont., 541; 237 Pac., 525; State vs. Everitt
[1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A.
[N. S.], 848; State ex rel. Buckley vs. Drew
[1909], 75 N. H., 402; 74 Atl., 875; State vs.
Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex
parteBates [1915], 20 N. M., 542; L. R. A., 1916 A.
1285; 151 Pac., 698; People vs. ex rel. Forsyth vs.
Court of Session [1894], 141 N. Y., 288; 23 L. R.
A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675;
People ex rel. Sullivan vs. Flynn [1907], 55 Misc.,
639; 106 N. Y. Supp., 928; People vs. Goodrich
[1914], 149 N. Y. Supp., 406; Moore vs. Thorn
[1935], 245 App. Div., 180; 281 N. Y. Supp.,
49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C,
1169; 149 N. W., 568; Ex parte Eaton [1925], 29
Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal
[1918], 108 S. C., 455; 95 S. E., 69; State vs.
Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.],
112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs.
States [1854],34 Tenn., 232; Woods vs. State
[1814], 130 Tenn., 100; 169 S. W., 558; Baker vs.
State [1814], 130 Tenn., 100; 169 S. W., 558;
Baker vs. State [1913],70 Tex., Crim. Rep., 618;
158 S. W., 998; Cook vs. State [1914], 73 Tex.
Crim. Rep., 548; 165 S. W., 573; King vs. State
[1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890;
Clare vs. State [1932], 122 Tex. Crim. Rep., 394;
162 S. W., 890; Clare vs. State [1932], 122 Tex.
Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall
[1927], 100 Vt., 197; 136 A., 24; Richardson vs.
Com. [1921], 131 Va., 802; 109 S.E., 460; State
vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42;
State ex rel. Tingstand vs. Starwich [1922], 119
Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.)
We elect to follow this long catena of authorities
holding that the courts may be legally authorized

by the legislature to suspend sentence by the

establishment of a system of probation however
characterized. State ex rel. Tingstand vs. Starwich
([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L.
R., 393), deserved particular mention. In that
case, a statute enacted in 1921 which provided for
the suspension of the execution of a sentence until
otherwise ordered by the court, and required that
the convicted person be placed under the charge of
a parole or peace officer during the term of such
suspension, on such terms as the court may
determine, was held constitutional and as not
giving the court a power in violation of the
constitutional provision vesting the pardoning
power in the chief executive of the state. (Vide,
also, Re Giannini [1912], 18 Cal App., 166; 122
Pac., 831.)
Probation and pardon are not coterminous; nor are
they the same. They are actually district and
different from each other, both in origin and in
nature. In People ex rel. Forsyth vs. Court of
Sessions ([1894], 141 N. Y., 288, 294; 36 N. E.,
386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep.,
675), the Court of Appeals of New York said:
. . . The power to suspend sentence and the
power to grant reprieves and pardons, as
understood when the constitution was
adopted, are totally distinct and different in
their nature. The former was always a part
of the judicial power; the latter was always
a part of the executive power. The
suspension
of
the
sentence
simply
postpones the judgment of the court
temporarily
or
indefinitely,
but
the
conviction and liability following it, and the
civil disabilities, remain and become
operative when judgment is rendered. A
pardon reaches both the punishment
prescribed for the offense and the guilt of
the offender. It releases the punishment,
and blots out of existence the guilt, so that
in the eye of the law, the offender is as
innocent as if he had never committed the
offense. It removes the penalties and
disabilities, and restores him to all his civil
rights. It makes him, as it were, a new
man, and gives him a new credit and
capacity. (Ex 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.)

17

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

18

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.

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.)

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:

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.)

. . . . 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).

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?

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

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

19

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 oftquoted 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.

20

The challenged section of Act No. 4221 in section

11 which reads as follows:
This Act shall apply only in those provinces
in which the respective provincial boards
have provided for the salary of a probation
officer at rates not lower than those now
provided
for
provincial
fiscals.
Said
probation officer shall be appointed by the
Secretary of Justice and shall be subject to
the direction of the Probation Office.
(Emphasis ours.)
In testing whether a statute constitute an undue
delegation of legislative power or not, it is usual to
inquire whether the statute was complete in all its
terms and provisions when it left the hands of the
legislature so that nothing was left to the judgment
of any other appointee or delegate of the
legislature. (6 R. C. L., p. 165.) In the United
States vs. Ang Tang Ho ([1922], 43 Phil., 1), this
court adhered to the foregoing rule when it held an
act of the legislature void in so far as it undertook
to authorize the Governor-General, in his
discretion, to issue a proclamation fixing the price
of rice and to make the sale of it in violation of the
proclamation a crime. (See and cf. Compaia
General de Tabacos vs. Board of Public Utility
Commissioners [1916], 34 Phil., 136.) The general
rule, however, is limited by another rule that to a
certain extent matters of detail may be left to be
filled in by rules and regulations to be adopted or
promulgated
by
executive
officers
and
administrative boards. (6 R. C. L., pp. 177-179.)
For the purpose of Probation Act, the provincial
boards may be regarded as administrative bodies
endowed with power to determine when the Act
should take effect in their respective provinces.
They are the agents or delegates of the legislature
in this respect. The rules governing delegation of
legislative power to administrative and executive
officers are applicable or are at least indicative of
the rule which should be here adopted. An
examination of a variety of cases on delegation of
power to administrative bodies will show that
the ratio decidendiis at variance but, it can be
broadly asserted that the rationale revolves around
the presence or absence of a standard or rule of
action or the sufficiency thereof in the
statute, to aid the delegate in exercising the
granted discretion. In some cases, it is held that
the standard is sufficient; in others that is
insufficient; and in still others that it is entirely
lacking. As a rule, an act of the legislature is
incomplete and hence invalid if it does not lay

down any rule or definite standard by which the

administrative officer or board may be guided in
the exercise of the discretionary powers delegated
to it. (See Schecter vs. United States [1925], 295
U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837;
97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil
Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107
A.L.R., 1500 and cases cited. See also R. C. L., title
"Constitutional Law", sec 174.) In the case at bar,
what rules are to guide the provincial boards in the
exercise of their discretionary power to determine
whether or not the Probation Act shall apply in
their respective provinces? What standards are
fixed by the Act? We do not find any and none has
been pointed to us by the respondents. The
probation Act does not, by the force of any of its
provisions, fix and impose upon the provincial
boards any standard or guide in the exercise of
their discretionary power. What is granted, if we
may use the language of Justice Cardozo in the
recent case of Schecter, supra, is a "roving
commission" which enables the provincial boards to
exercise arbitrary discretion. By section 11 if the
Act, the legislature does not seemingly on its own
authority extend the benefits of the Probation Act
to the provinces but in reality leaves the entire
matter for the various provincial boards to
determine. In other words, the provincial boards of
the various provinces are to determine for
themselves, whether the Probation Law shall apply
to their provinces or not at all. The applicability
and application of the Probation Act are entirely
placed in the hands of the provincial boards. If the
provincial board does not wish to have the Act
applied in its province, all that it has to do is to
decline to appropriate the needed amount for the
salary of a probation officer. The plain language of
the Act is not susceptible of any other
interpretation. This, to our minds, is a virtual
surrender of legislative power to the provincial
boards.
"The true distinction", says Judge Ranney, "is
between the delegation of power to make the law,
which necessarily involves a discretion as to what it
shall be, and conferring an authority or discretion
as to its execution, to be exercised under and in
pursuance of the law. The first cannot be done; to
the latter no valid objection can be made."
(Cincinnati, W. & Z. R. Co. vs. Clinton County
Comrs. [1852]; 1 Ohio St., 77, 88. See also,
Sutherland on Statutory Construction, sec 68.) To
the same effect are the decision of this court
in Municipality of Cardona vs. Municipality of
Binangonan ([1917], 36 Phil., 547); Rubi vs.
Provincial Board of Mindoro ([1919],39 Phil., 660)

21

andCruz vs. Youngberg ([1931], 56 Phil., 234). In

the first of these cases, this court sustained the
validity of the law conferring upon the GovernorGeneral authority to adjust provincial and
municipal boundaries. In the second case, this
court held it lawful for the legislature to direct nonChristian 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. 569579; 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

22

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.

23

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 selfgovernment 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

24

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 timehonored limitations is that, subject to certain
exceptions, legislative power shall not be
delegated.

[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.)

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.

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

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

25

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.

26

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

27

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
disreputable or harmful character;

of

(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.

28

But the probation officers and the administrative

personnel referred to in the foregoing section are
clearly not those probation officers required to be
appointed for the provinces under section 11. It
may be said, reddendo singula singulis, that the
probation officers referred to in section 10 abovequoted are to act as such, not in the various
provinces, but in the central office known as the
Probation Office established in the Department of
Justice, under the supervision of the Chief
Probation Officer. When the law provides that "the
probation officer" shall investigate and make
reports to the court (secs. 1 and 4); that "the
probation officer" shall supervise and visit the
probationer (sec. 2; sec. 6, par. d); that the
probationer shall report to the "probationer officer"
(sec. 3, par. c.), shall allow "the probationer
officer" to visit him (sec. 3, par. d), shall truthfully
answer any reasonable inquiries on the part of "the
probation officer" concerning his conduct or
condition (sec. 3, par. 4); that the court shall
notify "the probation officer" in writing of the
period and terms of probation (sec. 3, last par.), it
means the probation officer who is in charge of a
particular probationer in a particular province. It
never could have been intention of the legislature,
for instance, to require the probationer in Batanes,
to report to a probationer officer in the City of
Manila, or to require a probation officer in Manila to
visit the probationer in the said province of
Batanes, to place him under his care, to supervise
his conduct, to instruct him concerning the
conditions of his probation or to perform such other
functions as are assigned to him by law.
That under section 10 the Secretary of Justice may
appoint as many probation officers as there are
provinces or groups of provinces is, of course
possible. But this would be arguing on what the law
may be or should be and not on what the law is.
Between is and ought there is a far cry. The
wisdom and propriety of legislation is not for us to
pass upon. We may think a law better otherwise
than it is. But much as has been said regarding
progressive interpretation and judicial legislation
we decline to amend the law. We are not permitted
to read into the law matters and provisions which
are not there. Not for any purpose not even to
save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy
of the law is not to make the Insular Government
defray the salaries of probation officers in the
provinces but to make the provinces defray them
should they desire to have the Probation Act apply
thereto. The sum of P50,000, appropriated "to

carry out the purposes of this Act", is to be applied,

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

29

In arriving at this conclusion, we have endeavored

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

Act No. 4221 is hereby declared unconstitutional

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

of

the

Philippines
COURT

EN BANC
G.R. No. L-7995

May 31, 1957

LAO H. ICHONG, in his own behalf and in

behalf of other alien residents, corporations
and partnerships adversely affected. by
Republic
Act
No.
1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and
MARCELINO SARMIENTO, City Treasurer of
Manila,respondents.
Ozaeta,
Lichauco
and
Picazo
and
Sycip,
Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and
Solicitor Pacifico P. de Castro for respondent
Secretary
of
Finance.
City Fiscal Eugenio Angeles and Assistant City
Fiscal Eulogio S. Serrano for respondent City
Treasurer.
Dionisio
Reyes
as
Amicus
Curiae.
Marcial
G.
Mendiola
as
Amicus
Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, J.:
I. The case and issue, in general
This Court has before it the delicate task of passing
upon the validity and constitutionality of a
legislative enactment, fundamental and farreaching in significance. The enactment poses
questions of due process, police power and equal
protection of the laws. It also poses an important
issue of fact, that is whether the conditions which
the disputed law purports to remedy really or
actually exist. Admittedly springing from a deep,
militant, and positive nationalistic impulse, the law
purports to protect citizen and country from the
alien retailer. Through it, and within the field of

30

economy it regulates, Congress attempts to

translate national
aspirations
for
economic
independence and national security, rooted in the
drive and urge for national survival and welfare,
into a concrete and tangible measures designed to
free the national retailer from the competing
dominance of the alien, so that the country and the
nation may be free from a supposed economic
dependence and bondage. Do the facts and
circumstances justify the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to
Regulate the Retail Business." In effect it
nationalizes the retail trade business. The main
provisions of the Act are: (1) a prohibition against
persons, not citizens of the Philippines, and against
associations, partnerships, or corporations the
capital of which are not wholly owned by citizens of
the Philippines, from engaging directly or indirectly
in the retail trade; (2) an exception from the above
prohibition in favor of aliens actually engaged in
said business on May 15, 1954, who are allowed to
continue to engaged therein, unless their licenses
are forfeited in accordance with the law, until their
death or voluntary retirement in case of natural
persons, and for ten years after the approval of the
Act or until the expiration of term in case of
juridical persons; (3) an exception therefrom in
favor of citizens and juridical entities of the United
States; (4) a provision for the forfeiture of licenses
(to engage in the retail business) for violation of
the laws on nationalization, control weights and
measures and labor and other laws relating to
trade, commerce and industry; (5) a prohibition
against the establishment or opening by aliens
actually engaged in the retail business of additional
stores or branches of retail business, (6) a
provision requiring aliens actually engaged in the
retail business to present for registration with the
proper authorities a verified statement concerning
their businesses, giving, among other matters, the
nature of the business, their assets and liabilities
and their offices and principal offices of judicial
entities; and (7) a provision allowing the heirs of
aliens now engaged in the retail business who die,
to continue such business for a period of six
months for purposes of liquidation.
III. Grounds upon which petition is based-Answer
thereto
Petitioner, for and in his own behalf and on behalf
of other alien residents corporations and
partnerships adversely affected by the provisions

of Republic Act. No. 1180, brought this action to

obtain a judicial declaration that said Act is
unconstitutional, and to enjoin the Secretary of
Finance and all other persons acting under him,
particularly city and municipal treasurers, from
enforcing its provisions. Petitioner attacks the
constitutionality of the Act, contending that: (1) it
denies to alien residents the equal protection of the
laws and deprives of their liberty and property
without due process of law ; (2) the subject of the
Act is not expressed or comprehended in the title
thereof; (3) the Act violates international and
treaty obligations of the Republic of the Philippines;
(4) the provisions of the Act against the
transmission by aliens of their retail business thru
hereditary succession, and those requiring 100%
Filipino capitalization for a corporation or entity to
entitle it to engage in the retail business, violate
the spirit of Sections 1 and 5, Article XIII and
Section 8 of Article XIV of the Constitution.
In answer, the Solicitor-General and the Fiscal of
the City of Manila contend that: (1) the Act was
passed in the valid exercise of the police power of
the State, which exercise is authorized in the
Constitution in the interest of national economic
survival; (2) the Act has only one subject
embraced in the title; (3) no treaty or international
obligations are infringed; (4) as regards hereditary
succession, only the form is affected but the value
of the property is not impaired, and the institution
of inheritance is only of statutory origin.
IV. Preliminary consideration of legal principles
involved
a. The police power.
There is no question that the Act was approved in
the exercise of the police power, but petitioner
claims that its exercise in this instance is attended
by a violation of the constitutional requirements of
due process and equal protection of the laws. But
before proceeding to the consideration and
resolution of the ultimate issue involved, it would
be well to bear in mind certain basic and
fundamental, albeit preliminary, considerations in
the determination of the ever recurrent conflict
between police power and the guarantees of due
process and equal protection of the laws. What is
the scope of police power, and how are the due
process and equal protection clauses related to it?
What is the province and power of the legislature,
and what is the function and duty of the courts?
These consideration must be clearly and correctly
understood that their application to the facts of the

31

case may be brought forth with clarity and the

issue accordingly resolved.
It has been said the police power is so far reaching in scope, that it has become almost
impossible to limit its sweep. As it derives its
existence from the very existence of the State
itself, it does not need to be expressed or defined
in its scope; it is said to be co-extensive with selfprotection and survival, and as such it is the most
positive and active of all governmental processes,
the most essential, insistent and illimitable.
Especially is it so under a modern democratic
framework where the demands of society and of
nations have multiplied to almost unimaginable
proportions; the field and scope of police power
has become almost boundless, just as the fields of
public interest and public welfare have become
almost all-embracing and have transcended human
foresight. Otherwise stated, as we cannot foresee
the needs and demands of public interest and
welfare in this constantly changing and progressive
world, so we cannot delimit beforehand the extent
or scope of police power by which and through
which the State seeks to attain or achieve interest
or welfare. So it is that Constitutions do not define
the scope or extent of the police power of the
State; what they do is to set forth the limitations
thereof. The most important of these are the due
process clause and the equal protection clause.
b. Limitations on police power.
The basic limitations of due process and equal
protection are found in the following provisions of
our Constitution:
SECTION 1.(1) No person shall be deprived
of life, liberty or property without due
process of law, nor any person be denied
the equal protection of the laws. (Article III,
Phil. Constitution)
These constitutional guarantees which embody the
essence of individual liberty and freedom in
democracies, are not limited to citizens alone but
are admittedly universal in their application,
without regard to any differences of race, of color,
or of nationality. (Yick Wo vs. Hopkins, 30, L. ed.
220, 226.)
c. The, equal protection clause.
The equal protection of the law clause is against
undue favor and individual or class privilege, as

well as hostile discrimination or the oppression of

inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is
directed or by territory within which is to operate.
It does not demand absolute equality among
residents; it merely requires that all persons shall
be treated alike, under like circumstances and
conditions both as to privileges conferred and
liabilities enforced. The equal protection clause is
not infringed by legislation which applies only to
those persons falling within a specified class, if it
applies alike to all persons within such class, and
reasonable grounds exists for making a distinction
between those who fall within such class and those
who do not. (2 Cooley, Constitutional Limitations,
824-825.)
d. The due process clause.
The due process clause has to do with the
reasonableness of legislation enacted in pursuance
of the police power. Is there public interest, a
public purpose; is public welfare involved? Is the
Act reasonably necessary for the accomplishment
of the legislature's purpose; is it not unreasonable,
arbitrary or oppressive? Is there sufficient
foundation or reason in connection with the matter
involved; or has there not been a capricious use of
the legislative power? Can the aims conceived be
achieved by the means used, or is it not merely an
unjustified interference with private interest? These
are the questions that we ask when the due
process test is applied.
The conflict, therefore, between police power and
the guarantees of due process and equal protection
of the laws is more apparent than real. Properly
related, the power and the guarantees are
supposed to coexist. The balancing is the essence
or, shall it be said, the indispensable means for the
attainment of legitimate aspirations of any
democratic society. There can be no absolute
power, whoever exercise it, for that would be
tyranny. Yet there can neither be absolute liberty,
for that would mean license and anarchy. So the
State can deprive persons of life, liberty and
property, provided there is due process of law; and
persons may be classified into classes and groups,
provided everyone is given the equal protection of
the law. The test or standard, as always, is reason.
The police power legislation must be firmly
grounded on public interest and welfare, and a
reasonable relation must exist between purposes
and means. And if distinction and classification has
been made, there must be a reasonable basis for
said distinction.

32

e. Legislative discretion not subject to judicial

review.
Now, in this matter of equitable balancing, what is
the proper place and role of the courts? It must not
be overlooked, in the first place, that the
legislature, which is the constitutional repository of
police power and exercises the prerogative of
determining the policy of the State, is by force of
circumstances primarily the judge of necessity,
adequacy or reasonableness and wisdom, of any
law promulgated in the exercise of the police
power, or of the measures adopted to implement
the public policy or to achieve public interest. On
the other hand, courts, although zealous guardians
of individual liberty and right, have nevertheless
evinced a reluctance to interfere with the exercise
of the legislative prerogative. They have done so
early where there has been a clear, patent or
palpable arbitrary and unreasonable abuse of the
legislative prerogative. Moreover, courts are not
supposed to override legitimate policy, and courts
never inquire into the wisdom of the law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now
proceed to delve directly into the issue involved. If
the disputed legislation were merely a regulation,
as its title indicates, there would be no question
that it falls within the legitimate scope of legislative
power. But it goes further and prohibits a group of
residents, the aliens, from engaging therein. The
problem becomes more complex because its
subject is a common, trade or occupation, as old as
society itself, which from the immemorial has
always been open to residents, irrespective of race,
color or citizenship.
a. Importance of retail trade in the economy of the
nation.
In a primitive economy where families produce all
that they consume and consume all that they
produce, the dealer, of course, is unknown. But as
group life develops and families begin to live in
communities producing more than what they
consume and needing an infinite number of things
they do not produce, the dealer comes into
existence. As villages develop into big communities
and specialization in production begins, the dealer's
importance is enhanced. Under modern conditions
and standards of living, in which man's needs have
multiplied and diversified to unlimited extents and
proportions, the retailer comes as essential as the
producer, because thru him the infinite variety of

articles, goods and needed for daily life are placed

within the easy reach of consumers. Retail dealers
perform the functions of capillaries in the human
body, thru which all the needed food and supplies
are ministered to members of the communities
comprising the nation.
There cannot be any question about the
importance of the retailer in the life of the
community. He ministers to the resident's daily
needs, food in all its increasing forms, and the
various little gadgets and things needed for home
and daily life. He provides his customers around his
store with the rice or corn, the fish, the salt, the
vinegar, the spices needed for the daily cooking.
He has cloths to sell, even the needle and the
thread to sew them or darn the clothes that wear
out. The retailer, therefore, from the lowly peddler,
the owner of a small sari-sari store, to the operator
of a department store or, a supermarket is so
much a part of day-to-day existence.
b. The alien retailer's trait.
The alien retailer must have started plying his
trades in this country in the bigger centers of
population (Time there was when he was unknown
in provincial towns and villages). Slowly but
gradually be invaded towns and villages; now he
predominates in the cities and big centers of
population. He even pioneers, in far away nooks
where the beginnings of community life appear,
ministering to the daily needs of the residents and
purchasing their agricultural produce for sale in the
towns. It is an undeniable fact that in many
communities the alien has replaced the native
retailer. He has shown in this trade, industry
without limit, and the patience and forbearance of
a slave.
Derogatory epithets are hurled at him, but he
laughs these off without murmur; insults of ill-bred
and insolent neighbors and customers are made in
his face, but he heeds them not, and he forgets
and forgives. The community takes note of him, as
he appears to be harmless and extremely useful.
c. Alleged alien control and dominance.
There is a general feeling on the part of the public,
which appears to be true to fact, about the
controlling and dominant position that the alien
retailer holds in the nation's economy. Food and
other essentials, clothing, almost all articles of
daily life reach the residents mostly through him.
In big cities and centers of population he has

33

acquired not only predominance, but apparent

control over distribution of almost all kinds of
goods, such as lumber, hardware, textiles,
groceries, drugs, sugar, flour, garlic, and scores of
other goods and articles. And were it not for some
national corporations like the Naric, the Namarco,
the Facomas and the Acefa, his control over
principal foods and products would easily become
full and complete.

Others
354
...........
Filipino
..........

213,342,264 67.30

Chinese 12,087
..........

93,155,459

29.38

Others
..........

422

10,514,675

3.32

Filipino
..........

113,659

213,451,602 60.89

Chinese 16,248
..........

125,223,336 35.72

Others
..........

486

12,056,365

Filipino
.........

119,352

224,053,620 61.09

3.39

1951:

Chinese 17,429
..........

134,325,303 36.60

Others
..........

8,614,025

347

2.31

AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT
Year
Nationality
Gross Sales

Assets

1941:
Per
cent
Pesos
Distribution

1941:
106,671

113,631

1949:

The best evidence are the statistics on the retail

trade, which put down the figures in black and
white. Between the constitutional convention year
(1935), when the fear of alien domination and
control of the retail trade already filled the minds
of our leaders with fears and misgivings, and the
year of the enactment of the nationalization of the
retail
trade
act
(1954),
official
statistics
unmistakably point out to the ever-increasing
dominance and control by the alien of the retail
trade, as witness the following tables:

Filipino
..........

.49

1948: (Census)

Petitioner denies that there is alien predominance

and control in the retail trade. In one breath it is
said that the fear is unfounded and the threat is
imagined; in another, it is charged that the law is
merely the result of radicalism and pure and
unabashed nationalism. Alienage, it is said, is not
an element of control; also so many unmanageable
factors in the retail business make control virtually
impossible. The first argument which brings up an
issue of fact merits serious consideration. The
others are matters of opinion within the exclusive
competence of the legislature and beyond our
prerogative to pass upon and decide.

Year
and
No.Retailers
Pesos
Establishments
Nationality

8,761,260

200,323,138 55.82

and

Retailer's

Per
cent
Distribution

Filipino
.............................................

Item
Assets
(Pesos

1,878

174,181,924
Chinese51.74
..............................................
148,813,239 44.21
Others
...............................................
13,630,239 4.05

7,707

Chinese 15,356
...........

118,348,692 32.98

Others
1,646
............

40,187,090

Filipino
..........

208,658,946 65.05

Filipino
279,583,333
57.03
.............................................

1,878

106,156,218 33.56

Chinese41.96
205,701,134
...........................................

7,707

11.20

1947:

1947:
111,107

Chinese 13,774
...........

24,415

34

Chinese
.............................................

superiority; the alien invests more capital, buys

24,749
13,919
and sells six to seven times more, and gains much
more. The same official report, pointing out to the
known predominance of foreign elements in the
retail trade, remarks that the Filipino retailers were
largely engaged
in minor retailer enterprises. As
1,878
4,111
observed by respondents, the native investment is
thinly spread, and the Filipino retailer is practically
helpless 24,398
in matters of capital, credit, price and
7,707
supply.

Others
..............................................

24,916
23,686and threat, subject of apprehension
d. Alien control
in Constitutional convention.

Others
..............................................
1948:

(Census)
Filipino
.............................................

1949:
Filipino
.............................................
Chinese
..............................................
Others
..............................................
1951:
Filipino
.............................................
Chinese
.............................................
Others
...............................................
(Estimated Assets and Gross Sales of Retail
Establishments, By Year and Nationality of
Owners, Benchmark: 1948 Census, issued
by the Bureau of Census and Statistics,
Department of Commerce and Industry; pp.
18-19 of Answer.)
The above statistics do not include corporations
and partnerships, while the figures on Filipino
establishments already include mere market
vendors, whose capital is necessarily small..
The above figures reveal that in percentage
distribution of assests and gross sales, alien
participation has steadily increased during the
years. It is true, of course, that Filipinos have the
edge in the number of retailers, but aliens more
than make up for the numerical gap through their
assests and gross sales which average between six
and seven times those of the very many Filipino
retailers. Numbers in retailers, here, do not imply

It is this domination and control, which we believe

has been4,069
sufficiently shown to exist, that is the
1,878
legislature's target in the enactment of the
disputed nationalization would never have been
adopted.24,152
The framers of our Constitution also
7,707
believed in the existence of this alien dominance
and control when they approved a resolution
categorically
declaring among other things, that "it
24,807
20,737
is the sense of the Convention that the public
interest requires the nationalization of the retail
trade; . . . ." (II Aruego, The Framing of the
Philippine Constitution, 662-663, quoted on page
1,877
3,905
67 of Petitioner.)
That was twenty-two years ago;
and the events since then have not been either
pleasant or comforting. Dean Sinco of the
7,707
33,207
University
of the Philippines College of Law,
commenting on the patrimony clause of the
Preamble opines that the fathers of our
24,824
22,033
Constitution were merely translating the general
preoccupation of Filipinos "of the dangers from
alien interests that had already brought under their
control the commercial and other economic
activities of the country" (Sinco, Phil. Political Law,
10th ed., p. 114); and analyzing the concern of the
members of the constitutional convention for the
economic life of the citizens, in connection with the
nationalistic provisions of the Constitution, he
says:
But there has been a general feeling that
alien dominance over the economic life of
the country is not desirable and that if such
a
situation
should
remain,
political
independence alone is no guarantee to
national stability and strength. Filipino
private capital is not big enough to wrest
from alien hands the control of the national
economy. Moreover, it is but of recent
formation and hence, largely inexperienced,
timid and hesitant. Under such conditions,
the government as the instrumentality of
the national will, has to step in and assume

35

the initiative, if not the leadership, in the

struggle for the economic freedom of the
nation in somewhat the same way that it
did in the crusade for political freedom.
Thus . . . it (the Constitution) envisages an
organized movement for the protection of
the nation not only against the possibilities
of armed invasion but also against its
economic subjugation by alien interests in
the economic field. (Phil. Political Law by
Sinco, 10th ed., p. 476.)
Belief in the existence of alien control and
predominance is felt in other quarters. Filipino
businessmen, manufacturers and producers believe
so; they fear the dangers coming from alien
control, and they express sentiments of economic
independence. Witness thereto is Resolution No. 1,
approved on July 18, 1953, of the Fifth National
convention of Filipino Businessmen, and a similar
resolution, approved on March 20, 1954, of the
Second National Convention of Manufacturers and
Producers. The man in the street also believes, and
fears, alien predominance and control; so our
newspapers, which have editorially pointed out not
only to control but to alien stranglehold. We,
therefore, find alien domination and control to be a
fact, a reality proved by official statistics, and felt
by all the sections and groups that compose the
Filipino community.
e. Dangers of alien control and dominance in retail.

But the dangers arising from alien participation in

the retail trade does not seem to lie in the
predominance alone; there is a prevailing feeling
that such predominance may truly endanger the
national interest. With ample capital, unity of
purpose and action and thorough organization,
alien retailers and merchants can act in such
complete unison and concert on such vital matters
as the fixing of prices, the determination of the
amount of goods or articles to be made available in
the market, and even the choice of the goods or
articles they would or would not patronize or
distribute, that fears of dislocation of the national
economy and of the complete subservience of
national economy and of the consuming public are
not entirely unfounded. Nationals, producers and
consumers alike can be placed completely at their
mercy. This is easily illustrated. Suppose an article
of daily use is desired to be prescribed by the
aliens, because the producer or importer does not
offer them sufficient profits, or because a new
competing article offers bigger profits for its

introduction. All that aliens would do is to agree to

refuse to sell the first article, eliminating it from
their stocks, offering the new one as a substitute.
Hence, the producers or importers of the
prescribed article, or its consumers, find the article
suddenly out of the prescribed article, or its
consumers, find the article suddenly out of
circulation. Freedom of trade is thus curtailed and
free enterprise correspondingly suppressed.
We can even go farther than theoretical
illustrations to show the pernicious influences of
alien domination. Grave abuses have characterized
the exercise of the retail trade by aliens. It is a fact
within judicial notice, which courts of justice may
not properly overlook or ignore in the interests of
truth and justice, that there exists a general feeling
on the part of the public that alien participation in
the retail trade has been attended by a pernicious
and intolerable practices, the mention of a few of
which would suffice for our purposes; that at some
time or other they have cornered the market of
essential commodities, like corn and rice, creating
artificial scarcities to justify and enhance profits to
unreasonable proportions; that they have hoarded
essential foods to the inconvenience and prejudice
of the consuming public, so much so that the
Government has had to establish the National Rice
and Corn Corporation to save the public from their
continuous hoarding practices and tendencies; that
they have violated price control laws, especially on
foods and essential commodities, such that the
legislature had to enact a law (Sec. 9, Republic Act
No. 1168), authorizing their immediate and
automatic deportation for price control convictions;
that they have secret combinations among
themselves to control prices, cheating the
operation of the law of supply and demand; that
they have connived to boycott honest merchants
and traders who would not cater or yield to their
demands, in unlawful restraint of freedom of trade
and enterprise. They are believed by the public to
have evaded tax laws, smuggled goods and money
into and out of the land, violated import and export
prohibitions, control laws and the like, in derision
and contempt of lawful authority. It is also believed
that they have engaged in corrupting public
officials with fabulous bribes, indirectly causing the
prevalence of graft and corruption in the
Government. As a matter of fact appeals to
unscrupulous aliens have been made both by the
Government and by their own lawful diplomatic
representatives, action which impliedly admits a
prevailing feeling about the existence of many of
the above practices.

36

The circumstances above set forth create well

founded fears that worse things may come in the
future. The present dominance of the alien retailer,
especially in the big centers of population,
therefore, becomes a potential source of danger on
occasions of war or other calamity. We do not have
here in this country isolated groups of harmless
aliens retailing goods among nationals; what we
have are well organized and powerful groups that
dominate
the
distribution
of
goods
and
commodities in the communities and big centers of
population. They owe no allegiance or loyalty to
the State, and the State cannot rely upon them in
times of crisis or emergency. While the national
holds his life, his person and his property subject
to the needs of his country, the alien may even
become the potential enemy of the State.
f. Law enacted in interest of national economic
survival and security.
We are fully satisfied upon a consideration of all
the facts and circumstances that the disputed law
is not the product of racial hostility, prejudice or
discrimination, but the expression of the legitimate
desire and determination of the people, thru their
authorized representatives, to free the nation from
the economic situation that has unfortunately been
saddled upon it rightly or wrongly, to its
disadvantage. The law is clearly in the interest of
the public, nay of the national security itself, and
indisputably falls within the scope of police power,
thru which and by which the State insures its
existence and security and the supreme welfare of
its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade.
The next question that now poses solution is,
Does the law deny the equal protection of the
laws? As pointed out above, the mere fact of
alienage is the root and cause of the distinction
between the alien and the national as a trader. The
alien resident owes allegiance to the country of his
birth or his adopted country; his stay here is for
personal convenience; he is attracted by the lure of
gain and profit. His aim or purpose of stay, we
admit, is neither illegitimate nor immoral, but he is
naturally lacking in that spirit of loyalty and
enthusiasm for this country where he temporarily
stays and makes his living, or of that spirit of
regard, sympathy and consideration for his Filipino
customers as would prevent him from taking
advantage of their weakness and exploiting them.
The faster he makes his pile, the earlier can the

alien go back to his beloved country and his

beloved kin and countrymen. The experience of the
country is that the alien retailer has shown such
utter disregard for his customers and the people on
whom he makes his profit, that it has been found
necessary to adopt the legislation, radical as it may
seem.
Another objection to the alien retailer in this
country is that he never really makes a genuine
contribution to national income and wealth. He
undoubtedly contributes to general distribution, but
the gains and profits he makes are not invested in
industries that would help the country's economy
and increase national wealth. The alien's interest in
this country being merely transient and temporary,
it would indeed be ill-advised to continue
entrusting the very important function of retail
distribution to his hands.
The practices resorted to by aliens in the control of
distribution, as already pointed out above, their
secret manipulations of stocks of commodities and
prices, their utter disregard of the welfare of their
customers and of the ultimate happiness of the
people of the nation of which they are mere
guests, which practices, manipulations and
disregard do not attend the exercise of the trade
by the nationals, show the existence of real and
actual, positive and fundamental differences
between an alien and a national which fully justify
the legislative classification adopted in the retail
trade measure. These differences are certainly a
valid reason for the State to prefer the national
over the alien in the retail trade. We would be
doing violence to fact and reality were we to hold
that no reason or ground for a legitimate
distinction can be found between one and the
other.
b. Difference in alien aims and purposes sufficient
basis for distinction.
The above objectionable characteristics of the
exercise of the retail trade by the aliens, which are
actual and real, furnish sufficient grounds for
legislative classification of retail traders into
nationals and aliens. Some may disagree with the
wisdom of the legislature's classification. To this we
answer, that this is the prerogative of the lawmaking power. Since the Court finds that the
classification is actual, real and reasonable, and all
persons of one class are treated alike, and as it
cannot be said that the classification is patently
unreasonable and unfounded, it is in duty bound to
declare that the legislature acted within its

37

legitimate prerogative and it can not declare that

the act transcends the limit of equal protection
established by the Constitution.
Broadly speaking, the power of the legislature to
make distinctions and classifications among
persons is not curtailed or denied by the equal
protection of the laws clause. The legislative power
admits of a wide scope of discretion, and a law can
be violative of the constitutional limitation only
when the classification is without reasonable basis.
In addition to the authorities we have earlier cited,
we can also refer to the case of Linsey vs. Natural
Carbonic Fas Co. (1911), 55 L. ed., 369, which
clearly and succinctly defined the application of
equal protection clause to a law sought to be
voided as contrary thereto:
. . . . "1. The equal protection clause of the
Fourteenth Amendment does not take from
the state the power to classify in the
adoption of police laws, but admits of the
exercise of the wide scope of discretion in
that regard, and avoids what is done only
when it is without any reasonable basis, and
therefore is purely
arbitrary. 2. A
classification having some reasonable basis
does not offend against that clause merely
because it is not made with mathematical
nicety, or because in practice it results in
some inequality. 3. When the classification
in such a law is called in question, if any
state of facts reasonably can be conceived
that would sustain it, the existence of that
state of facts at the time the law was
enacted must be assumed. 4. One who
assails the classification in such a law must
carry the burden of showing that it does not
rest upon any reasonable basis but is
essentially arbitrary."
c. Authorities recognizing citizenship as basis for
classification.
The question as to whether or not citizenship is a
legal and valid ground for classification has already
been affirmatively decided in this jurisdiction as
well as in various courts in the United States. In
the case of Smith Bell & Co. vs. Natividad, 40 Phil.
136, where the validity of Act No. 2761 of the
Philippine Legislature was in issue, because of a
condition therein limiting the ownership of vessels
engaged in coastwise trade to corporations formed
by citizens of the Philippine Islands or the United
States, thus denying the right to aliens, it was held
that the Philippine Legislature did not violate the

equal protection clause of the Philippine Bill of

Rights. The legislature in enacting the law had as
ultimate purpose the encouragement of Philippine
shipbuilding and the safety for these Islands from
foreign interlopers. We held that this was a valid
exercise of the police power, and all presumptions
are in favor of its constitutionality. In substance,
we held that the limitation of domestic ownership
of vessels engaged in coastwise trade to citizens of
the Philippines does not violate the equal
protection of the law and due process or law
clauses of the Philippine Bill of Rights. In rendering
said decision we quoted with approval the
concurring opinion of Justice Johnson in the case
of Gibbons vs. Ogden, 9 Wheat., I, as follows:
"Licensing acts, in fact, in legislation, are
universally
restraining
acts;
as,
for
example, acts licensing gaming houses,
retailers of spirituous liquors, etc. The act,
in this instance, is distinctly of that
character, and forms part of an extensive
system, the object of which is to encourage
American shipping, and place them on an
equal footing with the shipping of other
nations. Almost every commercial nation
reserves to its own subjects a monopoly of
its coasting trade; and a countervailing
privilege in favor of American shipping is
contemplated, in the whole legislation of the
United States on this subject. It is not to
give the vessel an American character, that
the license is granted; that effect has been
correctly attributed to the act of her
enrollment. But it is to confer on her
American privileges, as contra distinguished
from foreign; and to preserve the
Government from fraud by foreigners; in
surreptitiously intruding themselves into the
American commercial marine, as well as
frauds upon the revenue in the trade
coastwise, that this whole system is
projected."
The rule in general is as follows:
Aliens are under no special constitutional
protection which forbids a classification
otherwise justified simply because the
limitation of the class falls along the lines of
nationality. That would be requiring a higher
degree of protection for aliens as a class
than for similar classes than for similar
classes of American citizens. Broadly
speaking, the difference in status between
citizens and aliens constitutes a basis for

38

reasonable classification in the exercise of

police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149
(Massachusetts, 1907), a statute on the licensing
of hawkers and peddlers, which provided that no
one can obtain a license unless he is, or has
declared his intention, to become a citizen of the
United States, was held valid, for the following
reason: It may seem wise to the legislature to limit
the business of those who are supposed to have
regard for the welfare, good order and happiness
of the community, and the court cannot question
this judgment and conclusion. In Bloomfield vs.
State, 99 N. E. 309 (Ohio, 1912), a statute which
prevented certain persons, among them aliens,
from engaging in the traffic of liquors, was found
not to be the result of race hatred, or in hospitality,
or a deliberate purpose to discriminate, but was
based on the belief that an alien cannot be
sufficiently acquainted with "our institutions and
our life as to enable him to appreciate the relation
of this particular business to our entire social
fabric", and was not, therefore, invalid. In Ohio ex
rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed.
115 (1926), the U.S. Supreme Court had under
consideration an ordinance of the city of Cincinnati
prohibiting the issuance of licenses (pools and
billiard rooms) to aliens. It held that plainly
irrational discrimination against aliens is prohibited,
but it does not follow that alien race and allegiance
may not bear in some instances such a relation to
a legitimate object of legislation as to be made the
basis of permitted classification, and that it could
not state that the legislation is clearly wrong; and
that latitude must be allowed for the legislative
appraisement of local conditions and for the
legislative choice of methods for controlling an
apprehended evil. The case of State vs. Carrol, 124
N. E. 129 (Ohio, 1919) is a parallel case to the one
at bar. In Asakura vs. City of Seattle, 210 P. 30
(Washington, 1922), the business of pawn
brooking was considered as having tendencies
injuring public interest, and limiting it to citizens is
within the scope of police power. A similar statute
denying aliens the right to engage in auctioneering
was also sustained in Wright vs. May, L.R.A., 1915
P. 151 (Minnesota, 1914). So also in Anton vs. Van
Winkle, 297 F. 340 (Oregon, 1924), the court said
that aliens are judicially known to have different
interests, knowledge, attitude, psychology and
loyalty, hence the prohibitions of issuance of
licenses to them for the business of pawnbroker,
pool, billiard, card room, dance hall, is not an
infringement of constitutional rights. In Templar
vs. Michigan State Board of Examiners, 90 N.W.

1058 (Michigan, 1902), a law prohibiting the

licensing of aliens as barbers was held void, but
the reason for the decision was the court's findings
that the exercise of the business by the aliens does
not in any way affect the morals, the health, or
even the convenience of the community.
In Takahashi vs. Fish and Game Commission, 92 L.
ed. 1479 (1947), a California statute banning the
issuance of commercial fishing licenses to person
ineligible to citizenship was held void, because the
law conflicts with Federal power over immigration,
and because there is no public interest in the mere
claim of ownership of the waters and the fish in
them, so there was no adequate justification for
the discrimination. It further added that the law
was the outgrowth of antagonism toward the
persons of Japanese ancestry. However, two
Justices dissented on the theory that fishing rights
have been treated traditionally as natural
resources. In Fraser vs. McConway & Tarley Co.,
82 Fed. 257 (Pennsylvania, 1897), a state law
which imposed a tax on every employer of foreignborn unnaturalized male persons over 21 years of
age, was declared void because the court found
that there was no reason for the classification and
the tax was an arbitrary deduction from the daily
wage of an employee.
d. Authorities contra explained.
It is true that some decisions of the Federal court
and of the State courts in the United States hold
that the distinction between aliens and citizens is
not a valid ground for classification. But in this
decision the laws declared invalid were found to be
either arbitrary, unreasonable or capricious, or
were the result or product of racial antagonism and
hostility, and there was no question of public
interest involved or pursued. In Yu Cong Eng vs.
Trinidad, 70 L. ed. 1059 (1925), the United States
Supreme Court declared invalid a Philippine law
making unlawful the keeping of books of account in
any language other than English, Spanish or any
other local dialect, but the main reasons for the
decisions are: (1) that if Chinese were driven out
of business there would be no other system of
distribution, and (2) that the Chinese would fall
prey to all kinds of fraud, because they would be
deprived of their right to be advised of their
business and to direct its conduct. The real reason
for the decision, therefore, is the court's belief that
no public benefit would be derived from the
operations of the law and on the other hand it
would deprive Chinese of something indispensable
for carrying on their business. In Yick Wo vs.
Hopkins, 30 L. ed 220 (1885) an ordinance

39

conferring powers on officials to withhold consent

in the operation of laundries both as to persons
and place, was declared invalid, but the court said
that the power granted was arbitrary, that there
was no reason for the discrimination which
attended the administration and implementation of
the law, and that the motive thereof was mere
racial hostility. In State vs. Montgomery, 47 A. 165
(Maine, 1900), a law prohibiting aliens to engage
as hawkers and peddlers was declared void,
because the discrimination bore no reasonable and
just relation to the act in respect to which the
classification was proposed.
The case at bar is radically different, and the facts
make them so. As we already have said, aliens do
not
naturally
possess
the
sympathetic
consideration and regard for the customers with
whom they come in daily contact, nor the patriotic
desire to help bolster the nation's economy, except
in so far as it enhances their profit, nor the loyalty
and allegiance which the national owes to the land.
These limitations on the qualifications of the aliens
have been shown on many occasions and
instances, especially in times of crisis and
emergency. We can do no better than borrow the
language of Anton vs. Van Winkle, 297 F. 340,
342, to drive home the reality and significance of
the distinction between the alien and the national,
thus:
. . . . It may be judicially known, however,
that alien coming into this country are
without the intimate knowledge of our laws,
customs, and usages that our own people
have. So it is likewise known that certain
classes of aliens are of different psychology
from our fellow countrymen. Furthermore, it
is natural and reasonable to suppose that
the foreign born, whose allegiance is first to
their own country, and whose ideals of
governmental environment and control have
been engendered and formed under entirely
different regimes and political systems,
have not the same inspiration for the public
weal, nor are they as well disposed toward
the United States, as those who by
citizenship, are a part of the government
itself. Further enlargement, is unnecessary.
I have said enough so that obviously it
cannot be affirmed with absolute confidence
that the Legislature was without plausible
reason for making the classification, and
therefore
appropriate
discriminations
against aliens as it relates to the subject of
legislation. . . . .

VII. The Due Process of Law Limitation.

a. Reasonability, the test of the limitation;
determination by legislature decisive.
We now come to due process as a limitation on the
exercise of the police power. It has been stated by
the highest authority in the United States that:
. . . . And the guaranty of due process, as
has often been held, demands only that the
law shall not be unreasonable, arbitrary or
capricious, and that the means selected
shall have a real and substantial relation to
the subject sought to be attained. . . . .
xxx

xxx

xxx

So far as the requirement of due process is

concerned and in the absence of other
constitutional restriction a state is free to
adopt whatever economic policy may
reasonably be deemed to promote public
welfare, and to enforce that policy by
legislation adapted to its purpose. The
courts are without authority either to
declare such policy, or, when it is declared
by the legislature, to override it. If the laws
passed are seen to have a reasonable
relation to a proper legislative purpose, and
are neither arbitrary nor discriminatory, the
requirements of due process are satisfied,
and judicial determination to that effect
renders a court functus officio. . . . (Nebbia
vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given
to the word "reasonable" in considering the
scope of the police power in a constitutional
sense, for the test used to determine the
constitutionality of the means employed by
the legislature is to inquire whether the
restriction it imposes on rights secured to
individuals by the Bill of Rights are
unreasonable, and not whether it imposes
any restrictions on such rights. . . .
xxx

xxx

xxx

. . . . A statute to be within this power must

also be reasonable in its operation upon the
persons whom it affects, must not be for
the annoyance of a particular class, and

40

must not be unduly oppressive. (11 Am.

Jur. Sec. 302., 1:1)- 1074-1075.)

the nation's economy endangering the national

security in times of crisis and emergency.

In the case of Lawton vs. Steele, 38 L. ed. 385,

388. it was also held:

The real question at issue, therefore, is not that

posed by petitioner, which overlooks and ignores
the facts and circumstances, but this, Is the
exclusion in the future of aliens from the retail
trade unreasonable. Arbitrary capricious, taking
into account the illegitimate and pernicious form
and manner in which the aliens have heretofore
engaged therein? As thus correctly stated the
answer is clear. The law in question is deemed
absolutely necessary to bring about the desired
legislative objective, i.e., to free national economy
from alien control and dominance. It is not
necessarily unreasonable because it affects private
rights and privileges (11 Am. Jur. pp. 1080-1081.)
The test of reasonableness of a law is the
appropriateness
or
adequacy
under
all
circumstances of the means adopted to carry out
its purpose into effect (Id.) Judged by this test,
disputed legislation, which is not merely reasonable
but actually necessary, must be considered not to
have infringed the constitutional limitation of
reasonableness.

. . . . 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. . . .
Prata Undertaking Co. vs. State Board of
Embalming, 104 ALR, 389, 395, fixes this test of
constitutionality:
In determining whether a given act of the
Legislature, passed in the exercise of the
police power to regulate the operation of a
business, is or is not constitutional, one of
the first questions to be considered by the
court is whether the power as exercised has
a sufficient foundation in reason in
connection with the matter involved, or is
an arbitrary, oppressive, and capricious use
of that power, without substantial relation
to the health, safety, morals, comfort, and
general welfare of the public.
b. Petitioner's argument considered.
Petitioner's main argument is that retail is a
common, ordinary occupation, one of those
privileges long ago recognized as essential to the
orderly pursuant of happiness by free men; that it
is a gainful and honest occupation and therefore
beyond the power of the legislature to prohibit and
penalized. This arguments overlooks fact and
reality and rests on an incorrect assumption and
premise, i.e., that in this country where the
occupation is engaged in by petitioner, it has been
so engaged by him, by the alien in an honest
creditable and unimpeachable manner, without
harm or injury to the citizens and without ultimate
danger to their economic peace, tranquility and
welfare. But the Legislature has found, as we have
also found and indicated, that the privilege has
been so grossly abused by the alien, thru the
illegitimate use of pernicious designs and practices,
that he now enjoys a monopolistic control of the
occupation and threatens a deadly stranglehold on

The necessity of the law in question is explained in

the explanatory note that accompanied the bill,
which later was enacted into law:
This bill proposes to regulate the retail
business. Its purpose is to prevent persons
who are not citizens of the Philippines from
having a strangle hold upon our economic
life. If the persons who control this vital
artery of our economic life are the ones who
owe no allegiance to this Republic, who
have no profound devotion to our free
institutions, and who have no permanent
stake in our people's welfare, we are not
really the masters of our destiny. All
aspects of our life, even our national
security, will be at the mercy of other
people.
In seeking to accomplish the foregoing
purpose, we do not propose to deprive
persons who are not citizens of the
Philippines of their means of livelihood.
While this bill seeks to take away from the
hands of persons who are not citizens of the
Philippines a power that can be wielded to
paralyze all aspects of our national life and
endanger our national security it respects
existing rights.

41

The approval of this bill is necessary for our

national survival.
If political independence is a legitimate aspiration
of a people, then economic independence is none
the less legitimate. Freedom and liberty are not
real and positive if the people are subject to the
economic control and domination of others,
especially if not of their own race or country. The
removal and eradication of the shackles of foreign
economic control and domination, is one of the
noblest motives that a national legislature may
pursue. It is impossible to conceive that legislation
that seeks to bring it about can infringe the
constitutional limitation of due process. The
attainment of a legitimate aspiration of a people
can never be beyond the limits of legislative
authority.
c. Law expressly held by Constitutional Convention
to be within the sphere of legislative action.
The framers of the Constitution could not have
intended to impose the constitutional restrictions of
due process on the attainment of such a noble
motive as freedom from economic control and
domination, thru the exercise of the police power.
The fathers of the Constitution must have given to
the legislature full authority and power to enact
legislation that would promote the supreme
happiness of the people, their freedom and liberty.
On the precise issue now before us, they expressly
made their voice clear; they adopted a resolution
expressing their belief that the legislation in
question is within the scope of the legislative
power. Thus they declared the their Resolution:
That it is the sense of the Convention that
the
public
interest
requires
the
nationalization of retail trade; but it abstain
from approving the amendment introduced
by the Delegate for Manila, Mr. Araneta,
and others on this matter because it is
convinced that the National Assembly is
authorized to promulgate a law which limits
to Filipino and American citizens the
privilege to engage in the retail trade. (11
Aruego, The Framing of the Philippine
Constitution, quoted on pages 66 and 67 of
the Memorandum for the Petitioner.)
It would do well to refer to the nationalistic
tendency manifested in various provisions of the
Constitution. Thus in the preamble, a principle
objective is the conservation of the patrimony of
the nation and as corollary the provision limiting to

citizens of the Philippines the exploitation,

development and utilization of its natural
resources. And in Section 8 of Article XIV, it is
provided that "no franchise, certificate, or any
other form of authorization for the operation of the
public utility shall be granted except to citizens of
the Philippines." The nationalization of the retail
trade is only a continuance of the nationalistic
protective policy laid down as a primary objective
of the Constitution. Can it be said that a law
imbued with the same purpose and spirit
underlying many of the provisions of the
Constitution
is
unreasonable,
invalid
and
unconstitutional?
The seriousness of the Legislature's concern for the
plight of the nationals as manifested in the
approval of the radical measures is, therefore, fully
justified. It would have been recreant to its duties
towards the country and its people would it view
the sorry plight of the nationals with the
complacency and refuse or neglect to adopt a
remedy commensurate with the demands of public
interest and national survival. As the repository of
the sovereign power of legislation, the Legislature
was in duty bound to face the problem and meet,
through adequate measures, the danger and threat
that alien domination of retail trade poses to
national economy.
d. Provisions of law not unreasonable.
A cursory study of the provisions of the law
immediately reveals how tolerant, how reasonable
the Legislature has been. The law is made
prospective and recognizes the right and privilege
of those already engaged in the occupation to
continue therein during the rest of their lives; and
similar recognition of the right to continue is
accorded associations of aliens. The right or
privilege is denied to those only upon conviction of
certain offenses. In the deliberations of the Court
on this case, attention was called to the fact that
the privilege should not have been denied to
children and heirs of aliens now engaged in the
retail trade. Such provision would defeat the law
itself, its aims and purposes. Beside, the exercise
of legislative discretion is not subject to judicial
review. It is well settled that the Court will not
inquire into the motives of the Legislature, nor
pass upon general matters of legislative judgment.
The Legislature is primarily the judge of the
necessity of an enactment or of any of its
provisions, and every presumption is in favor of its
validity, and though the Court may hold views
inconsistent with the wisdom of the law, it may not

42

annul the legislation if not palpably in excess of the

legislative power. Furthermore, the test of the
validity of a law attacked as a violation of due
process, is not its reasonableness, but its
unreasonableness, and we find the provisions are
not unreasonable. These principles also answer
various other arguments raised against the law,
some of which are: that the law does not promote
general welfare; that thousands of aliens would be
thrown out of employment; that prices will increase
because of the elimination of competition; that
there is no need for the legislation; that adequate
replacement is problematical; that there may be
general
breakdown; that there would be
repercussions from foreigners; etc. Many of these
arguments are directed against the supposed
wisdom of the law which lies solely within the
legislative prerogative; they do not import
invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged
invalidity of the law is the claim that the title
thereof is misleading or deceptive, as it conceals
the real purpose of the bill which is to nationalize
the retail business and prohibit aliens from
engaging therein. The constitutional provision
which is claimed to be violated in Section 21 (1) of
Article VI, which reads:
No bill which may be enacted in the law
shall embrace more than one subject which
shall be expressed in the title of the bill.
What the above provision prohibits is duplicity, that
is, if its title completely fails to appraise the
legislators or the public of the nature, scope and
consequences of the law or its operation (I
Sutherland, Statutory Construction, Sec. 1707, p.
297.) A cursory consideration of the title and the
provisions of the bill fails to show the presence of
duplicity. It is true that the term "regulate" does
not and may not readily and at first glance convey
the idea of "nationalization" and "prohibition",
which terms express the two main purposes and
objectives of the law. But "regulate" is a broader
term than either prohibition or nationalization. Both
of these have always been included within the term
regulation.
Under the title of an act to "regulate", the
sale of intoxicating liquors, the Legislature
may prohibit the sale of intoxicating liquors.
(Sweet vs. City of Wabash, 41 Ind., 7;
quoted in page 41 of Answer.)

Within the meaning of the Constitution

requiring that the subject of every act of the
Legislature shall be stated in the tale, the
title to regulate the sale of intoxicating
liquors, etc." sufficiently expresses the
subject of an act prohibiting the sale of such
liquors to minors and to persons in the habit
of getting intoxicated; such matters being
properly included within the subject of
regulating the sale. (Williams vs. State, 48
Ind. 306, 308, quoted in p. 42 of Answer.)
The word "regulate" is of broad import, and
necessarily implies
some
degree
of
restraint and prohibition of acts usually
done in connection with the thing to be
regulated. While word regulate does not
ordinarily convey meaning of prohibit, there
is no absolute reason why it should not
have such meaning when used in delegating
police power in connection with a thing the
best or only efficacious regulation of which
involves suppression. (State vs. Morton,
162 So. 718, 182 La. 887, quoted in p. 42
of Answer.)
The general rule is for the use of general terms in
the title of a bill; it has also been said that the title
need not be an index to the entire contents of the
law (I Sutherland, Statutory Construction, See.
4803, p. 345.) The above rule was followed the
title of the Act in question adopted the more
general term "regulate" instead of "nationalize" or
"prohibit". Furthermore, the law also contains other
rules for the regulation of the retail trade which
may not be included in the terms "nationalization"
or "prohibition"; so were the title changed from
"regulate" to "nationalize" or "prohibit", there
would have been many provisions not falling within
the scope of the title which would have made the
Act invalid. The use of the term "regulate",
therefore, is in accord with the principle governing
the drafting of statutes, under which a simple or
general term should be adopted in the title, which
would include all other provisions found in the body
of the Act.
One purpose of the constitutional directive that the
subject of a bill should be embraced in its title is to
apprise the legislators of the purposes, the nature
and scope of its provisions, and prevent the
enactment into law of matters which have received
the notice, action and study of the legislators or of
the public. In the case at bar it cannot be claimed
that the legislators have been appraised of the
nature of the law, especially the nationalization and

43

the prohibition provisions. The legislators took

active interest in the discussion of the law, and a
great many of the persons affected by the
prohibitions in the law conducted a campaign
against its approval. It cannot be claimed,
therefore, that the reasons for declaring the law
invalid ever existed. The objection must therefore,
be overruled.
IX. Alleged violation of international treaties and
obligations
Another subordinate argument against the validity
of the law is the supposed violation thereby of the
Charter of the United Nations and of the
Declaration of the Human Rights adopted by the
United Nations General Assembly. We find no merit
in the Nations Charter imposes no strict or legal
obligations regarding the rights and freedom of
their subjects (Hans Kelsen, The Law of the United
Nations, 1951 ed. pp. 29-32), and the Declaration
of Human Rights contains nothing more than a
mere recommendation or a common standard of
achievement for all peoples and all nations (Id. p.
39.) That such is the import of the United Nations
Charter aid of the Declaration of Human Rights can
be inferred the fact that members of the United
Nations Organizations, such as Norway and
Denmark, prohibit foreigners from engaging in
retail trade, and in most nations of the world laws
against foreigners engaged in domestic trade are
adopted.
The Treaty of Amity between the Republic of the
Philippines and the Republic of China of April 18,
1947 is also claimed to be violated by the law in
question. All that the treaty guarantees is equality
of treatment to the Chinese nationals "upon the
same terms as the nationals of any other country."
But the nationals of China are not discriminating
against because nationals of all other countries,
except those of the United States, who are granted
special rights by the Constitution, are all prohibited
from engaging in the retail trade. But even
supposing that the law infringes upon the said
treaty, the treaty is always subject to qualification
or amendment by a subsequent law (U. S. vs.
Thompson, 258, Fed. 257, 260), and the same
may never curtail or restrict the scope of the police
power of the State (plaston vs. Pennsylvania, 58 L.
ed. 539.)

actual threat and danger to national economy

posed by alien dominance and control of the retail
business and free citizens and country from
dominance and control; that the enactment clearly
falls within the scope of the police power of the
State, thru which and by which it protects its own
personality and insures its security and future; that
the law does not violate the equal protection clause
of the Constitution because sufficient grounds exist
for the distinction between alien and citizen in the
exercise of the occupation regulated, nor the due
process of law clause, because the law is
prospective in operation and recognizes the
privilege of aliens already engaged in the
occupation and reasonably protects their privilege;
that the wisdom and efficacy of the law to carry
out its objectives appear to us to be plainly evident
as a matter of fact it seems not only appropriate
but actually necessary and that in any case such
matter falls within the prerogative of the
Legislature, with whose power and discretion the
Judicial department of the Government may not
interfere; that the provisions of the law are clearly
embraced in the title, and this suffers from no
duplicity and has not misled the legislators or the
segment of the population affected; and that it
cannot be said to be void for supposed conflict with
treaty obligations because no treaty has actually
been entered into on the subject and the police
power may not be curtailed or surrendered by any
treaty or any other conventional agreement.
Some members of the Court are of the opinion that
the radical effects of the law could have been made
less harsh in its impact on the aliens. Thus it is
stated that the more time should have been given
in the law for the liquidation of existing businesses
when the time comes for them to close. Our legal
duty, however, is merely to determine if the law
falls within the scope of legislative authority and
does not transcend the limitations of due process
and
equal
protection
guaranteed
in
the
Constitution. Remedies against the harshness of
the law should be addressed to the Legislature;
they are beyond our power and jurisdiction.
The petition is hereby denied, with costs against
petitioner.
Paras, C.J., Bengzon, Reyes, A., Bautista Angelo,
Concepcion, Reyes, J.B.L., Endencia and Felix,
JJ., concur.

X. Conclusion
Resuming what we have set forth above we hold
that the disputed law was enacted to remedy a real

44

Separate Opinions
PADILLA, J., concurring and dissenting:
I agree to the proposition, principle or rule that
courts may not inquire into the wisdom of an the
Act passed by the Congress and duly approved by
the President of the Republic. But the rule does not
preclude courts from inquiring and determining
whether the Act offends against a provision or
provisions of the Constitution. I am satisfied that
the Act assailed as violative of the due process of
law and the equal protection of the laws clauses of
the Constitution does not infringe upon them,
insofar as it affects associations, partnership or
corporations, the capital of which is not wholly
owned by the citizens of the Philippines, and aliens,
who are not and have not been engaged in the
retail business. I am, however, unable to persuade
myself that it does not violate said clauses insofar
as the Act applies to associations and partnerships
referred to in the Act and to aliens, who are and
have heretofore been engaged in said business.
When they did engage in the retail business there
was no prohibition on or against them to engage in
it. They assumed and believed in good faith they
were entitled to engaged in the business. The Act
allows aliens to continue in business until their
death or voluntary retirement from the business or
forfeiture of their license; and corporations,
associations or partnership, the capital of which is
not wholly owned by the citizens of the Philippines
to continue in the business for a period of ten
years from the date of the approval of the Act (19
June 1954) or until the expiry of term of the
existence of the association or partnership or
corporation, whichever event comes first. The
prohibition on corporations, the capital of which is
not wholly owned by citizens of the Philippines, to
engage in the retail business for a period of more
than ten years from the date of the approval of the
Act or beyond the term of their corporate
existence, whichever event comes first, is valid and
lawful, because the continuance of the existence of
such corporations is subject to whatever the
Congress may impose reasonably upon them by
subsequent legislation.1 But the prohibition to
engage in the retail business by associations and
partnerships, the capital of which is not wholly
owned by citizen of the Philippines, after ten years
from the date of the approval of the Act, even
before the end of the term of their existence as
agreed upon by the associates and partners, and
by alien heirs to whom the retail business is
transmitted by the death of an alien engaged in the
business, or by his executor or administrator,

amounts to a deprivation of their property without

due process of law. To my mind, the ten-year
period from the date of the approval of the Act or
until the expiration of the term of the existence of
the association and partnership, whichever event
comes first, and the six-month period granted to
alien heirs of a deceased alien, his executor or
administrator, to liquidate the business, do not
cure the defect of the law, because the effect of
the prohibition is to compel them to sell or dispose
of their business. The price obtainable at such
forced sale of the business would be inadequate to
reimburse and compensate the associates or
partners of the associations or partnership, and the
alien heirs of a deceased alien, engaged in the
retail business for the capital invested in it. The
stock of merchandise bought and sold at retail
does not alone constitute the business. The
goodwill that the association, partnership and the
alien had built up during a long period of effort,
patience and perseverance forms part of such
business. The constitutional provisions that no
person shall be deprived of his property without
due process of law2 and that no person shall be
denied the equal protection of the laws3 would
have no meaning as applied to associations or
partnership and alien heirs of an alien engaged in
the retail business if they were to be compelled to
sell or dispose of their business within ten years
from the date of the approval of the Act and before
the end of the term of the existence of the
associations and partnership as agreed upon by the
associations and partners and within six months
after the death of their predecessor-in-interest.
The authors of the Constitution were vigilant,
careful and zealous in the safeguard of the
ownership of private agricultural lands which
together with the lands of the public domain
constitute the priceless patrimony and mainstay of
the nation; yet, they did not deem it wise and
prudent to deprive aliens and their heirs of such
lands.4
For these reasons, I am of the opinion that section
1 of the Act, insofar as it compels associations and
partnership referred to therein to wind up their
retail business within ten years from the date of
the approval of the Act even before the expiry of
the term of their existence as agreed upon by the
associates and partners and section 3 of the Act,
insofar as it compels the aliens engaged in the
retail business in his lifetime his executor or
administrator, to liquidate the business, are invalid,
for they violate the due process of law and the

45

equal protection
Constitution.
Republic
SUPREME
Manila

of

the

of

laws

the

clauses

of

the

Philippines
COURT

EN BANC
G.R. No. L-29646 November 10, 1978
MAYOR ANTONIO J. VILLEGAS, petitioner,
vs.
HIU CHIONG TSAI PAO HO and JUDGE
FRANCISCO ARCA, respondents.
Angel C. Cruz, Gregorio A. Ejercito, Felix C. Chaves
& Jose Laureta for petitioner.
Sotero H. Laurel for respondents.

FERNANDEZ, J.:
This is a petition for certiorari to review tile
decision dated September 17, 1968 of respondent
Judge Francisco Arca of the Court of First Instance
of Manila, Branch I, in Civil Case No. 72797, the
dispositive portion of winch reads.
Wherefore, judgment is hereby
rendered in favor of the petitioner
and
against
the
respondents,
declaring Ordinance No. 6 37 of the
City of Manila null and void. The
preliminary
injunction
is
made
permanent. No pronouncement as to
cost.
SO ORDERED.
Manila, Philippines, September 17,
1968.

The controverted Ordinance No. 6537 was passed

by the Municipal Board of Manila on February 22,
1968 and signed by the herein petitioner Mayor
Antonio J. Villegas of Manila on March 27, 1968. 2
City Ordinance No. 6537 is entitled:
AN
ORDINANCE
MAKING
IT
UNLAWFUL FOR ANY PERSON NOT A
CITIZEN OF THE PHILIPPINES TO BE
EMPLOYED IN ANY PLACE OF
EMPLOYMENT OR TO BE ENGAGED
IN ANY KIND OF TRADE, BUSINESS
OR OCCUPATION WITHIN THE CITY
OF
MANILA
WITHOUT
FIRST
SECURING AN EMPLOYMENT PERMIT
FROM THE MAYOR OF MANILA; AND
FOR OTHER PURPOSES. 3
Section 1 of said Ordinance No. 6537 4 prohibits
aliens from being employed or to engage or
participate in any position or occupation or
business enumerated therein, whether permanent,
temporary or casual, without first securing an
employment permit from the Mayor of Manila and
paying the permit fee of P50.00 except persons
employed in the diplomatic or(consular missions of
foreign countries, or in the Stechnical assistance
programs of both the Philippine
G Government and
any foreign government, and those
working in their
D
respective households, and members
of religious
.
orders or congregations, sect
or
denomination,
)
who are not paid monetarily or in kind.
F
Violations of this ordinance R
is punishable by an
imprisonment of not less thanAthree (3) months to

46

six (6) months or fine of not less than P100.00 but

not more than P200.00 or both such fine and
imprisonment, upon conviction. 5
On May 4, 1968, private respondent Hiu Chiong
Tsai Pao Ho who was employed in Manila, filed a
petition with the Court of First Instance of Manila,
Branch I, denominated as Civil Case No. 72797,
praying for the issuance of the writ of preliminary
injunction and restraining order to stop the
enforcement of Ordinance No. 6537 as well as for a
judgment declaring said Ordinance No. 6537 null
and void. 6
In this petition, Hiu Chiong Tsai Pao Ho assigned
the following as his grounds for wanting the
ordinance declared null and void:
1) As a revenue measure imposed on
aliens employed in the City of
Manila, Ordinance No. 6537 is
discriminatory and violative of the
rule of the uniformity in taxation;
2) As a police power measure, it
makes no distinction between useful
and
non-useful
occupations,
imposing a fixed P50.00 employment
permit, which is out of proportion to
the cost of registration and that it
fails to prescribe any standard to
guide and/or limit the action of the
Mayor,
thus,
violating
the
fundamental principle on illegal
delegation of legislative powers:
3) It is arbitrary, oppressive and
unreasonable, being applied only to
aliens who are thus, deprived of their
rights to life, liberty and property
and therefore, violates the due
process and equal protection clauses
of the Constitution. 7
On May 24, 1968, respondent Judge issued the
of preliminary injunction and on September
1968 rendered judgment declaring Ordinance
6537 null and void and making permanent the
of preliminary injunction. 8

writ
17,
No.
writ

Contesting the aforecited decision of respondent

Judge, then Mayor Antonio J. Villegas filed the
present petition on March 27, 1969. Petitioner
assigned the following as errors allegedly

committed by respondent Judge in the latter's

decision of September 17,1968: 9
I
THE
RESPONDENT
JUDGE
COMMITTED
A
SERIOUS
AND
PATENT ERROR OF LAW IN RULING
THAT
ORDINANCE
NO.
6537
VIOLATED THE CARDINAL RULE OF
UNIFORMITY OF TAXATION.
II
RESPONDENT
JUDGE
LIKEWISE
COMMITTED A GRAVE AND PATENT
ERROR OF LAW IN RULING THAT
ORDINANCE NO. 6537 VIOLATED
THE PRINCIPLE AGAINST UNDUE
DESIGNATION
OF
LEGISLATIVE
POWER.
III
RESPONDENT
JUDGE
FURTHER
COMMITTED
A
SERIOUS
AND
PATENT ERROR OF LAW IN RULING
THAT
ORDINANCE
NO.
6537
VIOLATED THE DUE PROCESS AND
EQUAL PROTECTION CLAUSES OF
THE CONSTITUTION.
Petitioner Mayor Villegas argues that Ordinance No.
6537 cannot be declared null and void on the
ground that it violated the rule on uniformity of
taxation because the rule on uniformity of taxation
applies only to purely tax or revenue measures and
that Ordinance No. 6537 is not a tax or revenue
measure but is an exercise of the police power of
the state, it being principally a regulatory measure
in nature.
The contention that Ordinance No. 6537 is not a
purely tax or revenue measure because its
principal purpose is regulatory in nature has no
merit. While it is true that the first part which
requires that the alien shall secure an employment
permit from the Mayor involves the exercise of
discretion and judgment in the processing and
approval or disapproval of applications for
employment permits and therefore is regulatory in
character the second part which requires the
payment of P50.00 as employee's fee is not
regulatory but a revenue measure. There is no
logic or justification in exacting P50.00 from aliens

47

who have been cleared for employment. It is

obvious that the purpose of the ordinance is to
raise money under the guise of regulation.
The P50.00 fee is unreasonable not only because it
is excessive but because it fails to consider valid
substantial
differences
in
situation
among
individual aliens who are required to pay it.
Although the equal protection clause of the
Constitution does not forbid classification, it is
imperative that the classification should be based
on real and substantial differences having a
reasonable relation to the subject of the particular
legislation. The same amount of P50.00 is being
collected from every employed alien whether he is
casual or permanent, part time or full time or
whether he is a lowly employee or a highly paid
executive
Ordinance No. 6537 does not lay down any
criterion or standard to guide the Mayor in the
exercise of his discretion. It has been held that
where an ordinance of a municipality fails to state
any policy or to set up any standard to guide or
limit the mayor's action, expresses no purpose to
be attained by requiring a permit, enumerates no
conditions for its grant or refusal, and entirely
lacks standard, thus conferring upon the Mayor
arbitrary and unrestricted power to grant or deny
the issuance of building permits, such ordinance is
invalid, being an undefined and unlimited
delegation of power to allow or prevent an
activity per se lawful. 10
In Chinese Flour Importers Association vs. Price
Stabilization Board, 11 where a law granted a
government agency power to determine the
allocation of wheat flour among importers, the
Supreme Court ruled against the interpretation of
uncontrolled
power as
it
vested in
the
administrative officer an arbitrary discretion to be
exercised without a policy, rule, or standard from
which it can be measured or controlled.
It was also held in Primicias vs. Fugoso 12 that the
authority and discretion to grant and refuse
permits of all classes conferred upon the Mayor of
Manila by the Revised Charter of Manila is not
uncontrolled discretion but legal discretion to be
exercised within the limits of the law.
Ordinance No. 6537 is void because it does not
contain or suggest any standard or criterion to
guide the mayor in the exercise of the power which
has been granted to him by the ordinance.

The ordinance in question violates the due process

of law and equal protection rule of the Constitution.
Requiring a person before he can be employed to
get a permit from the City Mayor of Manila who
may withhold or refuse it at will is tantamount to
denying him the basic right of the people in the
Philippines to engage in a means of livelihood.
While it is true that the Philippines as a State is not
obliged to admit aliens within its territory, once an
alien is admitted, he cannot be deprived of life
without due process of law. This guarantee
includes the means of livelihood. The shelter of
protection under the due process and equal
protection clause is given to all persons, both
aliens and citizens. 13
The trial court did not commit the errors assigned.
WHEREFORE, the decision appealed from is hereby
affirmed, without pronouncement as to costs.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION

G.R. No. 45985 May 18, 1990

CHINA
AIR
LINES,
LTD., petitioner,
vs.
COURT OF APPEALS, JOSE PAGSIBIGAN,
PHILIPPINE AIR LINES, INC. and ROBERTO
ESPIRITU,respondents.
G.R. No. 46036 May 18, 1990
PHILIPPINE AIR LINES, INC. and ROBERTO
ESPIRITU, petitioners,
vs.
COURT OF APPEALS, JOSE PAGSIBIGAN and
CHINA AIR LINES, LTD., respondents.
Balgos & Perez Law Offices for petitioner China Air
Lines, Ltd.
Siguion Reyna, Montecillo
petitioners in G.R. No. 46036.

&

Ongsiako

for

48

Syquia Law Offices for Jose Pagsibigan.

REGALADO, J.:
These consolidated petitions seek the review of the
decision of respondent court in CA-G.R. No. 53023R entitled "Jose E. Pagsibigan, Plaintiff-Appellant,
vs. Philippine Air Lines, Inc. and Roberto Espiritu,
Defendants-Appellants; China Air Lines, Ltd.,
Defendant-Appellee," 1 the dispositive portion of
which declares:
WHEREFORE,
except
for
a
modification of the judgment in the
sense that the award of P20,000.00
in favor of the plaintiff shall be in the
concept of nominal damages instead
of exemplary damages, and that
defendant China Air Lines, Ltd. shall
likewise be liable with its two codefendants in a joint and solidary
capacity, the judgment appealed
from is hereby affirmed in all other
respects, without costs. 2
The challenged decision of respondent court
contains a synthesis of the facts that spawned
these cases and the judgment of the court a
quo which it affirmed with modifications, thus:
On June 4, 1968, plaintiff Jose E.
Pagsibigan, then Vice-President and
General Manager of Rentokil (Phils.)
Inc., a local firm dealing in
insecticides, pesticides and related
services
appurtenant
thereto,
purchased a plane ticket for a
Manila-Taipei-Hongkong-Manila flight
from the Transaire Travel Agency.
The said agency, through its Cecille
Baron, contacted the Manila Hotel
branch of defendant Philippine Air
Lines which at that time was a sales
and ticketing agent of defendant
China Air lines. On June 6, 1968,
PAL, through its ticketing clerk
defendant Roberto Espiritu, cut and
issued PAL Ticket No. 01 7991 for a
Manila-Taipei-Hongkong-Manila
flight. According to the plane ticket,
the plaintiff was booked on CAL CI
Flight No. 812 to depart from Manila
for Taipei on June 10, 1968 at 17:20
hours (5:20 p.m.), Exhibit A.

On June 10, 1968, one hour before

the scheduled time of the flight as
stated in his ticket, the plaintiff
arrived at the airport to check in for
CI Flight No. 812. Upon arriving at
the
airport,
the
plaintiff
was
informed that the plane he was
supposed to take for Taipei had left
at 10:20 in the morning of that day.
The PAL employees at the airport
made appropriate arrangements for
the plaintiff to take PAL's flight to
Taipei the following day, June 11,
1968. The plaintiff took said flight
and arrived in
Taipei
around
noontime of the said date.
On July 8, 1968, the plaintiff,
through
counsel,
made
formal
demand on defendant PAL, for moral
damages
in
not
less
than
P125,000.00 for what the plaintiff
allegedly suffered as a result of his
failure to take the flight as stated in
his plane ticket. (Exhibit E) After a
series of negotiations among the
plaintiff, PAL and CAL failed to reach
an amicable settlement, the plaintiff
instituted this action in the Court of
First Instance of Rizal on September
22, 1969. In his complaint, plaintiff
prays
for
the
recovery
of
P125,000.00 as moral damages and
P25,000.00 for and as attorney's
fees. The moral damages allegedly
arose from the gross negligence of
defendant Roberto Espiritu in stating
on the plane ticket that the time of
departure was 17:20 hours, instead
of 10:20 hours which was the correct
time of departure in the revised
summer schedule of CAL. Plaintiff
claims that by reason of his failure to
take
the
plane,
he
suffered
besmirched
reputation,
embarrassment, mental anguish,
wounded feelings and sleepless
nights, inasmuch as when he went to
the airport, he was accompanied by
his business associates, close friends
and relatives. He further averred
that his trip to Taipei was for the
purpose of conferring with a certain
Peng Siong Lim, President of the
Union Taiwan Chemical Corporation,

49

scheduled at 9:00 a.m. on June 11,

1968.
Defendant
Philippine
Air
Lines
alleged in its answer that the
departure time indicated by Espiritu
in the ticket was furnished and
confirmed by the reservation office
of defendant China Air Lines. It
further averred that CAL had not
informed PAL's Manila Hotel Branch
of the revised schedule of its flight,
nor
provided
it
with
revised
timetable; that when the travel
agency sought to purchase the ticket
for the plaintiff on CAL CI Flight No.
812 for June 10, 1968, Espiritu who
was then the ticketing clerk on duty,
checked with the reservation office
of CAL on the availability of space,
the date and the time of said flight;
that CAL's Dory Chan informed
Espiritu that the departure time of
Flight No. 812 on June 10, 1968 was
at 5:20 in the afternoon of said date.
PAL asserted a cross-claim against
CAL for attorney's fees and for
reimbursement of whatever amount
the court may adjudge PAL to be
liable to the plaintiff. Defendant
Espiritu adopted the defenses of his
co-defendant PAL.
Defendant China Air Lines, for its
part, disclaims liability for the
negligence and incompetence of the
employees of PAL. It avers that it
had revised its schedule since April
1, 1968, the same to be effective on
April 20, 1968, and the said revised
schedule was adopted only after
proper petition with and approval of
the Civil Aeronautics Board of which
all airlines, including defendant PAL,
were notified; that both printed
copies of the international timetable
and of the mimeographed notices of
the official schedule and flight
departure schedules were distributed
to all its sales agents, including PAL,
that after the effectivity of the new
time schedules, PAL's Manila Hotel
office had been issuing and selling
tickets based on the revised time
schedule; and that, assuming that
the plaintiff is entitled to recover

damages, the liability is on PAL and

not on CAL. A cross-claim was
likewise asserted by CAL against its
co-defendant PAL.
After
due
trial,
the
Court a
quo rendered judgment laying the
blame for the erroneous entry in the
ticket as to the time of departure to
defendant Roberto Espiritu, ticketing
agent of defendant PAL, and that no
employee of CAL contributed to such
erroneous entry. It was further ruled
that the plaintiff had no reason to
claim moral damages but may be
entitled
to
recover
exemplary
damages. The dispositive portion of
the decision makes the following
adjudication:
WHEREFORE, premises
considered, judgment
is hereby rendered
sentencing
the
defendants Philippine
Air Lines, Inc. and
Roberto Espiritu, to
pay to plaintiff Jose
Pagsibigan jointly and
severally, by way of
exemplary
damages,
the sum of Twenty
Thousand
Pesos
(P20,000.00) plus Two
Thousand
Pesos
(P2,000.00)
as
reimbursement
for
attorney's fees and the
costs.
The
complaint
is
dismissed with respect
to the defendant China
Air Lines, Ltd. The
cross-claim filed by
defendant PAL and
Espiritu
against
defendant CAL as well
as the cross-claim filed
by the defendant CAL
against defendant PAL
and Espiritu are also
hereby dismissed. 3
From said decision of the court below, all the
parties, except China Air Lines, Ltd. appealed to

50

respondent court which, however, sustained the

ruling of the trial court denying Pagsibigan's claim
for moral damages. It concluded that Roberto
Espiritu did not act with malice or in bad faith in
making a wrong entry of the time of departure on
the ticket, and that the mistake committed by
Espiritu appears to be an honest one done in good
faith.
Respondent court also ruled out the claim for
exemplary damages for lack of legal basis.
Nonetheless, as earlier noted, it awarded
Pagsibigan P20,000.00 as nominal damages, under
Article 2221 of the Civil Code, for the vindication of
a legal wrong committed against him. As regards
the liability of the parties, respondent court held:
There can be little question as to the
liability of PAL and Espiritu for the
damage caused to the plaintiff due to
the erroneous entry in the plane
ticket made by the latter. They seek
to justify the erroneous statement as
to the time of departure on the
ground that such was the time given
by Dory Chan to Espiritu when the
latter called up for the reservation in
favor of plaintiff. Aside from the fact
that Dory Chan had vigorously
disclaimed
having
given
such
information to Espiritu, We are
convinced that, as the trial court had
found, CAL had no share in the error
committed by Espiritu in indicating
the time of departure of Flight No.
812. PAL had shown through the
testimony
of
Carmen
Ibazeta
Gallaga, ticket representative of PAL
at the Manila Hotel Office, that they
received circulars and timetables of
airlines in the PAL main office. It
further
appears
that
on
two
occasions, defendant PAL cut and
issued tickets for CAL based on the
new schedule even before June 10,
1968. As a matter of fact, the other
entries of time departures in the
ticket issued to the plaintiff are in
accordance
with
the
revised
schedule, and that the only error
therein was with respect to the
departure from Manila on June 10,
1968.
However, in proving that the fault
lied with Espiritu, defendant CAL

derives no solace nor gains an

advantage. It may not claim
exemption from liability by reason
thereof. Espiritu was an employee of
PAL and whatever negligence was
committed by him is attributable to
PAL. It is an admitted fact that PAL is
an authorized agent of CAL. In this
relationship, the responsibility of
defendant PAL for the tortious act of
its agent or representative is
inescapable. . . .
xxx xxx xxx
A similar principle is recognized in
our Civil Code in its Art. 2180 . . . .
Unlike in the doctrine ofrespondeat
superior, however, the Civil Code
permits the employer to escape this
liability upon proof of having
observed all the diligence of a good
father of a family to prevent the
damage. We find the evidence of
defendant CAL to be insufficient to
overcome
the
presumption
of
negligence on its part for the act
done by defendant Roberto Espiritu.
(Emphasis supplied)
The
liability
for
the
damage
sustained by the plaintiff should,
therefore, be borne by all of the
defendants in a joint and solidary
capacity (Art. 2194). The liability of
an employer under Art. 2180 is
primary and direct. . . .
xxx xxx xxx
It appearing that defendant CAL, as
employer or principal, did not
contribute
to
the
negligence
committed by defendants PAL and
Roberto Espiritu, its liability to the
plaintiff could be passed on to said
defendants.
Defendant
CAL,
however, did not take an appeal and
did not, therefore, take exception to
the dismissal of its cross-claim
against defendants PAL and Espiritu.
This serves as an obstacle for a
rendition of judgment favorable to
CAL on its said counterclaim. 4

51

In its petition for review on certiorari in G.R. No. L45985, petitioner China Air Lines, Ltd. (CAL) relied
on the following grounds:
1. A principal cannot be held liable,
much
less
solidarily,
for
the
negligence of the sub-agent, where
the former never participated in,
ratified or authorized the latter's act
or omission.
2. Dismissal of the cross-claim of
petitioner
against
the
private
respondents Philippine Air Lines, Inc.
and Roberto Espiritu will not prevent
the release of the petitioner from
liability to the private respondent
Pagsibigan.
3. The award of damages
unwarranted
both
legally
factually. 5

was
and

On their part, petitioners Philippine Air Lines, Inc.

(PAL) and Roberto Espiritu made the following
submissions in G.R. No. L-46036, to wit:
1. The respondent Court
erred in not holding that
China Air Lines, Ltd.,
principal,
is
solely
respondent Pagsibigan.

of Appeals
respondent
being the
liable
to

2. The respondent Court of Appeals

erred
in
awarding
respondent
Pagsibigan the sum of P20,000.00 as
nominal damages. 6
In G.R. No. L-45985, respondent Pagsibigan
contends, by way of refutation, that CAL's liability
is based on breach of contract of transportation
which was the proximate result of the negligence
and/or error committed by PAL and Espiritu; that
even assuming that CAL has no share in the
negligence of PAL and Espiritu, the liability of CAL
does not cease upon proof that it exercised all the
diligence of a good father of a family in the
selection and supervision of its employees.
Traversing such contentions, CAL argues that it can
not be made liable under Article 2180 of the Civil
Code because of the absence of employeremployee relationship between it and PAL.
On the other hand, in G.R. No. L-46036,
respondent Pagsibigan claims that PAL is liable

under Article 1909 of the said code which holds an

agent responsible not only for fraud but also for
negligence which shall be judged with more or less
rigor by the courts, according to whether the
agency was or was not for a compensation. PAL,
however, maintains that for lack of privity with
Pagsibigan, the suit for breach of contract should
have been directed against CAL.
What surfaces as a procedural maneuver taken by
respondent Pagsibigan in the course of the
proceedings in these cases has confused the real
issues in the controversy subject of both petitions
before us.
Respondent Pagsibigan has opted to seek redress
by pursuing two remedies at the same time, that
is, to enforce the civil liability of CAL for breach of
contract and, likewise, to recover from PAL and
Espiritu for tort or culpa aquiliana. What he has
overlooked is the proscription against double
recovery under Article 2177 of the Civil Code
which, while not preventing recourse to any
appropriate remedy, prevents double relief for a
single wrong.
To avoid inequitable effects under such confluence
of remedies, the true nature of the action instituted
by respondent Pagsibigan must be determined. A
careful perusal of the complaint of respondent
Pagsibigan will readily disclose that the allegations
thereof clearly and unmistakably make out a case
for a quasi-delict in this wise:
4. That at all pertinent times
particularly
in
June
of
1968,
defendant China Air Lines Ltd. has
been operating regular scheduled
flights to and from Manila, and has
offered accommodations thereon
through, among others, defendant
PAL as its authorized sales agent
and/or ticketing agent, such that
China Airlines Ltd. is here impleaded
as being the principal of defendant
PAL;
5. That at all pertinent times,
particularly
in
June
of
1968,
defendant Roberto Espiritu has been
in the employ of defendant PAL at its
sales counter at the PAL Manila Hotel
branch office and is here impleaded
as defendant as being the proximate
malfeasor in this cause of action;

52

xxx xxx xxx

12. That plaintiff missed the initial
Manila-Taipei leg (CI Flight 812) on
June 10, 1968, as set forth in his
ticket
(Annex
"A") solely
and
exclusively by reason of gross
incompetence
and
inexcusable
negligence amounting to bad faith of
defendant PAL acting, through its
sales representative, the defendant
Roberto Espiritu, of its Manila Hotel
branch office in the discharge of
its duties as sales agent and/or
ticketing agent for defendant China
Airlines Ltd. as principal.
13. That as a direct result of culpable
incompetence
and
negligence of
defendant Roberto Espiritu as sales
representative of defendant PAL,
plaintiff was unable to attend to
previously
scheduled
business
commitments in Taipei . . . resulting
in direct and indirect prejudice to
plaintiff that has yet to be fully
assessed; (Emphasis supplied) 7
xxx xxx xxx
Had the intention of respondent Pagsibigan been to
maintain an action based on breach of contract of
carriage, he could have sued CAL alone considering
that PAL is not a real party to the contract.
Moreover, in cases of such nature, the aggrieved
party does not have to prove that the common
carrier was at fault or was negligent. All he has to
prove is the existence of the contract and the fact
of its non-performance by the carrier. 8
The records disclose that the trial court
much into the issues of who was at fault,
decision is primarily anchored on its
findings regarding the civil liability
from culpa aquiliana of the erring party,
effect:

delved
and its
factual
arising
to this

Plaintiff said that the erroneous entry

in his ticket which made it appear
that his CAL flight of June 10, 1968
was to be at 5:20 in the afternoon
was due to the fault or negligence of
PAL's Roberto Espiritu, a codefendant herein, as well as the
employees of the defendant CAL. In
making CAL co-responsible, plaintiff

appears to rely on the doctrine that

the principal is responsible for the
act of an agent done within the
scope of the agency.
There is no proof extant that any of
the
employees
of
PAL
had
contributed to the erroneous entry in
plaintiffs PAL ticket for Taipei which
placed his time of departure to 5:20
o'clock in the afternoon of June 10,
1968.
Only
defendant
Roberto
Espiritu appears to be solely and
exclusively responsible for such error
and therefor the conclusion becomes
inevitable that CAL must be absolved
from any blame because defendant
Roberto Espiritu who committed the
error is not an employee or agent of
the defendant CAL. 9
It, therefore, becomes evident that respondent
Pagsibigan, having sensed that he can not hold
CAL liable on aquasi-delict, decided on appeal to
instead make a sinistral detour, so to speak, by
claiming that his action against CAL is based on a
breach of contract of carriage.
We can not permit respondent Pagsibigan to
change his theory at this stage; it would be unfair
to the adverse party who would have no more
opportunity to present further evidence, material
to the new theory, which it could have done had it
been aware earlier of the new theory at the time of
the hearing before the trial court. 10
There is indeed no basis whatsoever to hold CAL
liable
on
a quasi-delict or culpa
aquiliana. As
hereinbefore stated, the court a quo absolved
CAL of any liability for fault or negligence. This
finding was shared by respondent court when it
concluded that defendant CAL did not contribute to
the negligence committed by therein defendantsappellants PAL and Roberto Espiritu.
Respondent Pagsibigan insists that CAL was barred
from proving that it observed due diligence in the
selection and supervision of its employees. This
argument is obviously misplaced. CAL is not the
employer of PAL or Espiritu. In Duavit vs. The
Hon. Court of Appeals, et al., 11 we have stressed
the need of first establishing the existence of an
employer-employee
relationship
before
an
employer may be vicariously liable under Article
2180 of the Civil Code.

53

With respect to PAL and Espiritu, they disclaim any

liability on the theory that the former is merely an
agent of CAL and that the suit should have been
directed against CAL alone. There is no question
that the contractual relation between both airlines
is one of agency. Suffice it to say, however, that in
an action premised on the employee's negligence,
whereby respondent Pagsibigan seeks recovery for
the resulting damages from both PAL and Espiritu
without qualification, what is sought to be imposed
is the direct and primary liability of PAL as an
employer under said Article 2180.
When an injury is caused by the negligence of an
employee, there instantly arises a presumption of
law that there was negligence on the part of the
employer either in the selection of the employee or
in the supervision over him after such selection.
The presumption, however, may be rebutted by a
clear showing on the part of the employer that it
has exercised the care and diligence of a good
father of a family in the selection and supervision
of his employee. 12
Hence, to escape solidary liability for the quasidelict committed by Espiritu, it is imperative that
PAL must adduce sufficient proof that it exercised
such degree of care. PAL failed to overcome the
presumption. As found by respondent court, CAL
had revised its schedule of flights since April 1,
1968; that after the Civil Aeronautics Board had
approved the revised schedule of flights, PAL was
duly informed thereof and, in fact, PAL's Manila
Hotel branch office had been issuing and selling
tickets based on the revised time schedule before
June 10, 1968.
PAL's main defense is that it is only an agent. As a
general proposition, an agent who duly acts as
such is not personally liable to third persons.
However, there are admitted exceptions, as in this
case where the agent is being sued for damages
arising from a tort committed by his employee.
The respondent court found that the mistake
committed by Espiritu was done in good faith.
While there is no evidence that he acted with
malice, we can not entirely condone his actuations.
As an employee of PAL, the nature of his functions
requires him to observe for the protection of the
interests of another person that degree of care,
precaution and vigilance which the circumstances
justly demand. He committed a clear neglect of
duty.

Ergo, for his negligence, Espiritu is primarily liable

to respondent Pagsibigan under Article 2176 of the
Civil Code. For the failure of PAL to rebut the legal
presumption of negligence in the selection and
supervision of its employee, it is also primarily
liable under Article 2180 of the same code which
explicitly provides that employers shall be liable for
the damages caused by their employees and
household helpers acting within the scope of their
assigned tasks, even though the former are not
engaged in any business or industry.
Under the aforesaid provision, all that is required is
that the employee, by his negligence, committed
a quasi-delictwhich caused damage to another, and
this suffices to hold the employer primarily and
solidarity responsible for the tortious act of the
employee. PAL, however, can demand from
Espiritu reimbursement of the amount which it will
have to pay the offended party's claim. 13
On the issue of damages, we agree, except as to
the amount, that nominal damages may be
awarded to respondent Pagsibigan to vindicate the
legal wrong committed against him. It appearing
that the wrong committed was immediately
rectified when PAL promptly booked him for the
next morning's flight to Taipei where he arrived
before noon of June 11, 1968 and was able to
attend his scheduled conference, and considering
the concept and purpose of nominal damages, the
award of P20,000.00 must accordingly be reduced
to an amount equal or at least commensurate to
the injury sustained.
WHEREFORE, the decision of respondent Court of
Appeals is MODIFIED accordingly. China Air Lines,
Ltd. is hereby absolved from liability. Philippine Air
Lines, Inc. and Roberto Espiritu are declared jointly
and severally liable to pay the sum of P10,000.00
by way of nominal damages, without prejudice to
the right of Philippine Air Lines, Inc. to recover
from Roberto Espiritu reimbursement of the
damages that it may pay respondent Jose
Pagsibigan.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Sarmiento,
JJ., concur.

54

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. L-52245 January 22, 1980
PATRICIO DUMLAO, ROMEO B. IGOT, and
ALFREDO
SALAPANTAN,
JR., petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
Raul M. Gonzales for petitioners
Office of the Solicitor General for respondent.

MELENCIO-HERRERA, J:
This is a Petition for Prohibition with Preliminary
Injunction and/or Restraining Order filed by
petitioners, in their own behalf and all others
allegedly similarly situated, seeking to enjoin
respondent Commission on Elections (COMELEC)
from implementing certain provisions of Batas
Pambansa Big. 51, 52, and 53 for being
unconstitutional.
The Petition alleges that petitioner, Patricio
Dumlao, is a former Governor of Nueva Vizcaya,
who has filed his certificate of candidacy for said
position of Governor in the forthcoming elections of
January 30, 1980. Petitioner, Romeo B. Igot, is a
taxpayer, a qualified voter and a member of the
Bar who, as such, has taken his oath to support
the Constitution and obey the laws of the land.
Petitioner, Alfredo Salapantan, Jr., is also a
taxpayer, a qualified voter, and a resident of San
Miguel, Iloilo.
Petitioner Dumlao specifically questions the
constitutionality of section 4 of Batas Pambansa
Blg. 52 as discriminatory and contrary to the equal
protection and due process guarantees of the
Constitution. Said Section 4 provides:
Sec. 4. Special Disqualification in
addition to violation of section 10 of
Art. XI I-C of the Constitution and
disqualification mentioned in existing
laws, which are hereby declared as
disqualification for any of the elective

officials enumerated in section 1

hereof.
Any retired elective provincial city or
municipal official who has received
payment of the retirement benefits
to which he is entitled under the law,
and who shall have been 6,5 years of
age at the commencement of the
term of office to which he seeks to
be elected shall not be qualified to
run for the same elective local office
from which he has retired (Emphasis
supplied)
Petitioner Dumlao alleges that the aforecited
provision is directed insidiously against him, and
that the classification provided therein is based on
"purely arbitrary grounds and, therefore, class
legislation."
For their part, petitioners igot and Salapantan, Jr.
assail the validity of the following statutory
provisions:
Sec 7. Terms of Office Unless
sooner removed for cause, all local
elective
officials
hereinabove
mentioned shall hold office for a
term of six (6) years, which shall
commence on the first Monday of
March 1980.
.... (Batas Pambansa Blg. 51) Sec. 4.
Sec. 4. ...
Any person who has committed any
act of disloyalty to the State,
including
acts
amounting
to
subversion, insurrection, rebellion or
other similar crimes, shall not be
qualified to be a candidate for any of
the offices covered by this Act, or to
participate in any partisan political
activity therein:
provided that
a
judgment
of
conviction
for
any
of
the
aforementioned crimes shall be
conclusive evidence of such fact and
the filing of charges for the
commission of such crimes before a
civil court or military tribunal after

55

preliminary investigation shall be

prima fascie evidence of such fact.
... (Batas Pambansa
(Paragraphing
and
supplied).

Big. 52)
Emphasis

Section 1. Election of certain Local

Officials ... The election shall be
held on January 30, 1980. (Batas
Pambansa, Blg. 52)
Section 6. Election and Campaign
Period The election period shall be
fixed by the Commission on Elections
in accordance with Section 6, Art.
XII-C of the Constitution. The period
of campaign shall commence on
December 29, 1979 and terminate
on January 28, 1980. (ibid.)
In addition to the above-cited provisions,
petitioners Igot and Salapantan, Jr. also question
the accreditation of some political parties by
respondent COMELEC, as authorized by Batas
Pambansa Blg. 53, on the ground that it is contrary
to section 9(1)Art. XIIC of the Constitution, which
provides that a "bona fide candidate for any public
office shall be it. from any form of harassment and
discrimination. "The question of accreditation will
not be taken up in this case but in that of Bacalso,
et als. vs. COMELEC et als. No. L-52232) where the
issue has been squarely raised,
Petitioners then pray that the statutory provisions
they have challenged be declared null and void for
being violative of the Constitution.
I . The procedural Aspect
At the outset, it should be stated that this Petition
suffers from basic procedural infirmities, hence,
traditionally unacceptable for judicial resolution.
For one, there is a misjoinder of parties and
actions. Petitioner Dumlao's interest is alien to that
of petitioners Igot and Salapantan Petitioner
Dumlao does not join petitioners Igot and
Salapantan in the burden of their complaint, nor do
the latter join Dumlao in his. The respectively
contest completely different statutory provisions.
Petitioner Dumlao has joined this suit in his
individual capacity as a candidate. The action of
petitioners Igot and Salapantan is more in the
nature of a taxpayer's suit. Although petitioners
plead nine constraints as the reason of their joint

Petition, it would have required only a modicum

more of effort tor petitioner Dumlao, on one hand
said petitioners lgot and Salapantan, on the other,
to have filed separate suits, in the interest of
orderly procedure.
For another, there are standards that have to be
followed inthe exercise of the function of judicial
review, namely (1) the existence of an appropriate
case:, (2) an interest personal and substantial by
the party raising the constitutional question: (3)
the plea that the function be exercised at the
earliest opportunity and (4) the necessity that the
constiutional question be passed upon in order to
decide the case (People vs. Vera 65 Phil. 56
[1937]).
It may be conceded that the third requisite has
been complied with, which is, that the parties have
raised the issue of constitutionality early enough in
their pleadings.
This Petition, however, has fallen far short of the
other three criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is
limited to the determination of actual cases and
controversies.
Petitioner Dumlao assails the constitutionality of
the first paragraph of section 4 of Batas Pambansa
Blg. 52, quoted earlier, as being contrary to the
equal protection clause guaranteed by the
Constitution, and seeks to prohibit respondent
COMELEC from implementing said provision. Yet,
Dumlao has not been adversely affected by the
application of that provision. No petition seeking
Dumlao's disqualification has been filed before the
COMELEC. There is no ruling of that constitutional
body on the matter, which this Court is being
asked to review on Certiorari. His is a question
posed in the abstract, a hypothetical issue, and in
effect, a petition for an advisory opinion from this
Court to be rendered without the benefit of a
detailed factual record Petitioner Dumlao's case is
clearly within the primary jurisdiction (see
concurring Opinion of now Chief Justice Fernando
in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of
respondent COMELEC as provided for in section 2,
Art. XII-C, for the Constitution the pertinent
portion of which reads:

56

"Section 2. The Commission on Elections shall have

the following power and functions:
1) xxx
2) Be the sole judge of all contests
relating to the elections, returns
and qualifications of all members of
the National Assembly and elective
provincial
and
city
officials.
(Emphasis supplied)
The aforequoted provision must also be related to
section 11 of Art. XII-C, which provides:
Section 11. Any decision, order, or
ruling of the Commission may be
brought to the Supreme Court on
certiorari by the aggrieved party
within thirty days from his receipt of
a copy thereof.
B. Proper party.
The long-standing rule has been 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" (People vs.
Vera, supra).
In the case of petitioners Igot and Salapantan, it
was only during the hearing, not in their Petition,
that Igot is said to be a candidate for Councilor.
Even then, it cannot be denied that neither one has
been convicted nor charged with acts of disloyalty
to the State, nor disqualified from being candidates
for local elective positions. Neither one of them has
been calle ed to have been adversely affected by
the operation of the statutory provisions they assail
as unconstitutional Theirs is a generated grievance.
They have no personal nor substantial interest at
stake. In the absence of any litigate interest, they
can claim no locus standi in seeking judicial
redress.
It is true that petitioners Igot and Salapantan have
instituted this case as a taxpayer's suit, and that
the rule enunciated in People vs. Vera, above
stated, has been relaxed in Pascual vs. The
Secretary of Public Works (110 Phil. 331 [1960],
thus:
... it is well settled that the validity
of a statute may be contested only

by one who will sustain a direct

injury
in
consequence
of
its
enforcement. Yet, there are many
decisions nullifying at the instance of
taxpayers, laws providing for the
disbursement of public funds, upon
the theory that "the expenditure of
public funds, by an officer of the
State
for
the
purpose
of
administering an unconstitutional act
constitutes a misapplication of such
funds," which may be enjoined at the
request of a taxpayer.
In the same vein, it has been held:
In the determination of the degree of
interest essential to give the
requisite standing to attack the
constitutionality of a statute, the
general rule is that not only persons
individually
affected,
but
also
taxpayers have sufficient interest in
preventing the illegal expenditure of
moneys raised by taxation and they
may,
therefore,
question
the
constitutionality of statutes requiring
expenditure
of
public
moneys.
(Philippine Constitution Association,
Inc., et als., vs. Gimenez, et als., 15
SCRA 479 [1965]).
However, the statutory provisions questioned in
this case, namely, sec. 7, BP Blg. 51, and sections
4, 1, and 6 BP Blg. 52, do not directly involve the
disbursement of public funds. While, concededly,
the elections to be held involve the expenditure of
public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being
extracted and spent in violation of specific
constitutional protections against abuses of
legislative power" (Flast v. Cohen, 392 U.S., 83
[1960]), or that there is a misapplication of such
funds by respondent COMELEC (see Pascual vs.
Secretary of Public Works, 110 Phil. 331 [1960]),
or that public money is being deflected to any
improper purpose. Neither do petitioners seek to
restrain respondent from wasting public funds
through the enforcement of an invalid or
unconstitutional
law.
(Philippine
Constitution
Association vs. Mathay, 18 SCRA 300 [1966]),
citing Philippine
Constitution
Association
vs.
Gimenez, 15 SCRA 479 [1965]). Besides, the
institution of a taxpayer's suit, per se is no
assurance of judicial review. As held by this Court
in Tan vs. Macapagal (43 SCRA 677 [1972]),

57

speaking through our present Chief Justice, this

Court is vested with discretion as to whether or not
a taxpayer's suit should be entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a
wellsettled 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 in appropriate cases and is necessary to
a determination of the case; i.e., the issue of
constitutionality must be the very lis mota
presented."
We have already stated that, by the standards set
forth in People vs. Vera, the present is not an
"appropriate case" for either petitioner Dumlao or
for petitioners Igot and Salapantan. They are
actually without cause of action. It follows that the
necessity for resolving the issue of constitutionality
is absent, and procedural regularity would require
that this suit be dismissed.
II. The substantive viewpoint.
We have resolved, however, to rule squarely on
two of the challenged provisions, the Courts not
being entirely without discretion in the matter.
Thus, adherence to the strict procedural standard
was relaxed in Tinio vs. Mina(26 SCRA 512
[1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and
in Gonzalez vs. Comelec (27 SCRA 835 [1969]),
the Opinion in the Tinio and Gonzalez cases having
been penned by our present Chief Justice. The
reasons which have impelled us are the paramount
public interest involved and the proximity of the
elections which will be held only a few days hence.
Petitioner Dumlao's contention that section 4 of BP
Blg. 52 is discriminatory against him personally is
belied by the fact that several petitions for the
disqualification of other candidates for local
positions based on the challenged provision have
already been filed with the COMELEC (as listed in
p. 15, respondent's Comment). This tellingly
overthrows Dumlao's contention of intentional or
purposeful discrimination.
The assertion that Section 4 of BP Blg. 52 is
contrary to the safer guard of equal protection is
neither well taken. The constitutional guarantee of
equal protection of the laws is subject to rational
classification. If the groupings are based on
reasonable and real differentiations, one class can

be treated and regulated differently from another

class. For purposes of public service, employees 65
years of age, have been validly classified
differently from younger employees. Employees
attaining that age are subject to compulsory
retirement, while those of younger ages are not so
compulsorily retirable.
In respect of election to provincial, city, or
municipal positions, to require that candidates
should not be more than 65 years of age at the
time they assume office, if applicable to everyone,
might or might not be a reasonable classification
although, as the Solicitor General has intimated, a
good policy of the law would be to promote the
emergence of younger blood in our political elective
echelons. On the other hand, it might be that
persons more than 65 years old may also be good
elective local officials.
Coming now to the case of retirees. Retirement
from government service may or may not be a
reasonable disqualification for elective local
officials. For one thing, there can also be retirees
from government service at ages, say below 65. It
may neither be reasonable to disqualify retirees,
aged 65, for a 65 year old retiree could be a good
local official just like one, aged 65, who is not a
retiree.
But, in the case of a 65-year old elective local
official, who has retired from a provincial, city or
municipal office, there is reason to disqualify him
from running for the same office from which he had
retired, as provided for in the challenged provision.
The need for new blood assumes relevance. The
tiredness of the retiree for government work is
present, and what is emphatically significant is that
the retired employee has already declared himself
tired and unavailable for the same government
work, but, which, by virtue of a change of mind, he
would like to assume again. It is for this very
reason that inequality will neither result from the
application of the challenged provision. Just as that
provision does not deny equal protection neither
does it permit of such denial (see People vs. Vera,
65 Phil. 56 [1933]). Persons similarly situated are
sinlilarly treated.
In fine, it bears reiteration that the equal
protection clause does not forbid all legal
classification. What is proscribes is a classification
which is arbitrary and unreasonable. That
constitutional guarantee is not violated by a
reasonable classification based upon substantial
distinctions, where the classification is germane to

58

the purpose of the law and applies to all Chose

belonging to the same class (Peralta vs. Comelec,
82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA
606 [1966]; Rafael v. Embroidery and Apparel
Control and Inspection Board, 21 SCRA 336
[1967]; Inchong etc., et al. vs. Hernandez 101
Phil. 1155 [1957]). The purpose of the law is to
allow the emergence of younger blood in local
governments. The classification in question being
pursuant to that purpose, it cannot be considered
invalid "even it at times, it may be susceptible to
the objection that it is marred by theoretical
inconsistencies" (Chief Justice Fernando, The
Constitution of the Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein
is a showing of the clear invalidity of the
questioned provision. Well accepted is the rule that
to justify the nullification of a law, there must be a
clear and unequivocal breach of the Constitution,
not a doubtful and equivocal breach. Courts are
practically unanimous in the pronouncement that
laws shall not be declared invalid unless the conflict
with the Constitution is clear beyond reasonable
doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978],
citing Cooper vs. Telfair 4 Dall 14; Dodd, Cases on
Constitutional Law, 3rd ed. 1942, 56). Lastly, it is
within the compentence of the legislature to
prescribe qualifications for one who desires to
become a candidate for office provided they are
reasonable, as in this case.
In so far as the petition of Igot and Salapantan are
concerned, the second paragraph of section 4 of
Batas Pambansa Blg. 52, quoted in full earlier, and
which they challenge, may be divided in two parts.
The first provides:
a. judgment of conviction jor any of
the aforementioned crimes shall be
conclusive evidence of such fact ...
The supremacy of the Constitution stands out as
the cardinal principle. We are aware of the
presumption of validity that attaches to a
challenged statute, of the well-settled principle that
"all reasonable doubts should be resolved in favor
of constitutionality," and that Courts will not set
aside a statute as constitutionally defective "except
in a clear case." (People vs. Vera, supra). We are
constrained to hold that this is one such clear case.
Explicit is the constitutional provision that, in all
criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved,
and shall enjoy the right to be heard by himself

and counsel (Article IV, section 19, 1973

Constitution). An accusation, according to the
fundamental law, is not synonymous with guilt. The
challenged proviso contravenes the constitutional
presumption of innocence, as a candidate is
disqualified from running for public office on the
ground alone that charges have been filed against
him before a civil or military tribunal. It condemns
before one is fully heard. In ultimate effect, except
as to the degree of proof, no distinction is made
between a person convicted of acts of dislotalty
and one against whom charges have been filed for
such acts, as both of them would be ineligible to
run for public office. A person disqualified to run for
public office on the ground that charges have been
filed against him is virtually placed in the same
category as a person already convicted of a crime
with the penalty of arresto, which carries with it
the accessory penalty of suspension of the right to
hold office during the term of the sentence (Art.
44, Revised Penal Code).
And although the filing of charges is considered as
but prima facie evidence, and therefore, may be
rebutted, yet. there is "clear and present danger"
that because of the proximity of the elections, time
constraints will prevent one charged with acts of
disloyalty from offering contrary proof to overcome
the prima facie evidence against him.
Additionally, it is best that evidence pro and con of
acts of disloyalty be aired before the Courts rather
than before an administrative body such as the
COMELEC. A highly possible conflict of findings
between two government bodies, to the extreme
detriment of a person charged, will thereby be
avoided. Furthermore, a legislative/administrative
determination of guilt should not be allowed to be
substituted for a judicial determination.
Being infected with constitutional infirmity, a
partial declaration of nullity of only that
objectionable portion is mandated. It is separable
from the first portion of the second paragraph of
section 4 of Batas Pambansa Big. 52 which can
stand by itself.
WHEREFORE, 1) the first paragraph of section 4 of
Batas pambansa Bilang 52 is hereby declared valid.
Said paragraph reads:
SEC. 4. Special disqualification. In
addition to violation of Section 10 of
Article XII(C) of the Constitution and
disqualifications
mentioned
in
existing laws which are hereby

59

declared as disqualification for any of

the elective officials enumerated in
Section 1 hereof, any retired elective
provincial, city or municipal official,
who has received payment of the
retirement benefits to which he is
entitled under the law and who shall
have been 65 years of age at the
commencement of the term of office
to which he seeks to be elected, shall
not be qualified to run for the same
elective local office from which he
has retired.
2) That portion of the second
paragraph of section 4 of Batas
Pambansa Bilang 52 providing that
"... the filing of charges for the
commission of such crimes before a
civil court or military tribunal after
preliminary
investigation
shall
be prima facie evidence of such
fact", is hereby declared null and
void, for being violative of the
constitutional
presumption
of
innocence guaranteed to an accused.
SO ORDERED.
Makasiar, Antonio, Concepcion, Jr., Fernandez and
Guerrero, JJ., concur.
Fernando, C.J., concurs
separate opinion.

and

submits

brief

De Castro, J., abstain as far as petitioner Dumlao is

concerned.
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. 81958 June 30, 1988
PHILIPPINE
ASSOCIATION
OF
SERVICE
EXPORTERS,
INC., petitioner,
vs.
HON. FRANKLIN M. DRILON as Secretary of
Labor and Employment, and TOMAS D.
ACHACOSO, as Administrator of the Philippine
Overseas
Employment
Administration, respondents.

Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:
The petitioner, Philippine Association of Service
Exporters, Inc. (PASEI, for short), a firm "engaged
principally in the recruitment of Filipino workers,
male
and
female,
for
overseas
placement," 1 challenges the Constitutional validity
of Department Order No. 1, Series of 1988, of the
Department of Labor and Employment, in the
character of "GUIDELINES GOVERNING THE
TEMPORARY SUSPENSION OF DEPLOYMENT OF
FILIPINO DOMESTIC AND HOUSEHOLD WORKERS,"
in this petition for certiorari and prohibition.
Specifically,
the
measure
is
assailed
for
"discrimination against males or females;" 2 that it
"does not apply to all Filipino workers but only to
domestic helpers and females with similar
skills;" 3 and that it is violative of the right to
travel. It is held likewise to be an invalid exercise
of the lawmaking power, police power being
legislative, and not executive, in character.
In its supplement to the petition, PASEI invokes
Section 3, of Article XIII, of the Constitution,
providing for worker participation "in policy and
decision-making processes affecting their rights
and
benefits
as
may
be
provided
by
law." 4 Department Order No. 1, it is contended,
was passed in the absence of prior consultations. It
is claimed, finally, to be in violation of the Charter's
non-impairment clause, in addition to the "great
and irreparable injury" that PASEI members face
should the Order be further enforced.
On May 25, 1988, the Solicitor General, on behalf
of the respondents Secretary of Labor and
Administrator
of
the
Philippine
Overseas
Employment Administration, filed a Comment
informing the Court that on March 8, 1988, the
respondent Labor Secretary lifted the deployment
ban in the states of Iraq, Jordan, Qatar, Canada,
Hongkong, United States, Italy, Norway, Austria,
and Switzerland. * In submitting the validity of the
challenged "guidelines," the Solicitor General
invokes the police power of the Philippine State.
It is admitted that Department Order No. 1 is in
the nature of a police power measure. The only
question is whether or not it is valid under the
Constitution.

60

The concept of police power is well-established in

this jurisdiction. It has been defined as the "state
authority to enact legislation that may interfere
with personal liberty or property in order to
promote the general welfare." 5 As defined, it
consists of (1) an imposition of restraint upon
liberty or property, (2) in order to foster the
common good. It is not capable of an exact
definition but has been, purposely, veiled in
general terms to underscore its all-comprehensive
embrace.
"Its scope, ever-expanding to meet the exigencies
of the times, even to anticipate the future where it
could be done, provides enough room for an
efficient and flexible response to conditions and
circumstances
thus
assuring
the
greatest
benefits." 6
It finds no specific Constitutional grant for the plain
reason that it does not owe its origin to the
Charter. Along with the taxing power and eminent
domain, it is inborn in the very fact of statehood
and sovereignty. It is a fundamental attribute of
government that has enabled it to perform the
most vital functions of governance. Marshall, to
whom the expression has been credited, 7 refers to
it succinctly as the plenary power of the State "to
govern its citizens." 8
"The police power of the State ... is a power
coextensive with self- protection, and it is not
inaptly termed the "law of overwhelming
necessity." It may be said to be that inherent and
plenary power in the State which enables it to
prohibit all things hurtful to the comfort, safety,
and welfare of society." 9
It constitutes an implied limitation on the Bill of
Rights. According to Fernando, it is "rooted in the
conception that men in organizing the state and
imposing upon its government limitations to
safeguard constitutional rights did not intend
thereby to enable an individual citizen or a group
of citizens to obstruct unreasonably the enactment
of such salutary measures calculated to ensure
communal peace, safety, good order, and
welfare." 10 Significantly, the Bill of Rights itself
does not purport to be an absolute guaranty of
individual rights and liberties "Even liberty itself,
the greatest of all rights, is not unrestricted license
to act according to one's will." 11 It is subject to the
far more overriding demands and requirements of
the greater number.

Notwithstanding its extensive sweep, police power

is not without its own limitations. For all its
awesome consequences, it may not be exercised
arbitrarily or unreasonably. Otherwise, and in that
event, it defeats the purpose for which it is
exercised, that is, to advance the public good.
Thus, when the power is used to further private
interests at the expense of the citizenry, there is a
clear misuse of the power. 12
In the light of the foregoing, the petition must be
dismissed.
As a general rule, official acts enjoy a presumed
vahdity. 13 In the absence of clear and convincing
evidence to the contrary, the presumption logically
stands.
The petitioner has shown no satisfactory reason
why the contested measure should be nullified.
There is no question that Department Order No. 1
applies only to "female contract workers," 14 but it
does not thereby make an undue discrimination
between the sexes. It is well-settled that "equality
before the law" under the Constitution 15 does not
import a perfect Identity of rights among all men
and women. It admits of classifications, provided
that (1) such classifications rest on substantial
distinctions; (2) they are germane to the purposes
of the law; (3) they are not confined to existing
conditions; and (4) they apply equally to all
members of the same class. 16
The Court is satisfied that the classification madethe preference for female workers rests on
substantial distinctions.
As a matter of judicial notice, the Court is well
aware of the unhappy plight that has befallen our
female labor force abroad, especially domestic
servants, amid exploitative working conditions
marked by, in not a few cases, physical and
personal abuse. The sordid tales of maltreatment
suffered by migrant Filipina workers, even rape and
various forms of torture, confirmed by testimonies
of returning workers, are compelling motives for
urgent Government action. As precisely the
caretaker of Constitutional rights, the Court is
called upon to protect victims of exploitation. In
fulfilling that duty, the Court sustains the
Government's efforts.
The same, however, cannot be said of our male
workers. In the first place, there is no evidence
that, except perhaps for isolated instances, our
men abroad have been afflicted with an Identical

61

predicament. The petitioner has proffered no

argument that the Government should act similarly
with respect to male workers. The Court, of course,
is not impressing some male chauvinistic notion
that men are superior to women. What the Court is
saying is that it was largely a matter of evidence
(that women domestic workers are being ill-treated
abroad in massive instances) and not upon some
fanciful or arbitrary yardstick that the Government
acted in this case. It is evidence capable indeed of
unquestionable demonstration and evidence this
Court accepts. The Court cannot, however, say the
same thing as far as men are concerned. There is
simply no evidence to justify such an inference.
Suffice it to state, then, that insofar as
classifications are concerned, this Court is content
that distinctions are borne by the evidence.
Discrimination in this case is justified.
As we have furthermore indicated, executive
determinations are generally final on the Court.
Under a republican regime, it is the executive
branch that enforces policy. For their part, the
courts decide, in the proper cases, whether that
policy, or the manner by which it is implemented,
agrees with the Constitution or the laws, but it is
not for them to question its wisdom. As a co-equal
body, the judiciary has great respect for
determinations of the Chief Executive or his
subalterns, especially when the legislature itself
has specifically given them enough room on how
the law should be effectively enforced. In the case
at bar, there is no gainsaying the fact, and the
Court will deal with this at greater length shortly,
that Department Order No. 1 implements the rulemaking powers granted by the Labor Code. But
what should be noted is the fact that in spite of
such a fiction of finality, the Court is on its own
persuaded that prevailing conditions indeed call for
a deployment ban.
There is likewise no doubt that such a classification
is germane to the purpose behind the measure.
Unquestionably, it is the avowed objective of
Department Order No. 1 to "enhance the protection
for Filipino female overseas workers" 17 this Court
has no quarrel that in the midst of the terrible
mistreatment Filipina workers have suffered
abroad, a ban on deployment will be for their own
good and welfare.
The Order does not narrowly apply to existing
conditions. Rather, it is intended to apply
indefinitely so long as those conditions exist. This
is clear from the Order itself ("Pending review of
the administrative and legal measures, in the

Philippines and in the host countries . . ." 18),

meaning to say that should the authorities arrive at
a means impressed with a greater degree of
permanency, the ban shall be lifted. As a stop-gap
measure, it is possessed of a necessary
malleability, depending on the circumstances of
each case. Accordingly, it provides:
9. LIFTING OF SUSPENSION. The
Secretary of Labor and Employment
(DOLE) may, upon recommendation
of
the
Philippine
Overseas
Employment Administration (POEA),
lift the suspension in countries where
there are:
1.
Bilateral
agreements
or
understanding with the Philippines,
and/or,
2. Existing mechanisms providing for
sufficient safeguards to ensure the
welfare and protection of Filipino
workers. 19
The Court finds, finally, the impugned guidelines to
be applicable to all female domestic overseas
workers. That it does not apply to "all Filipina
workers" 20 is
not
an
argument
for
unconstitutionality. Had the ban been given
universal applicability, then it would have been
unreasonable and arbitrary. For obvious reasons,
not all of them are similarly circumstanced. What
the Constitution prohibits is the singling out of a
select person or group of persons within an
existing class, to the prejudice of such a person or
group or resulting in an unfair advantage to
another person or group of persons. To apply the
ban, say exclusively to workers deployed by A, but
not to those recruited by B, would obviously clash
with the equal protection clause of the Charter. It
would be a classic case of what Chase refers to as
a law that "takes property from A and gives it to
B." 21 It would be an unlawful invasion of property
rights and freedom of contract and needless to
state, an invalid act. 22 (Fernando says: "Where
the classification is based on such distinctions that
make a real difference as infancy, sex, and stage
of civilization of minority groups, the better rule, it
would seem, is to recognize its validity only if the
young, the women, and the cultural minorities are
singled out for favorable treatment. There would
be an element of unreasonableness if on the
contrary their status that calls for the law
ministering to their needs is made the basis of
discriminatory legislation against them. If such be

62

the case, it would be difficult to refute the

assertion of denial of equal protection." 23 In the
case at bar, the assailed Order clearly accords
protection to certain women workers, and not the
contrary.)
It is incorrect to say that Department Order No. 1
prescribes a total ban on overseas deployment.
From scattered provisions of the Order, it is
evident that such a total ban has hot been
contemplated. We quote:
5. AUTHORIZED DEPLOYMENT-The
deployment of domestic helpers and
workers of similar skills defined
herein to the following [sic] are
authorized under these guidelines
and
are
exempted
from
the
suspension.

worksite only if they are returning to

the same employer to finish an
existing
or
partially
served
employment contract. Those workers
returning to worksite to serve a new
employer shall be covered by the
suspension and the provision of
these guidelines.
xxx xxx xxx
9. LIFTING OF SUSPENSION-The
Secretary of Labor and Employment
(DOLE) may, upon recommendation
of
the
Philippine
Overseas
Employment Administration (POEA),
lift the suspension in countries where
there are:
1.
Bilateral
agreements
or
understanding with the
Philippines, and/or,

5.1
Hirings
by
immediate members of
the family of Heads of
State
and
Government;

2.
Existing
mechanisms providing
for
sufficient
safeguards to ensure
the
welfare
and
protection of Filipino
workers. 24

5.2
Hirings
by
Minister,
Deputy
Minister and the other
senior
government
officials; and
5.3 Hirings by senior
officials
of
the
diplomatic corps and
duly
accredited
international
organizations.

xxx xxx xxx

xxx xxx xxx

The consequence the deployment ban has on the

right to travel does not impair the right. The right
to travel is subject, among other things, to the
requirements of "public safety," "as may be
provided by law." 25 Department Order No. 1 is a
valid implementation of the Labor Code, in
particular, its basic policy to "afford protection to
labor," 26pursuant to the respondent Department of
Labor's rule-making authority vested in it by the
Labor Code. 27 The petitioner assumes that it is
unreasonable simply because of its impact on the
right to travel, but as we have stated, the right
itself is not absolute. The disputed Order is a valid
qualification thereto.

7.
VACATIONING
DOMESTIC
HELPERS
AND
WORKERS
OF
SIMILAR
SKILLS--Vacationing
domestic helpers and/or workers of
similar skills shall be allowed to
process with the POEA and leave for

Neither is there merit in the contention that

Department Order No. 1 constitutes an invalid
exercise of legislative power. It is true that police
power is the domain of the legislature, but it does
not mean that such an authority may not be
lawfully delegated. As we have mentioned, the

5.4
Hirings
by
employers in countries
with
whom
the
Philippines have [sic]
bilateral
labor
agreements
or
understanding.

63

Labor Code itself vests the Department of Labor

and Employment with rulemaking powers in the
enforcement whereof. 28
The petitioners's reliance on the Constitutional
guaranty of worker participation "in policy and
decision-making processes affecting their rights
and benefits" 29 is not well-taken. The right
granted by this provision, again, must submit to
the demands and necessities of the State's power
of regulation.
The Constitution declares that:
Sec. 3. The State shall afford full
protection to labor, local and
overseas,
organized
and
unorganized,
and
promote
full
employment
and
equality
of
employment opportunities for all. 30
"Protection to labor" does not signify the promotion
of employment alone. What concerns the
Constitution more paramountly is that such an
employment be above all, decent, just, and
humane. It is bad enough that the country has to
send its sons and daughters to strange lands
because it cannot satisfy their employment needs
at home. Under these circumstances, the
Government is duty-bound to insure that our
toiling expatriates have adequate protection,
personally and economically, while away from
home. In this case, the Government has evidence,
an evidence the petitioner cannot seriously dispute,
of the lack or inadequacy of such protection, and
as part of its duty, it has precisely ordered an
indefinite ban on deployment.
The Court finds furthermore that the Government
has not indiscriminately made use of its authority.
It is not contested that it has in fact removed the
prohibition with respect to certain countries as
manifested by the Solicitor General.
The non-impairment clause of the Constitution,
invoked by the petitioner, must yield to the loftier
purposes targetted by the Government. 31 Freedom
of contract and enterprise, like all other freedoms,
is not free from restrictions, more so in this
jurisdiction, where laissez faire has never been
fully accepted as a controlling economic way of life.
This Court understands the grave implications the
questioned Order has on the business of
recruitment. The concern of the Government,

however, is not necessarily to maintain profits of

business firms. In the ordinary sequence of events,
it is profits that suffer as a result of Government
regulation. The interest of the State is to provide a
decent living to its citizens. The Government has
convinced the Court in this case that this is its
intent. We do not find the impugned Order to be
tainted with a grave abuse of discretion to warrant
the extraordinary relief prayed for.
WHEREFORE, the petition is DISMISSED. No costs.
SO ORDERED.
Yap, C.J., Fernan, Narvasa, Melencio-Herrera,
Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Cortes and Grio-Aquino, JJ., concur.
Gutierrez, Jr. and Medialdea, JJ., are on leave.

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC

G.R. No. 113811 October 7, 1994

ISHMAEL
HIMAGAN, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and HON.
JUDGE HILARIO MAPAYO, RTC, Br. 11, Davao
City, respondents.
Victorio S. Advincula for petitioner.

KAPUNAN, J.:
Petitioner, a policeman assigned with the medical
company of the Philippine National Police Regional
Headquarters at Camp Catitigan, Davao City, was
implicated in the killing of Benjamin Machitar, Jr.
and the attempted murder of Bernabe Machitar.
After the informations for murder 1 and attempted
murder 2 were filed with the Regional Trial Court,
Branch 11, Davao City, on September 16, 1992,
the trial court issued an Order suspending
petitioner until the termination of the case on the

64

basis of Section 47, R.A. 6975, otherwise known as

Department of Interior and Local Government Act
of 1990, which provides:

Petitioner posits that as a member of the Philippine

National Police, under Sec. 91 of RA 6975 which
reads:

Sec. 47. Preventive Suspension

Pending Criminal Case. Upon the
filing of a complaint or information
sufficient in form and substance
against a member of the PNP for
grave felonies where the penalty
imposed by law is six (6) years and
one (1) day or more, the court shall
immediately suspend the accused
from office until the case is
terminated. Such case shall be
subject to continuous trial and shall
be terminated within ninety (90)
days from arraignment of the
accused (Emphasis ours).

Sec. 91. The Civil Service Law and

its
implementing
rules
and
regulations
shall
apply
to
all
personnel of the Department.

On October 11, 1993, petitioner filed a motion to

lift the order for his suspension, 3 relying on
Section 42 of P.D. 807 of the Civil Service Decree,
that his suspension should be limited to ninety (90)
days and, also, on our ruling in Deloso v.
Sandiganbayan, 4 and Layno
v.
Sandiganbayan. 5 In his order dated December 14,
1993 6 respondent judge denied the motion
pointing out that under Section 47 of R.A. 6975,
the accused shall be suspended from office until his
case is terminated. The motion for reconsideration
of
the
order
of
denial
was,
likewise,
denied. 7 Hence,
the
petition
for certiorari andmandamus to set aside the orders
of respondent Judge and to command him to lift
petitioner's preventive suspension.
We find the petition devoid of merit.
There is no question that the case of petitioner who
is charged with murder and attempted murder
under the Revised Penal Code falls squarely under
Sec. 47 of RA 6975 which specifically applies to
members of the PNP. In dispute however, is
whether the provision limits the period of
suspension to 90 days, considering that while the
first sentence of Sec. 47 provides that the accused
who is charged with grave felonies where the
penalty imposed is six (6) years and one (1) day
shall be suspended from office "until the case is
terminated", the second sentence of the same
section mandates that the case, which shall be
subject to continuous trial, shall be terminated
within 90 days from the arraignment of the
accused.

he is covered by the Civil Service Law, particularly

Sec. 42 of PD 807 of the Civil Service Decree,
which limits the maximum period of suspension to
ninety (90) days, thus:
Sec. 42. Lifting of Preventive
Suspension Pending Administrative
Investigation.

When
the
administrative case against the
officer or employee under preventive
suspension is not finally decided by
the disciplining authority within the
period of ninety (90) days after the
date of suspension of the respondent
who is not a presidential appointee,
the
respondent
shall
be
automatically
reinstated in
the
service; Provided, That when the
delay in the disposition of the case is
due to the fault, negligence or
petition of the respondent, the
period of delay shall not be counted
in
computing
the
period
of
suspension herein provided.
He claims that an imposition of preventive
suspension of over 90 days is contrary to the Civil
Service Law and would be a violation of his
constitutional right to equal protection of laws. He
further
asserts
that
the
requirements
in
Sec. 47 of R.A. 6975 that "the court shall
immediately suspend the accused from office until
the case is terminated" and the succeeding
sentence, "Such case shall be subject to continuous
trial and shall be terminated within ninety (90)
days from arraignment of the accused" are both
substantive and should be taken together to mean
that if the case is not terminated within 90 days,
the period of preventive suspension must be lifted
because of the command that the trial must be
terminated within ninety
(90) days
from
arraignment.
We disagree.
First. The language of the first sentence of Sec. 47
of R.A. 6975 is clear, plain and free from

65

ambiguity. It gives no other meaning than that the

suspension from office of the member of the PNP
charged with grave offense where the penalty is six
years and one day or more shall last until the
termination of the case. The suspension cannot be
lifted before the termination of the case. The
second sentence of the same Section providing
that the trial must be terminated within ninety (90)
days from arraignment does not qualify or limit the
first sentence. The two can stand independently of
each other. The first refers to the period of
suspension. The second deals with the time frame
within which the trial should be finished.
Suppose the trial is not terminated within ninety
days from arraignment, should the suspension of
accused be lifted? The answer is certainly no. While
the law uses the mandatory word "shall" before the
phrase "be terminated within ninety (90) days",
there is nothing in R.A. 6975 that suggests that the
preventive suspension of the accused will be lifted
if the trial is not terminated within that period.
Nonetheless, the Judge who fails to decide the case
within the period without justifiable reason may be
subject to administrative sanctions and, in
appropriate cases where the facts so warrant, to
criminal 8 or
civil
liability. 9 If
the
trial
is
unreasonably delayed without fault of the accused
such that he is deprived of his right to a speedy
trial, he is not without a remedy. He may ask for
the dismissal of the case. Should the court refuse
to dismiss the case, the accused can compel its
dismissal by certiorari, prohibition or mandamus,
or secure his liberty by habeas corpus. 10
Second. Petitioner misapplies Sec. 42 of PD 807. A
meticulous reading of the section clearly shows
that it refers to the lifting of preventive suspension
in pending administrative investigation, not in
criminal cases, as here. What is more, Section 42
expressly limits the period of
preventive
suspension to ninety (90) days. Sec. 91 of R.A.
6975 which states that "The Civil Service Law and
its implementing rules shall apply to all personnel
of the Department" simply means that the
provisions of the Civil Service Law and its
implementing rules and regulations are applicable
to members of the Philippine National Police insofar
as the provisions, rules and regulations are not
inconsistent
with
R.A. 6975. Certainly, Section 42 of the Civil Service
Decree which limits the preventive suspension to
ninety (90) days cannot apply to members of the
PNP because Sec. 47 of R.A. 6995 provides
differently, that is, the suspension where the

penalty imposed by law exceeds six (6) years shall

continue until the case is terminated.
Third. Petitioner's reliance on Layno and Deloso is
misplaced. These cases all stemmed from charges
in violation of R.A. 3019 (1060), otherwise known
as the Anti-Graft and Corrupt Practices Act which,
unlike
R.A. 6975, is silent on the duration of the
preventive suspension. Sec. 13 of R.A. 3019 reads
as follows:
Suspension and loss of benefits.
Any public officer against whom any
criminal prosecution under a valid
information under this Act or under
the provisions of the Revised Penal
Code on bribery is pending in court,
shall be suspended from office.
Should he be convicted by final
judgment,
he
shall
lose
all
retirement or gratuity benefits under
any law, but if he is acquitted, he
shall be entitled to reinstatement
and to the salaries and benefits
which he failed to receive during
suspension, unless in the meantime
administrative
proceedings
have
been filed against him.
In the case of Layno, the duly elected mayor of
Lianga, Surigao del Sur, was preventively
suspended after an information was filed against
him for offenses under R.A. 3019 (1060), the AntiGraft Corrupt Practices Act. He had been
suspended for four (4) months at the time he filed
a motion to lift his preventive suspension. We held
that his indefinite preventive suspension violated
the "equal protection clause" and shortened his
term of office. Thus:
2. Petitioner is a duly elected
municipal mayor of Lianga, Surigao
del Sur. His term of office does not
expire until 1986. Were it not for this
information and the suspension
decreed by the Sandiganbayan
according to the Anti-Graft and
Corrupt Practices Act, he would have
been all this while in the full
discharge of his functions as such
municipal mayor. He was elected
precisely to do so. As of October 26,
1983, he has been unable to. It is a
basic assumption of the electoral
process implicit in the right of

66

suffrage that the people are entitled

to the services of elective officials of
their choice. For misfeasance or
malfeasance, any of them could, of
course,
be
proceeded
against
administratively or, as in this
instance, criminally. In either case,
his culpability must be established.
Moreover, if there be a criminal
action, he is entitled to the
constitutional
presumption
of
innocence. A preventive suspension
may be justified. Its continuance,
however, for an unreasonable length
of time raises a due process
question. For even if thereafter he
were acquitted, in the meanwhile his
right to hold office had been
nullified. Clearly, there would be in
such a case an injustice suffered by
him. Nor is he the only victim. There
is injustice inflicted likewise on the
people
of
Lianga.
They
were
deprived of the services of the man
they had elected to serve as mayor.
In that sense, to paraphrase Justice
Cardozo, the protracted continuance
of this preventive suspension had
outrun the bounds of reason and
resulted in sheer oppression. A
denial of due process is thus quite
manifest. It is to avoid such an
unconstitutional application that the
order of suspension should be lifted.
3. Nor is it solely the denial of
procedural due process that is
apparent. There is likewise an equal
protection question. If the case
against
petitioner
Layno
were
administrative in character the Local
Government
Code
would
be
applicable. It is therein clearly
provided that
while
preventive
suspension is allowable for the
causes therein enumerated, there is
this emphatic limitation on the
duration thereof: "In all cases,
preventive suspension shall not
extend beyond sixty days after the
start of said suspension." It may be
recalled that the principle against
indefinite suspension applies equally
to national government officials. So
it was held in the leading case
of Garcia
v.
Hon.
Executive

Secretary. According to the opinion

of Justice Barrera: "To adopt the
theory of respondents that an officer
appointed by the President, facing
administrative charges, can be
preventively suspended indefinitely,
would be to countenance a situation
where the preventive suspension
can, in effect, be the penalty itself
without a finding of guilt after due
hearing, contrary to the express
mandate of the Constitution and the
Civil Service law." Further: "In the
guise of a preventive suspension, his
term of office could be shortened
and he could in effect, be removed
without a finding of a cause duly
established after due hearing, in
violation of the Constitution. Clearly
then, the policy of the law mandated
by the Constitution frowns at a
suspension of indefinite duration. In
this particular case, the mere fact
that petitioner is facing a charge
under the Anti-Graft and Corrupt
Practices Act does not justify a
different rule of law. To do so would
be to negate the safeguard of the
equal protection guarantee. 11
The case of Deloso, likewise, involved another
elective
official
who
was preventively suspended as provincial governor,
also under RA 3019 the Anti-Graft Law. This Court,
faced with similar factual circumstances as
in Layno, applied the ruling in the latter case "in
relation to the principles of due process and equal
protection."
It is readily apparent that Section 13 of R.A. 3019
upon which the preventive suspension of the
accused in Laynoand Deloso was based is silent
with respect to the duration of the preventive
suspension, such that the suspension of the
accused therein for a prolonged and unreasonable
length of time raised a due process question. Not
so in the instant case. Petitioner is charged with
murder under the Revised Penal Code and it is
undisputed that he falls squarely under Sec. 47 of
R.A. 6975 which categorically states that
his suspension shall last until the case is
terminated. The succeeding sentence of the same
section requires the case to be subjected to
continuous trial which shall be terminated within
ninety (90) days from arraignment of the accused.
As previously emphasized, nowhere in the law does

67

it say that after the lapse of the 90-day period for

trial, the preventive suspension should be lifted.
The law is clear, the ninety (90) days duration
applies to the trial of the case not to the
suspension. Nothing else should be read into the
law. When the words and phrases of the statute
are clear and unequivocal, their meaning
determined from the language employed and the
statute must be taken to mean exactly what it
says. 12
Fourth. From the deliberations of the Bicameral
Conference Committee on National Defense
relative to the bill that became R.A. 6975, the
meaning of Section 47 of R.A. 6975 insofar as the
period of suspension is concerned becomes all the
more clear. We quote:
So other than that in
that particular section,
ano
ba
itong
"Jurisdiction
in
Criminal Cases?" What
is this all about?
REP. ZAMORA. In case
they are charged with
crimes.
THE CHAIRMAN (SEN.
MACEDA).
Ah,
the
previous
one
is
administrative,
no.
Now, if it is charged
with a crime, regular
courts.
SEN. GONZALES. Ano,
the courts mismo ang
magsasabing . . .
THE CHAIRMAN (SEN.
MACEDA).
No,
the
jurisdiction.
REP. ZAMORA. The
jurisdiction if there is
robbery.
THE CHAIRMAN (SEN.
MACEDA).
Okay.
"Preventive
Suspension
Pending
Criminal Case. Upon
the
filing
of
a

complaint
or
informations sufficient
in form and substance
against a member of
the PNP for grave
felonies
where
the
penalty imposed by
law is six years and
one day or more, the
court
shall
immediately suspend
the accused from the
office until the case is
terminated."
REP. ALBANO. Where
are
we
now
Mr.
Chairman.
THE CHAIRMAN (SEN.
MACEDA).
Grave
felonies ito e. Six
years and one day or
more.
SEN. SAGUISAG. Kung
five
years
and
litigation ng Supreme
Court, ganoon ba and .
. .?
THE CHAIRMAN (SEN.
MACEDA). Hindi, dahil
iyong
iba
panay
disciplinary iyon e.
SEN.
Anong
Rene?

PIMENTEL.
page
iyan,

THE CHAIRMAN (SEN.

MACEDA). Page 29
Preventive
Suspension.
REP. GUTANG. Ang
complaint kasi ng mga
tao, pagka may pulis
na may criminal case
at may baril pa rin at
nag-uuniforme, hindi
magandang tingnan e.
So parang natatakot
iyong mga witnesses.

68

SEN.
GONZALES.
Anyway, kung maexempt na rito naman
siya e.

Supreme
trial.

REP.
GUTANG.
Mayroong entitlement
to reinstatement and
pay. . . .

REP. ALBANO. The trial

must be done within
ninety days,

xxx xxx xxx

SEN. PIMENTEL. Dito
sa
"Preventive
Suspension
Pending
Criminal Case." Okay
ito but I think we
should also mandate
the early termination
of
the case. Ibig
sabihin, okay, hindi ba
"the suspension of the
accused from office
until
the
case
is
terminated?"
Alam
naman
natin
ang
takbo ng mga kaso rito
sa ating bansa e.
REP. ZAMORA. Twenty
days, okay na.
SEN. PIMENTEL. Hindi,
and ibig kong sabihin,
let us just assume that
a case can be, as Rene
pointed out, can run to
six
years
bago
ma-terminate,
sometimes ten years
pa nga e. Okay, but
maybe
we
should
mandate. . .
REP.
ZAMORA.
Continuous hearing.
SEN. PIMENTEL. Not
only that, but the case
must be terminated
within a period.
REP. ALBANO. Ninety
days
na
ho
sa

Court

the

SEN. PIMENTEL. Ha?

SEN. PIMENTEL. Ang

ibig kong sabihin kung
maari sanang ilagay
rito that the case shall
also be terminated in
one year from the time
. . . aywan ko kung
kaya
nating
gawin
iyon.
REP. ALBANO.
solution,
Chairman.

One
Mr.

THE CHAIRMAN (SEN.

MACEDA).
Criminal
case? Hindi ba that
has all been held as
directory even if you
put it in the law?
SEN.
PIMENTEL.
I
know, but, iyon na
nga, we are looking at
some solution to a
particular situation.
SEN. ANGARA. Let's
have
continuous
hearing
and
be
terminated not later
than ninety days.
REP. ZAMORA. Ang
point ni Ernie, that's
really
only
the
directory. All of these,
well, looks exactly the
same thing.
SEN. ANGARA. No, but
at
least,
we
will
shorten it up in a case
like this. We are really
keen on having it
quick, swift.

69

SEN. PIMENTEL. Swift

justice.
REP.
ALBANO.
Chairman.

robbery. That's why it

is in that context
that there
is
a
difference between a
purely anti-graft case
and a criminal case
which could be a
serious case since it is
six years and one day
or more, so it must be
already a grave felony.

Mr.

THE CHAIRMAN. (SEN.

MACEDA). Yes.
REP.
ALBANO.
Following the Veloso
case
in
Anti-graft
cases
before
the
Sandiganbayan,
the
preventive suspension
is only ninety days. In
no case shall it go
beyond ninety days
which can also be
applicable
here
because this is a
preventive suspension.
SEN. PIMENTEL.
because
you
legislate at least.

No,
can

SEN. SAGUISAG. But

then the case may be
anti-graft ha. The case
filed
against
a
policeman
may
be
anti-graft in nature. . .
SEN.
PIMENTEL.
Correct, correct, but is
that a constitutional
provision? Is it?
REP. ALBANO. No, but
as
a
standard
procedure.
SEN. PIMENTEL. Then
you can legislate.
THE CHAIRMAN (SEN.
MACEDA). No, because
this
particular
provision
is
for
criminal cases. I know
anti-graft is a criminal
case but here we are
talking, let's say, of
murder, rape, treason,

xxx xxx xxx

REP. ALBANO. . . .
What I mean to say is,
preventive suspension,
we
can
use
the
Veloso case.
THE CHAIRMAN (SEN.
MACEDA). No, that's
too short, that's what I
am saying. The feeling
here is, for policeman,
we have to be stricter
especially if it is a
criminal case.
What Rene is just
trying to say is, he is
agreeable
that
the
suspension is until the
case is terminated, but
he just wants some
administrative
balancing to expedite
it. So let us study
what kind of language
could be done along
that line. So just on
the
National
Police
Commission . . .
SEN. ANGARA. Can I
suggest a language
that may reflect. . .
THE CHAIRMAN (SEN.
MACEDA).
Okay,
please.
SEN. ANGARA. "Such
case shall be subject

70

to continuous trial and

be
terminated
not
later than . . ."
whatever we agree.
THE CHAIRMAN (SEN.
MACEDA). Okay, so
let's study that.
So if there are any
further
amendments
to Chapter 2 on the
National
Police
Commission. . . . . . 13
The foregoing discussions reveal the legislative
intent to place on preventive suspension a member
of the PNP charged with grave felonies where the
penalty imposed by law exceeds six years of
imprisonment and which suspension continues until
the case against him is terminated.

classification is based on real and substantial

differences; 15 is germane to the purpose of the
law; 16 applies to all members of the same
class; 17 and applies to current as well as future
conditions, 18 the classification may not be
impugned as violating the Constitution's equal
protection guarantee. A distinction based on real
and reasonable considerations related to a proper
legislative purpose such as that which exists here
is neither unreasonable, capricious nor unfounded.
ACCORDINGLY, the petition is hereby DISMISSED.
SO ORDERED.
EN BANC
ELEAZAR P. QUINTO and
GERINO A. TOLENTINO, JR.,
Petitioners,

The reason why members of the PNP are treated

differently from the other classes of persons
charged criminally or administratively insofar as
the application of the rule on preventive
suspension is concerned is that policemen carry
weapons and the badge of the law which can be
used to harass or intimidate witnesses against
them, as succinctly brought out in the legislative
discussions.
If a suspended policeman criminally charged with a
serious offense is reinstated to his post while his
case is pending, his victim and the witnesses
against him are obviously exposed to constant
threat and thus easily cowed to silence by the
mere fact that the accused is in uniform and
armed. The imposition of preventive suspension for
over
90
days
under
Section
47
of
R.A. 6975 does not violate the suspended
policeman's constitutional right to equal protection
of the laws.
The equal protection clause exists to prevent
undue favor or privilege. It is intended to eliminate
discrimination and oppression based on inequality.
Recognizing the existence of real differences
among men, the equal protection clause does not
demand absolute equality. It merely requires that
all persons shall be treated alike, under like
circumstances and conditions both as to the
privileges
conferred
and
liabilities
enforced. 14 Thus, the equal protection clause does
not absolutely forbid classifications, such as the
one which exists in the instant case. If the

- versus -

COMMISSION ON ELECTIONS,
Respondent.

G.R. No. 18
Present:

PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MO
CHICO-NAZ
VELASCO, J
NACHURA,
LEONARDOBRION,
PERALTA,
BERSAMIN,
DEL CASTIL
ABAD, and
VILLARAMA

Promulgate

December 1
x----------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
In our predisposition to discover the
original intent of a statute, courts become the
unfeeling pillars of the status quo. Little do we
realize that statutes or even constitutions are
bundles of compromises thrown our way by their
framers. Unless we exercise vigilance, the statute
may already be out of tune and irrelevant to our

71

day.[1] It is in this light that we should address the

instant case.
Before the Court is a petition for prohibition
and certiorari, with prayer for the issuance of a
temporary restraining order and a writ of
preliminary injunction, assailing Section 4(a) of
Resolution No. 8678 of the Commission on
Elections (COMELEC). In view of pressing
contemporary events, the petition begs for
immediate resolution.
The Antecedents
This controversy actually stems from the
law authorizing the COMELEC to use an automated
election system (AES).
On December 22, 1997, Congress enacted
Republic Act (R.A.) No. 8436, entitled AN ACT
AUTHORIZING THE COMMISSION ON ELECTIONS
TO USE AN AUTOMATED ELECTION SYSTEM IN THE
MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS
AND IN SUBSEQUENT NATIONAL AND LOCAL
ELECTORAL
EXERCISES,
PROVIDING
FUNDS
THEREFOR AND FOR OTHER PURPOSES. Section
11 thereof reads:
SEC. 11. Official Ballot.The
Commission shall prescribe the size
and form of the official ballot which
shall contain the titles of the
positions to be filled and/or the
propositions to be voted upon in an
initiative, referendum or plebiscite.
Under each position, the names of
candidates
shall
be
arranged
alphabetically
by
surname and
uniformly printed using the same
type size. A fixed space where the
chairman of the Board of Election
inspectors
shall
affix
his/her
signature to authenticate the official
ballot shall be provided.

or local, running for any office

other than the one which he/she
is holding in a permanent
capacity, except for president
and vice president, shall be
deemed resigned only upon the
start of the campaign period
corresponding to the position for
which
he/she
is
running: Provided, further, That,
unlawful
acts
or
omissions
applicable to a candidate shall
take effect upon the start of the
aforesaid
campaign
period: Provided, finally, That, for
purposes of the May 11, 1998
elections, the deadline for filing of
the certificate of candidacy for the
positions
of
President,
Vice
President, Senators and candidates
under the Party-List System as well
as petitions for registration and/or
manifestation to participate in the
Party-List System shall be on
February 9, 1998 while the deadline
for the filing of certificate of
candidacy for other positions shall be
on March 27, 1998.

Both sides of the ballots may

be used when necessary.

The official ballots shall be

printed by the National Printing
Office and/or the Bangko Sentral ng
Pilipinas at the price comparable with
that of private printers under proper
security
measures
which
the
Commission
shall
adopt.
The
Commission
may
contract
the
services of private printers upon
certification by the National Printing
Office/Bangko
Sentral
ng
Pilipinas that it cannot meet the
printing requirements. Accredited
political
parties
and
deputized
citizens' arms of the Commission
may assign watchers in the printing,
storage and distribution of official
ballots.

For
this
purpose,
the
deadline
for
the
filing
of
certificate of candidacy/petition
for registration/manifestation to
participate in the election shall
not be later than one hundred
twenty (120) days before the
elections: Provided, That,
any
elective official, whether national

To prevent the use of fake

ballots, the Commission through the
Committee shall ensure that the
serial number on the ballot stub shall
be printed in magnetic ink that shall
be easily detectable by inexpensive
hardware and shall be impossible to
reproduce
on
a
photocopying
machine and that identification

72

marks, magnetic strips, bar codes

and other technical and security
markings, are provided on the ballot.
The official ballots shall be
printed and distributed to each
city/municipality at the rate of one
(1) ballot for every registered voter
with a provision of additional four (4)
ballots per precinct.[2]
Almost a decade thereafter, Congress
amended the law on January 23, 2007 by enacting
R.A. No. 9369, entitled AN ACT AMENDING
REPUBLIC ACT NO. 8436, ENTITLED AN ACT
AUTHORIZING THE COMMISSION ON ELECTIONS
TO USE AN AUTOMATED ELECTION SYSTEM IN THE
MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS
AND IN SUBSEQUENT NATIONAL AND LOCAL
ELECTORAL
EXERCISES,
TO
ENCOURAGE
TRANSPARENCY, CREDIBILITY, FAIRNESS AND
ACCURACY OF ELECTIONS, AMENDING FOR THE
PURPOSE BATAS PAMPANSA BLG. 881, AS
AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER
RELATED ELECTION LAWS, PROVIDING FUNDS
THEREFOR AND FOR OTHER PURPOSES. Section
13 of the amendatory law modified Section 11 of
R.A. No. 8436, thus:
SEC.
13. Section
11
of
Republic Act No. 8436 is hereby
amended to read as follows:
Section 15. Official Ballot.
The Commission shall prescribe the
format of the electronic display
and/or the size and form of the
official ballot, which shall contain the
titles of the position to be filled
and/or the propositions to be voted
upon in an initiative, referendum or
plebiscite.
Where
practicable,
electronic
displays
must
be
constructed to present the names of
all candidates for the same position
in the same page or screen,
otherwise, the electronic displays
must be constructed to present the
entire ballot to the voter, in a series
of sequential pages, and to ensure
that the voter sees all of the ballot
options
on
all
pages
before
completing his or her vote and to
allow the voter to review and change
all ballot choices prior to completing
and casting his or her ballot. Under

each position to be filled, the names

of candidates shall be arranged
alphabetically
by
surname and
uniformly indicated using the same
type size. The maiden or married
name shall be listed in the official
ballot, as preferred by the female
candidate. Under each proposition to
be vote upon, the choices should be
uniformly indicated using the same
font and size.
A fixed space where the
chairman of the board of election
inspectors
shall
affix
his/her
signature to authenticate the official
ballot shall be provided.
For this purpose, the
Commission
shall
set
the
deadline
for
the
filing
of
certificate of candidacy/petition
of registration/manifestation to
participate in the election. Any
person who files his certificate of
candidacy within this period shall
only
be
considered
as
a
candidate at the start of the
campaign period for which he
filed
his
certificate
of
candidacy: Provided,
That,
unlawful
acts
or
omissions
applicable to a candidate shall
take effect only upon the start of
the
aforesaid
campaign
period: Provided, finally, That
any person holding a public
appointive office or position,
including active members of the
armed forces, and officers and
employees in government-owned
or -controlled corporations, shall
be considered ipso facto resigned
from his/her office and must
vacate the same at the start of
the day of the filing of his/her
certificate of candidacy.

Political parties may hold

political conventions to nominate
their official candidates within thirty
(30) days before the start of the
period for filing a certificate of
candidacy.

73

With respect to a paperbased election system, the official

ballots shall be printed by the
National
Printing
Office
and/or
the Bangko Sentral ng Pilipinas at
the price comparable with that of
private
printers
under
proper
security
measures
which
the
Commission
shall
adopt.
The
Commission
may
contract
the
services of private printers upon
certification by the National Printing
Office/Bangko
Sentral
ng
Pilipinas that it cannot meet the
printing requirements. Accredited
political
parties
and
deputized
citizens arms of the Commission
shall assign watchers in the printing,
storage and distribution of official
ballots.
To prevent the use of fake
ballots, the Commission through the
Committee shall ensure that the
necessary safeguards, such as, but
not limited to, bar codes, holograms,
color shifting ink, microprinting, are
provided on the ballot.
The official ballots shall be
printed and distributed to each
city/municipality at the rate of one
ballot for every registered voter with
a provision of additional three ballots
per precinct.[3]
Pursuant to its constitutional mandate to
enforce and administer election laws, COMELEC
issued Resolution No. 8678,[4] the Guidelines on
the Filing of Certificates of Candidacy (CoC) and
Nomination of Official Candidates of Registered
Political Parties in Connection with the May 10,
2010 National and Local Elections. Sections 4 and 5
of Resolution No. 8678 provide:
SEC. 4. Effects
of
Filing
Certificates of Candidacy.a) Any
person holding a public appointive
office or position including active
members of the Armed Forces of the
Philippines, and other officers and
employees in government-owned or
controlled corporations, shall be
considered ipso facto resigned from

his office upon the filing of his

certificate of candidacy.
b) Any person holding an
elective office or position shall not be
considered resigned upon the filing
of his certificate of candidacy for the
same or any other elective office or
position.
SEC.
5. Period
for
filing
Certificate
of
Candidacy.The
certificate of candidacy shall be filed
on regular days, from November 20
to 30, 2009, during office hours,
except on the last day, which shall
be until midnight.
Alarmed that they will be deemed ipso
facto resigned from their offices the moment they
file their CoCs, petitioners Eleazar P. Quinto and
Gerino A. Tolentino, Jr., who hold appointive
positions in the government and who intend to run
in the coming elections,[5] filed the instant petition
for
prohibition
and certiorari, seeking
the
declaration of the afore-quoted Section 4(a) of
Resolution No. 8678 as null and void.
The Petitioners Contention
Petitioners contend that the COMELEC
gravely abused its discretion when it issued the
assailed Resolution. They aver that the advance
filing of CoCs for the 2010 elections is intended
merely for the purpose of early printing of the
official ballots in order to cope with time
limitations. Such advance filing does not
automatically make the person who filed the CoC a
candidate at the moment of filing. In fact, the law
considers him a candidate only at the start of the
campaign period. Petitioners then assert that this
being so, they should not be deemed ipso
facto resigned from their government offices when
they file their CoCs, because at such time they are
not yet treated by law as candidates. They should
be considered resigned from their respective offices
only at the start of the campaign period when they
are, by law, already considered as candidates.[6]
Petitioners also contend that Section 13 of
R.A. No. 9369, the basis of the assailed COMELEC
resolution, contains two conflicting provisions.
These must be harmonized or reconciled to give
effect to both and to arrive at a declaration that
they are notipso facto resigned from their positions
upon the filing of their CoCs.[7]

74

Petitioners further posit that the provision

considering them as ipso facto resigned from office
upon the filing of their CoCs is discriminatory and
violates the equal protection clause in the
Constitution.[8]
The Respondents Arguments
On the procedural aspect of the petition, the
Office of the Solicitor General (OSG), representing
respondent COMELEC, argues that petitioners have
no legal standing to institute the suit. Petitioners
have not yet filed their CoCs, hence, they are not
yet affected by the assailed provision in the
COMELEC resolution. The OSG further claims that
the petition is premature or unripe for judicial
determination. Petitioners have admitted that they
are merely planning to file their CoCs for the
coming 2010 elections. Their interest in the
present controversy is thus merely speculative and
contingent upon the filing of the same. The OSG
likewise contends that petitioners availed of the
wrong remedy. They are questioning an issuance
of the COMELEC made in the exercise of the latters
rule-making power. Certiorari under Rule 65 is
then an improper remedy.[9]
On the substantive aspect, the OSG
maintains that the COMELEC did not gravely abuse
its discretion in phrasing Section 4(a) of Resolution
No. 8678 for it merely copied what is in the law.
The OSG, however, agrees with petitioners that
there is a conflict in Section 13 of R.A. No. 9369
that should be resolved. According to the OSG,
there seems to be no basis to consider appointive
officials as ipso facto resigned and to require them
to vacate their positions on the same day that they
file their CoCs, because they are not yet considered
as candidates at that time. Further, this deemed
resigned provision existed in Batas Pambansa
Bilang (B.P.Blg.) 881, and no longer finds a place
in our present election laws with the innovations
brought about by the automated system.[10]
Our Ruling
I.
At first glance, the petition suffers from an
incipient procedural defect. What petitioners assail
in their petition is a resolution issued by the
COMELEC in the exercise of its quasi-legislative
power. Certiorari under Rule 65, in relation to Rule
64, cannot be availed of, because it is a remedy to
question decisions, resolutions and issuances made
in the exercise of a judicial or quasi-judicial
function.[11] Prohibition is also an inappropriate

remedy, because what petitioners actually seek

from the Court is a determination of the proper
construction of a statute and a declaration of their
rights thereunder. Obviously, their petition is one
for declaratory relief,[12] over which this Court does
not exercise original jurisdiction.[13]
However, petitioners raise a challenge on
the constitutionality of the questioned provisions of
both the COMELEC resolution and the law. Given
this scenario, the Court may step in and resolve
the instant petition.
The transcendental nature and paramount
importance of the issues raised and the compelling
state interest involved in their early resolutionthe
period for the filing of CoCs for the 2010 elections
has already started and hundreds of civil servants
intending to run for elective offices are to lose their
employment, thereby causing imminent and
irreparable damage to their means of livelihood
and, at the same time, crippling the governments
manpowerfurther dictate that the Court must, for
propriety, if only from a sense of obligation,
entertain the petition so as to expedite the
adjudication of all, especially the constitutional,
issues.
In any event, the Court has ample authority
to set aside errors of practice or technicalities of
procedure and resolve the merits of a case.
Repeatedly stressed in our prior decisions is the
principle that the Rules were promulgated to
provide guidelines for the orderly administration of
justice, not to shackle the hand that dispenses it.
Otherwise, the courts would be consigned to being
mere slaves to technical rules, deprived of their
judicial discretion.[14]
II.
To put things in their proper perspective, it
is imperative that we trace the brief history of the
assailed provision. Section 4(a) of COMELEC
Resolution No. 8678 is a reproduction of the
second proviso in the third paragraph of Section 13
of R.A. No. 9369, which for ready reference is
quoted as follows:
For
this
purpose,
the
Commission shall set the deadline for
the
filing
of
certificate
of
candidacy/petition
for
registration/manifestation
to
participate in the election. Any
person who files his certificate of
candidacy within this period shall

75

only be considered as a candidate at

the start of the campaign period for
which he filed his certificate of
candidacy: Provided, That, unlawful
acts or omissions applicable to a
candidate shall take effect only upon
the start of the aforesaid campaign
period: Provided, finally, That any
person
holding
a
public
appointive office or position,
including active members of the
armed forces, and officers and
employees in government-owned
or -controlled corporations, shall
be considered ipso facto resigned
from his/her office and must
vacate the same at the start of
the day of the filing of his/her
certificate of candidacy.[15]
Notably, this proviso is not present in
Section 11 of R.A. No. 8436, the law amended by
R.A. No. 9369. The proviso was lifted from Section
66 of B.P. Blg. 881 or the Omnibus Election Code
(OEC) of the Philippines, which reads:
Sec. 66. Candidates holding
appointive office or position.Any
person holding a public appointive
office or position, including active
members of the Armed Forces of
the Philippines, and officers and
employees in government-owned or
controlled corporations, shall be
consideredipso facto resigned from
his office upon the filing of his
certificate of candidacy.
It may be recalledin inverse chronology
that earlier, Presidential Decree No. 1296, or the
1978 Election Code, contained a similar provision,
thus
SECTION
29. Candidates
holding appointive office or position.
Every person holding a public
appointive
office
or
position,
including active members of the
Armed Forces of the Philippines, and
officers
and
employees
in
government-owned
or
controlled
corporations, shall ipso facto cease
in his office or position on the date
he files his certificate of candidacy.
Members of the Cabinet shall

continue in the offices they presently

hold notwithstanding the filing of
certificate of candidacy, subject to
the pleasure of the President of
the Philippines.
Much earlier, R.A. No. 6388, or the Election
Code of 1971, likewise stated in its Section 23 the
following:
SECTION
23. Candidates
Holding Appointive Office or Position.
Every person holding a public
appointive
office
or
position,
including active members of the
Armed Forces of the Philippines and
every
officer
or
employee
in
government-owned
or
controlled
corporations, shall ipso facto cease
in his office or position on the date
he files his certificate of candidacy:
Provided, That the filing of a
certificate of candidacy shall not
affect whatever civil, criminal or
administrative liabilities which he
may have incurred.
Going further back in history, R.A. No. 180,
or the Revised Election Code approved on June 21,
1947, also provided that
SECTION
26. Automatic
cessation of appointive officers and
employees who are candidates.
Every person holding a public
appointive
office
or
position
shall ipso facto cease in his office or
position on the date he files his
certificate of candidacy.
During
the
Commonwealth
era,
Commonwealth Act (C.A.) No. 725, entitled AN
ACT TO PROVIDE FOR THE NEXT ELECTION FOR
PRESIDENT AND VICE-PRESIDENT
OF THE
PHILIPPINES, SENATORS AND MEMBERS OF THE
HOUSE
OF
REPRESENTATIVES,
AND
APPROPRIATING
THE
NECESSARY
FUNDS
THEREFOR, approved on January 5, 1946,
contained, in the last paragraph of its Section 2,
the following:
A person occupying any civil office
by appointment in the government
or any of its political subdivisions or
agencies or government-owned or
controlled
corporations,
whether

76

such office by appointive or elective,

shall be considered to have resigned
from such office from the moment of
the filing of such certificate of
candidacy.
Significantly, however, C.A. No. 666, entitled AN
ACT TO PROVIDE FOR THE FIRST ELECTION FOR
PRESIDENT AND VICE-PRESIDENT
OF THE
PHILIPPINES, SENATORS, AND MEMBERS OF THE
HOUSE OF REPRESENTATIVES, UNDER THE
CONSTITUTION
AND
THE
AMENDMENTS
THEREOF, enacted without executive approval on
June 22, 1941, the precursor of C.A. No. 725, only
provided for automatic resignation of elective, but
not appointive, officials.
Nevertheless, C.A. No. 357, or the Election
Code approved on August 22, 1938, had, in its
Section 22, the same verbatim provision as Section
26 of R.A. No. 180.
The earliest recorded Philippine law on the
subject is Act No. 1582, or the Election Law
enacted by the Philippine Commission in 1907, the
last paragraph of Section 29 of which reads:
Sec.
29. Penalties
officers. x x x.

upon

No public officer shall offer

himself as a candidate for election,
nor shall he be eligible during the
time that he holds said public office
to election, at any municipal,
provincial or Assembly election,
except for reelection to the position
which he may be holding, and no
judge of the Court of First Instance,
justice of the peace, provincial fiscal,
or officer or employee of the Bureau
of Constabulary or of the Bureau of
Education shall aid any candidate or
influence in any manner or take any
part in any municipal, provincial, or
Assembly election under penalty of
being deprived of his office and
being disqualified to hold any public
office whatever for a term of five
years: Provided, however, That the
foregoing provisions shall not be
construed to deprive any person
otherwise qualified of the right to
vote at any election.

From this brief historical excursion, it may

be gleaned that the second proviso in the third
paragraph of Section 13 of R.A. No. 9369that any
person holding a public appointive office or
position, including active members of the armed
forces, and officers, and employees in governmentowned or controlled corporations, shall be
considered ipso facto resigned from his/her office
and must vacate the same at the start of the day
of the filing of his/her certificate of candidacy
traces its roots to the period of the American
occupation.
In fact, during the deliberations of Senate
Bill No. 2231, the bill later to be consolidated with
House Bill No. 5352 and enacted as R.A. No.
9369, Senator Richard Gordon, the principal author
of the bill, acknowledged that the said proviso in
the proposed legislative measure is an old
provision which was merely copied from earlier
existing legislation, thus
Senator Osmea. May I just
opine here and perhaps obtain the
opinion of the good Sponsor. This
reads like, ANY PERSON HOLDING
[means
currently]
A
PUBLIC
APPOINTIVE POSITION SHALL BE
CONSIDERED
IPSO
FACTO
RESIGNED [which means that the
prohibition
extends
only
to
appointive
officials]
INCLUDING
ACTIVE MEMBERS OF THE ARMED
FORCES,
OFFICERS
AND
EMPLOYEES This is a prohibition,
Mr. President. This means if one is
chairman of SSS or PDIC, he is
deemed ipso facto resigned when he
files his certificate of candidacy. Is
that the intention?
Senator
Gordon. This
is
really an old provision, Mr. President.
Senator Osmea. It is in
bold letters, so I think it was a
Committee amendment.
Senator Gordon. No, it has
always been there.
Senator Osmea. I see.
Senator Gordon. I guess the
intention is not to give them undue
advantage, especially certain people.

77

right.[16]

Senator

Osmea. All

In that Senate deliberation, however,

Senator Miriam Defensor-Santiago expressed her
concern over the inclusion of the said provision in
the new law, given that the same would be
disadvantageous and unfair to potential candidates
holding appointive positions, while it grants a
consequent preferential treatment to elective
officials, thus
Senator Santiago. On page
15, line 31, I know that this is a
losing cause, so I make this point
more as a matter of record than of
any feasible hope that it can possibly
be either accepted or if we come to a
division of the House, it will be
upheld by the majority.
I am referring to page 15,
line
21. The
proviso
begins: PROVIDED FINALLY, THAT
ANY PERSON HOLDING A PUBLIC
APPOINTIVE
OFFICESHALL
BE
CONSIDERED
IPSO
FACTO
RESIGNED FROM HIS/HER OFFICE.
The point that I made during
the appropriate debate in the past in
this Hall is that there is, for me, no
valid reason for exempting elective
officials from this inhibition or
disqualification imposed by the
law. If we are going to consider
appointive
officers
of
the
government, including AFP members
and officers of government-owned
and controlled corporations, or any
other member of the appointive
sector of the civil service, why
should it not apply to the elective
sector for, after all, even senators
and congressmen are members of
the civil service as well?
Further, it is self-serving for
the Senate, or for the Congress in
general, to give an exception to itself
which is not available to other
similarly
situated
officials
of
government. Of course, the answer
is, the reason why we are special is
that we are elected. Since we are
imposing a disqualification on all
other government officials except

ourselves, I think, it is the better

part of delicadeza to inhibit ourselves
as well, so that if we want to stay as
senators, we wait until our term
expires. But if we want to run for
some other elective office during our
term, then we have to be considered
resigned
just
like
everybody
else. That
is
my
proposed
amendment. But
if
it
is
unacceptable to the distinguished
Sponsor, because of sensitivity to
the convictions of the rest of our
colleagues, I will understand.
Senator
Gordon.
Mr.
President, I think the suggestion is
well-thought of. It is a good
policy. However, this is something
that is already in the old law which
was upheld by the Supreme court in
a recent case that the rider was not
upheld and that it was valid.[17]
The obvious inequality brought about by the
provision on automatic resignation of appointive
civil servants must have been the reason why
Senator Recto proposed the inclusion of the
following during the period of amendments: ANY
PERSON WHO FILES HIS CERTIFICATE OF
CANDIDACY WITHIN THIS PERIOD SHALL ONLY BE
CONSIDERED AS A CANDIDATE AT THE START OF
THE CAMPAIGN PERIOD FOR WHICH HE FILED HIS
COC.[18] The said proviso seems to mitigate the
situation of disadvantage afflicting appointive
officials by considering persons who filed their
CoCs as candidates only at the start of the
campaign period, thereby, conveying the tacit
intent that persons holding appointive positions will
only be considered as resigned at the start of the
campaign period when they are already treated by
law as candidates.
Parenthetically, it may be remembered that
Section 67 of the OEC and Section 11 of R.A. No.
8436 contained a similar provision on automatic
resignation of elective officials upon the filing of
their CoCs for any office other than that which they
hold in a permanent capacity or for President or
Vice-President. However, with the enactment of
R.A. No. 9006, or the Fair Election Act,[19]in 2001,
this provision was repealed by Section 14[20] of the
said act. There was, thus, created a situation of
obvious discrimination against appointive officials
who were deemed ipso facto resigned from their

78

offices upon the filing of their CoCs, while elective

officials were not.
This situation was incidentally addressed by
the
Court
in Farias
v.
The
Executive
Secretary[21] when it ruled that
Section 14 of Rep. Act No. 9006
Is Not Violative of the Equal
Protection Clause of the Constitution
The petitioners contention,
that the repeal of Section 67 of the
Omnibus Election Code pertaining to
elective officials gives undue benefit
to such officials as against the
appointive ones and violates the
equal protection clause of the
constitution, is tenuous.
The equal protection of the
law clause in the Constitution is not
absolute,
but
is
subject
to
reasonable
classification. If
the
groupings are characterized by
substantial distinctions that make
real differences, one class may be
treated and regulated differently
from the other. The Court has
explained the nature of the equal
protection guarantee in this manner:
The
equal
protection of the law
clause
is
against
undue
favor
and
individual
or
class
privilege, as well as
hostile discrimination
or the oppression of
inequality. It is not
intended to prohibit
legislation which is
limited either in the
object to which it is
directed or by territory
within which it is to
operate. It does not
demand
absolute
equality
among
residents; it merely
requires
that
all
persons
shall
be
treated
alike, under
like circumstances and
conditions both as to
privileges
conferred

and
liabilities
enforced. The
equal
protection clause is
not
infringed
by
legislation
which
applies only to those
persons falling within a
specified class, if it
applies alike to all
persons within such
class, and reasonable
grounds
exist
for
making a distinction
between those who fall
within such class and
those who do not.
Substantial distinctions clearly
exist between elective officials and
appointive officials. The former
occupy their office by virtue of the
mandate of the electorate. They are
elected to an office for a definite
term and may be removed therefrom
only upon stringent conditions. On
the other hand, appointive officials
hold their office by virtue of their
designation thereto by an appointing
authority. Some appointive officials
hold their office in a permanent
capacity and are entitled to security
of tenure while others serve at the
pleasure of the appointing authority.
Another substantial distinction
between the two sets of officials is
that under Section 55, Chapter 8,
Title I, Subsection A. Civil Service
Commission,
Book
V
of
the
Administrative
Code
of
1987
(Executive
Order
No.
292),
appointive officials, as officers and
employees in the civil service, are
strictly prohibited from engaging in
any partisan political activity or take
part in any election except to
vote. Under the same provision,
elective officials, or officers or
employees holding political offices,
are obviously expressly allowed to
take part in political and electoral
activities.
By repealing Section 67 but
retaining Section 66 of the Omnibus
Election
Code,
the
legislators
deemed it proper to treat these two

79

classes of officials differently with

respect to the effect on their tenure
in the office of the filing of the
certificates of candidacy for any
position other than those occupied
by them. Again, it is not within the
power of the Court to pass upon or
look into the wisdom of this
classification.
Since
the
classification
justifying Section 14 of Rep. Act No.
9006, i.e.,
elected
officials vis-avis appointive officials, is anchored
upon
material
and
significant
distinctions and all the persons
belonging
under
the
same
classification are similarly treated,
the equal protection clause of the
Constitution
is,
thus,
not
infringed.[22]
However, it must be remembered that the
Court, in Farias, was intently focused on the main
issue of whether the repealing clause in the Fair
Election Act was a constitutionally proscribed rider,
in that it unwittingly failed to ascertain with stricter
scrutiny the impact of the retention of the provision
on automatic resignation of persons holding
appointive positions (Section 66) in the OEC, vis-vis the equal protection clause. Moreover, the
Courts vision in Farias was shrouded by the fact
that petitioners therein, Farias et al., never posed
a direct challenge to the constitutionality of Section
66 of the OEC. Farias et al. rather merely
questioned,
on
constitutional
grounds,
the
repealing clause, or Section 14 of the Fair Election
Act.
The
Courts
afore-quoted
declaration
inFarias may then very well be considered as
an obiter dictum.
III.
The instant case presents a rare opportunity
for the Court, in view of the constitutional
challenge advanced by petitioners, once and for all,
to settle the issue of whether the second proviso in
the third paragraph of Section 13 of R.A. No. 9369,
a reproduction ofSection 66 of the OEC, which, as
shown above, was based on provisions dating back
to the American occupation, is violative of the
equal protection clause.
But before delving into the constitutional
issue, we shall first address the issues on legal

standing and
controversy.

on

the

existence

of

an

actual

Central to the determination of locus

standi is the question of whether a party has
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.[23] In this case,
petitioners allege that they will be directly affected
by COMELEC Resolution No. 8678 for they intend,
and they all have the qualifications, to run in the
2010 elections. The OSG, for its part, contends
that since petitioners have not yet filed their CoCs,
they are not yet candidates; hence, they are not
yet directly affected by the assailed provision in the
COMELEC resolution.
The Court, nevertheless, finds that, while
petitioners are not yet candidates, they have the
standing to raise the constitutional challenge,
simply because they are qualified voters. A
restriction on candidacy, such as the challenged
measure herein, affects the rights of voters to
choose their public officials. The rights of voters
and the rights of candidates do not lend
themselves to neat separation; laws that affect
candidates always have at least some theoretical,
correlative effect on voters.[24] The Court believes
that both candidates and voters may challenge, on
grounds of equal protection, the assailed measure
because of its impact on voting rights.[25]
In any event, in recent cases, this Court has
relaxed the stringent direct injury test and has
observed a liberal policy allowing ordinary citizens,
members of Congress, and civil organizations to
prosecute actions involving the constitutionality or
validity of laws, regulations and rulings.[26]
We have also stressed in our prior decisions
that the exercise by this Court of judicial power is
limited to the determination and resolution of
actual cases and controversies.[27] The Court, in
this case, finds that an actual case or controversy
exists between the petitioners and the COMELEC,
the body charged with the enforcement and
administration of all election laws. Petitioners have
alleged in a precise manner that they would
engage in the very acts that would trigger the
enforcement of the provisionthey would file their
CoCs and run in the 2010 elections. Given that the
assailed
provision
provides
for ipso
facto resignation upon the filing of the CoC, it
cannot be said that it presents only a speculative

80

or
hypothetical
candidacy.[28]

obstacle

to

petitioners

IV.
Having hurdled what the OSG posed as
obstacles to judicial review, the Court now delves
into the constitutional challenge.
It is noteworthy to point out that the right
to run for public office touches on two fundamental
freedoms, those of expression and of association.
This premise is best explained in Mancuso v.
Taft,[29] viz.:
Freedom
of
expression
guarantees to the individual the
opportunity to write a letter to the
local newspaper, speak out in a
public park, distribute handbills
advocating radical reform, or picket
an official building to seek redress of
grievances. All of these activities are
protected by the First Amendment if
done in a manner consistent with a
narrowly defined concept of public
order and safety. The choice of
means will likely depend on the
amount of time and energy the
individual wishes to expend and on
his perception as to the most
effective method of projecting his
message to the public. But interest
and
commitment
are
evolving
phenomena. What is an effective
means for protest at one point in
time may not seem so effective at a
later date. The dilettante who
participates in a picket line may
decide to devote additional time and
resources to his expressive activity.
As his commitment increases, the
means
of
effective
expression
changes, but the expressive quality
remains constant. He may decide to
lead the picket line, or to publish the
newspaper. At one point in time he
may decide that the most effective
way to give expression to his views
and to get the attention of an
appropriate audience is to become a
candidate for public office-means
generally considered among the
most appropriate for those desiring
to effect change in our governmental
systems. He may seek to become a
candidate by filing in a general

election as an independent or by
seeking the nomination of a political
party. And in the latter instance, the
individual's expressive activity has
two dimensions: besides urging that
his views be the views of the elected
public official, he is also attempting
to become a spokesman for a
political party whose substantive
program
extends
beyond
the
particular
office
in
question.
But Cranston has said that a certain
type of its citizenry, the public
employee, may not become a
candidate and may not engage in
any campaign activity that promotes
himself as a candidate for public
office. Thus the city has stifled what
may
be
the
most
important
expression
an
individual
can
summon, namely that which he
would be willing to effectuate, by
means of concrete public action,
were he to be selected by the voters.
It is impossible to ignore the
additional fact that the right to run
for office also affects the freedom to
associate.
In
Williams
v.
Rhodes, supra, the Court used strict
review to invalidate an Ohio election
system that made it virtually
impossible for third parties to secure
a place on the ballot. The Court
found that the First Amendment
protected the freedom to associate
by forming and promoting a political
party and that that freedom was
infringed when the state effectively
denied a party access to its electoral
machinery.
The Cranston charter
provision before us also affects
associational rights, albeit in a
slightly different way. An individual
may decide to join or participate in
an organization or political party that
shares his beliefs. He may even form
a new group to forward his ideas.
And at some juncture his supporters
and fellow party members may
decide that he is the ideal person to
carry the group's standard into the
electoral fray. To thus restrict the
options
available
to
political
organization as the Cranstoncharter
provision has done is to limit the
effectiveness of association; and the

81

freedom to associate is intimately

related with the concept of making
expression effective. Party access to
the ballot becomes less meaningful if
some of those selected by party
machinery to carry the party's
programs
to
the
people
are
precluded from doing so because
those nominees are civil servants.

In considering persons holding appointive

positions as ipso facto resigned from their posts
upon the filing of their CoCs, but not considering as
resigned all other civil servants, specifically the
elective ones, the law unduly discriminates against
the first class. The fact alone that there is
substantial distinction between those who hold
appointive positions and those occupying elective
posts, does not justify such differential treatment.

Whether the right to run for

office is looked at from the point of
view of individual expression or
associational
effectiveness,
wide
opportunities exist for the individual
who seeks public office. The fact of
candidacy alone may open previously
closed doors of the media. The
candidate may be invited to discuss
his views on radio talk shows; he
may be able to secure equal time on
television to elaborate his campaign
program; the newspapers may cover
his candidacy; he may be invited to
debate before various groups that
had theretofore never heard of him
or his views. In short, the fact of
candidacy opens up a variety of
communicative possibilities that are
not available to even the most
diligent of picketers or the most loyal
of party followers. A view today, that
running for public office is not an
interest protected by the First
Amendment, seems to us an outlook
stemming from an earlier era when
public office was the preserve of the
professional
and
the
wealthy. Consequently we hold that
candidacy is both a protected First
Amendment right and a fundamental
interest.
Hence
any
legislative
classification
that
significantly
burdens that interest must be
subjected to strict equal protection
review.[30]

In order that there can be valid classification

so that a discriminatory governmental act may
pass the constitutional norm of equal protection, it
is necessary that the four (4) requisites of valid
classification be complied with, namely:

Here, petitioners interest in running for

public office, an interest protected by Sections 4
and 8 of Article III of the Constitution, is breached
by the proviso in Section 13 of R.A. No. 9369. It is
now the opportune time for the Court to strike
down the said proviso for being violative of the
equal protection clause and for being overbroad.

(1) It must be based upon substantial

distinctions;
(2) It must be germane to the purposes
of the law;
(3) It must not be limited to existing
conditions only; and
(4) It must apply equally to all
members of the class.
The first requirement means that there
must be real and substantial differences between
the classes treated differently. As illustrated in the
fairly recent Mirasol v. Department of Public Works
and Highways,[31] a real and substantial distinction
exists between a motorcycle and other motor
vehicles sufficient to justify its classification among
those prohibited from plying the toll ways. Not all
motorized vehicles are created equala twowheeled vehicle is less stable and more easily
overturned than a four-wheel vehicle.
Nevertheless, the classification would still
be invalid if it does not comply with the second
requirementif it is not germane to the purpose of
the law. Justice Isagani A. Cruz (Ret.), in his
treatise on constitutional law, explains,
The classification, even if
based on substantial distinctions, will
still be invalid if it is not germane to
the purpose of the law. To illustrate,
the accepted difference in physical
stamina between men and women
will justify the prohibition of the
latter from employment as miners or
stevedores or in other heavy and
strenuous work. On the basis of this
same classification, however, the law
cannot provide for a lower passing
average for women in the bar
examinations
because
physical

82

strength is not the test for admission

to the legal profession. Imported
cars may be taxed at a higher rate
than locally assembled automobiles
for the protection of the national
economy, but their difference in
origin is no justification for treating
them differently when it comes to
punishing
violations
of
traffic
regulations. The source of the
vehicle has no relation to the
observance of these rules.[32]
The third requirement means that the
classification must be enforced not only for the
present but as long as the problem sought to be
corrected continues to exist. And, under the last
requirement, the classification would be regarded
as invalid if all the members of the class are not
treated similarly, both as to rights conferred and
obligations imposed.[33]
Applying the four requisites to the instant
case, the Court finds that the differential treatment
of persons holding appointive offices as opposed to
those holding elective ones is not germane to the
purposes of the law.
The obvious reason for the challenged
provision is to prevent the use of a governmental
position to promote ones candidacy, or even to
wield a dangerous or coercive influence on the
electorate. The measure is further aimed at
promoting the efficiency, integrity, and discipline of
the public service by eliminating the danger that
the discharge of official duty would be motivated
by political considerations rather than the welfare
of the public.[34] The restriction is also justified by
the proposition that the entry of civil servants to
the electoral arena, while still in office, could result
in neglect or inefficiency in the performance of duty
because they would be attending to their campaign
rather than to their office work.
If we accept these as the underlying
objectives of the law, then the assailed provision
cannot be constitutionally rescued on the ground of
valid classification. Glaringly absent is the requisite
that the classification must be germane to the
purposes of the law. Indeed, whether one holds an
appointive office or an elective one, the evils
sought to be prevented by the measure remain.
For example, the Executive Secretary, or any
Member of the Cabinet for that matter, could wield
the same influence as the Vice-President who at
the same time is appointed to a Cabinet post (in

the recent past, elected Vice-Presidents were

appointed to take charge of national housing, social
welfare
development,
interior
and
local
government, and foreign affairs). With the fact that
they both head executive offices, there is no valid
justification to treat them differently when both file
their CoCs for the elections. Under the present
state of our law, the Vice-President, in the
example, running this time, let us say, for
President, retains his position during the entire
election period and can still use the resources of
his office to support his campaign.
As to the danger of neglect, inefficiency or
partisanship in the discharge of the functions of his
appointive office, the inverse could be just as true
and compelling. The public officer who files his
certificate of candidacy would be driven by a
greater impetus for excellent performance to show
his fitness for the position aspired for.
Mancuso v. Taft,[35] cited above, explains
that the measure on automatic resignation, which
restricts the rights of civil servants to run for
officea right inextricably linked to their freedom
of expression and association, is not reasonably
necessary to the satisfaction of the state interest.
Thus, in striking down a similar measure in
the United States, Mancuso succinctly declares
In proceeding to the second
stage of active equal protection
review, however, we do see some
contemporary
relevance
of
the Mitchelldecision. National
Ass'n
of Letter Carriers, supra. In order for
the Cranston charter provision to
withstand strict scrutiny, the city
must show that the exclusion of all
government
employees
from
candidacy is necessary to achieve a
compelling state interest. And, as
stated in Mitchell and other cases
dealing
with
similar
statutes, see Wisconsin State
Employees, supra; Broadrick, supra,
government at all levels has a
substantial interest in protecting the
integrity of its civil service. It is
obviously
conceivable
that
the
impartial character of the civil
service
would
be
seriously
jeopardized if people in positions of
authority used their discretion to
forward their electoral ambitions
rather than the public welfare.
Similarly if a public employee

83

pressured other fellow employees to

engage in corrupt practices in return
for promises of post-election reward,
or if an employee invoked the power
of the office he was seeking to
extract special favors from his
superiors, the civil service would be
done irreparable injury. Conversely,
members of the public, fellowemployees, or supervisors might
themselves request favors from the
candidate or might improperly adjust
their own official behavior towards
him. Even if none of these abuses
actually materialize, the possibility of
their occurrence might seriously
erode the public's confidence in its
public employees. For the reputation
of impartiality is probably as crucial
as the impartiality itself; the
knowledge that a clerk in the
assessor's office who is running for
the local zoning board has access to
confidential files which could provide
pressure points for furthering his
campaign is destructive regardless of
whether the clerk actually takes
advantage of his opportunities. For
all of these reasons we find that the
state indeed has a compelling
interest in maintaining the honesty
and impartiality of its public work
force.
We do not, however, consider
the exclusionary measure taken
by Cranston-a flat prohibition on
office-seeking of all kinds by all kinds
of
public
employees-as
even
reasonably necessary to satisfaction
of this state interest. As Justice
Marshall pointed out in Dunn v.
Blumstein, [s]tatutes
affecting
constitutional rights must be drawn
with precision. For three sets of
reasons
we
conclude
that
the Cranston charter
provision
pursues its objective in a far too
heavy-handed manner and hence
must fall under the equal protection
clause. First, we think the nature of
the regulation-a broad prophylactic
rule-may
be
unnecessary
to
fulfillment of the city's objective.
Second, even granting some sort of
prophylactic rule may be required,
the
provision
here
prohibits

candidacies for all types of public

office, including many which would
pose none of the problems at which
the law is aimed. Third, the provision
excludes the candidacies of all types
of public employees, without any
attempt to limit exclusion to those
employees whose positions make
them vulnerable to corruption and
conflicts of interest.
There is thus no valid justification to treat
appointive officials differently from the elective
ones. The classification simply fails to meet the
test that it should be germane to the purposes of
the law. The measure encapsulated in the second
proviso of the third paragraph of Section 13 of R.A.
No. 9369 and in Section 66 of the OEC violates the
equal protection clause.
V.
The challenged provision also suffers from
the infirmity of being overbroad.
First, the provision pertains to all civil
servants
holding
appointive
posts
without
distinction as to whether they occupy high
positions in government or not. Certainly, a utility
worker in the government will also be considered
as ipso facto resigned once he files his CoC for the
2010 elections. This scenario is absurd for, indeed,
it is unimaginable how he can use his position in
the government to wield influence in the political
world.
While it may be admitted that most
appointive officials who seek public elective office
are those who occupy relatively high positions in
government, laws cannot be legislated for them
alone, or with them alone in mind. For the right to
seek public elective office is universal, open and
unrestrained, subject only to the qualification
standards prescribed in the Constitution and in the
laws. These qualifications are, as we all know,
general and basic so as to allow the widest
participation of the citizenry and to give free rein
for the pursuit of ones highest aspirations to public
office. Such is the essence of democracy.
Second, the provision is directed to the
activity
of
seeking
any
and
all
public
offices, whether they be partisan or nonpartisan in
character, whether they be in the national,
municipal or barangay level. Congress has not
shown a compelling state interest to restrict the

84

fundamental right involved on such a sweeping

scale.[36]
Specific evils require specific treatments,
not through overly broad measures that unduly
restrict guaranteed freedoms of the citizenry. After
all, sovereignty resides in the people, and all
governmental power emanates from them.
Mancuso v. Taft,[37] on this point, instructs
As
to
approaches
less
restrictive than a prophylactic rule,
there exists the device of the leave
of absence. Some system of leaves
of absence would permit the public
employee to take time off to pursue
his candidacy while assuring him his
old job should his candidacy be
unsuccessful. Moreover, a leave of
absence policy would eliminate many
of the opportunities for engaging in
the questionable practices that the
statute is designed to prevent. While
campaigning, the candidate would
feel no conflict between his desire for
election and his publicly entrusted
discretion, nor any conflict between
his efforts to persuade the public and
his access to confidential documents.
But instead of adopting a reasonable
leave
of
absence
policy, Cranston has
chosen
a
provision that makes the public
employee cast off the security of
hard-won public employment should
he desire to compete for elected
office.
The city might also promote
its interest in the integrity of the civil
service
by
enforcing,
through
dismissal, discipline, or criminal
prosecution, rules or statutes that
treat conflict of interests, bribery, or
other forms of official corruption. By
thus attacking the problem directly,
instead of using a broad prophylactic
rule, the city could pursue its
objective without unduly burdening
the First Amendment rights of its
employees and the voting rights of
its citizens. Last term in Dunn v.
Blumstein, the Supreme Court faced
an analogous question when the
State of Tennessee asserted that the
interest of ballot box purity

justified its imposition of one year

and
three
month
residency
requirements before a citizen could
vote. Justice Marshall stated,inter
alia, that Tennessee had available a
number of criminal statutes that
could be used to punish voter fraud
without unnecessary infringement on
the newcomer's right to vote.
Similarly, it appears from the record
in this case that the Cranston charter
contains some provisions that might
be used against opportunistic public
employees.
Even
if
some
sort
of
prophylactic rule is necessary, we
cannot say that Cranston has put
much effort into tailoring a narrow
provision that attempts to match the
prohibition with the problem. The
charter
forbids
a Cranston public
employee from running for any
office, anywhere. The prohibition is
not limited to the local offices
of Cranston, but rather extends to
statewide offices and even to
national offices. It is difficult for us
to see that a public employee
running for the United States
Congress poses quite the same
threat to the civil service as would
the same employee if he were
running for a local office where the
contacts and information provided by
his job related directly to the position
he was seeking, and hence where
the potential for various abuses was
greater.
Nor
does
the Cranston charter
except
the
public
employee
who
works
in Cranston but aspires to office in
another local jurisdiction, most
probably his town of residence. Here
again
the
charter
precludes
candidacies which can pose only a
remote threat to the civil service.
Finally, the charter does not limit its
prohibition to partisan office-seeking,
but sterilizes also those public
employees
who
would
seek
nonpartisan elective office. The
statute
reviewed
in Mitchell was
limited to partisan political activity,
and since that time other courts
have found the partisan-nonpartisan
distinction
a material
one. See

85

Kinnear,
supra; Wisconsin State Employees,
supra; Gray v. Toledo, supra. While
the line between nonpartisan and
partisan can often be blurred by
systems whose true characters are
disguised by the names given them
by their architects, it seems clear
that the concerns of a truly partisan
office and the temptations it fosters
are sufficiently different from those
involved in an office removed from
regular party politics to warrant
distinctive treatment in a charter of
this sort.
The third and last area of
excessive and overinclusive coverage
of the Cranston charter relates not to
the type of office sought, but to the
type of employee seeking the office.
As Justice Douglas pointed out in his
dissent in Mitchell, 330 U.S. at 120126, 67 S.Ct. 556, restrictions on
administrative employees who either
participate in decision-making or at
least
have
some
access
to
information
concerning
policy
matters are much more justifiable
than
restrictions
on
industrial
employees, who, but for the fact that
the government owns the plant they
work in, are, for purposes of access
to official information, identically
situated to all other industrial
workers.
Thus,
a
worker
in
the Philadelphia mint
could
be
distinguished from a secretary in an
office
of
the
Department
of
Agriculture; so also could a janitor in
the public schools of Cranston be
distinguished from an assistant
comptroller of the same city. A
second line of distinction that
focuses on the type of employee is
illustrated
by
the
cases
of Kinnear and Minielly,
supra. In
both of these cases a civil service
deputy decided to run for the elected
office of sheriff. The courts in both
cases felt that the no-candidacy laws
in question were much too broad and
indicated that perhaps the only
situation sensitive enough to justify
a flat rule was one in which an
inferior in a public office electorally
challenged his immediate superior.

Given all these considerations, we

think Cranston has
not
given
adequate attention to the problem of
narrowing the terms of its charter to
deal with the specific kinds of
conflict-of-interest problems it seeks
to avoid.
We
also
do
not
find
convincing the arguments that afterhours campaigning will drain the
energy of the public employee to the
extent that he is incapable of
performing his job effectively and
that
inevitable
on-the-job
campaigning and discussion of his
candidacy will disrupt the work of
others. Although it is indisputable
that the city has a compelling
interest in the performance of official
work, the exclusion is not welltailored to effectuate that interest.
Presumably the city could fire the
individual if he clearly shirks his
employment
responsibilities
or
disrupts the work of others. Also, the
efficiency rationale common to both
arguments
is
significantly
underinclusive. It applies equally well
to a number of non-political,
extracurricular activities that are not
prohibited by the Cranston charter.
Finally, the connection between
after-hours campaigning and the
state interest seems tenuous; in
many cases a public employee would
be able to campaign aggressively
and still continue to do his job
well.[38]
Incidentally, Clements
v.
Fashing[39] sustained as constitutional a provision
on the automatic resignation of District Clerks,
County Clerks, County Judges, County Treasurers,
Criminal District Attorneys, County Surveyors,
Inspectors of Hides and Animals, County
Commissioners, Justices of the Peace, Sheriffs,
Assessors and Collectors of Taxes, District
Attorneys, County Attorneys, Public Weighers, and
Constables if they announce their candidacy or if
they become candidates in any general, special or
primary election.
In Clements, it may be readily observed
that a provision treating differently particular
officials, as distinguished from all others, under a

86

classification that is germane to the purposes of

the law, merits the stamp of approval from
American courts. Not, however, a general and
sweeping provision, and more so one violative of
the second requisite for a valid classification, which
is on its face unconstitutional.
On a final note, it may not be amiss to state
that the Americans, from whom we copied the
provision in question, had already stricken down a
similar measure for being unconstitutional. It is
high-time that we, too, should follow suit and,
thus, uphold fundamental liberties over age-old,
but barren, restrictions to such freedoms.

MENDOZ
SERENO,

EXECUTIVE SECRETARY PAQUITO N.

OCHOA, JR. and DEPARTMENT OF
BUDGET
AND
MANAGEMENT
SECRETARY FLORENCIO B. ABAD,
Respondents.

Promulga

Decemb

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

DECISION
MENDOZA, J.:

WHEREFORE, premises considered, the

petition is GRANTED. The second proviso in the
third paragraph of Section 13 of Republic Act No.
9369, Section 66 of the Omnibus Election Code and
Section 4(a) of COMELEC Resolution No. 8678 are
declared as UNCONSTITUTIONAL.

SO ORDERED.
EN BANC

LOUIS
BIRAOGO,

BAROK

C.
Petitioner,

- versus THE PHILIPPINE TRUTH COMMISSION

OF 2010,
Respondent.
x-----------------------x
REP. EDCEL C. LAGMAN,
REP. RODOLFO B. ALBANO, JR., REP.
SIMEON
A.
DATUMANONG, and REP.
ORLANDO B. FUA, SR.,
Petitioners,

- versus -

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.
G.R. No. 192935
Justice Jose P. Laurel[1]

---

The role of the Constitution cannot be

overlooked. It is through the Constitution that the
fundamental
powers
of
government
are
established, limited and defined, and by which
these powers are distributed among the several
G.R. departments.
No. 193036 [2] The Constitution is the basic and
paramount law to which all other laws must
Present:
conform and to which all persons, including the
highest
officials
of
the
land,
must
[3]
CORONA,
defer.C.J.,
Constitutional doctrines must remain
CARPIO,
steadfast no matter what may be the tides of time.
CARPIO
It MORALES,
cannot be simply made to sway and
VELASCO,
accommodate
JR.,
the call of situations and much more
NACHURA,
tailor itself to the whims and caprices of
LEONARDO-DE
government
CASTRO,
and the people who run it.[4]
BRION,
PERALTA, For consideration before the Court are two
BERSAMIN,
consolidated cases[5] both of which essentially
DEL CASTILLO,
assail the validity and constitutionality of Executive
ABAD,
Order
No.
1,
dated
July
30,
2010,
VILLARAMA,
entitled JR.,
Creating the Philippine Truth Commission
PEREZ,
of 2010.

87

The first case is G.R. No. 192935, a special

civil action for prohibition instituted by petitioner
Louis Biraogo (Biraogo) in his capacity as a citizen
and taxpayer. Biraogo assails Executive Order No.
1 for being violative of the legislative power of
Congress under Section 1, Article VI of the
Constitution[6] as it usurps the constitutional
authority of the legislature to create a public office
and to appropriate funds therefor.[7]
The second case, G.R. No. 193036, is a
special civil action for certiorari and prohibition
filed by petitioners Edcel C. Lagman, Rodolfo B.
Albano Jr., Simeon A. Datumanong, and Orlando B.
Fua,
Sr. (petitioners-legislators) as
incumbent
members of the House of Representatives.
The genesis of the foregoing cases can be
traced to the events prior to the historic May 2010
elections, when then Senator Benigno Simeon
Aquino III declared his staunch condemnation of
graft and corruption with his slogan, Kung walang
corrupt, walang mahirap. The Filipino people,
convinced of his sincerity and of his ability to carry
out this noble objective, catapulted the good
senator to the presidency.
To transform his campaign slogan into
reality, President Aquino found a need for a special
body to investigate reported cases of graft and
corruption allegedly committed during the previous
administration.
Thus, at the dawn of his administration, the
President on July 30, 2010, signed Executive Order
No. 1 establishing thePhilippine Truth Commission
of 2010 (Truth Commission). Pertinent provisions
of said executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH
COMMISSION OF 2010
WHEREAS,
Article
XI,
Section 1 of the 1987 Constitution of
the Philippines solemnly enshrines
the principle that a public office is a
public trust and mandates that public
officers and employees, who are
servants of the people, must at all
times be accountable to the latter,
serve
them
with
utmost
responsibility, integrity, loyalty and
efficiency, act with patriotism and
justice, and lead modest lives;

WHEREAS,
corruption
is
among the most despicable acts of
defiance of this principle and
notorious violation of this mandate;
WHEREAS, corruption is an
evil and scourge which seriously
affects the political, economic, and
social life of a nation; in a very
special
way
it
inflicts
untold
misfortune and misery on the poor,
the marginalized and underprivileged
sector of society;
WHEREAS, corruption in the
Philippines
has
reached
very
alarming levels, and undermined the
peoples trust and confidence in the
Government and its institutions;
WHEREAS,
there
is
an
urgent call for the determination of
the truth regarding certain reports of
large scale graft and corruption in
the government and to put a closure
to them by the filing of the
appropriate cases against those
involved, if warranted, and to deter
others from committing the evil,
restore the peoples faith and
confidence in the Government and in
their public servants;
WHEREAS, the Presidents
battlecry during his campaign for the
Presidency in the last elections kung
walang corrupt, walang mahirap
expresses a solemn pledge that if
elected, he would end corruption and
the evil it breeds;
WHEREAS, there is a need
for a separate body dedicated solely
to investigating and finding out the
truth concerning the reported cases
of graft and corruption during the
previous administration, and which
will recommend the prosecution of
the offenders and secure justice for
all;
WHEREAS, Book III, Chapter
10, Section 31 of Executive Order
No. 292, otherwise known as the
Revised Administrative Code of the
Philippines, gives the President the

88

continuing authority to reorganize

the Office of the President.
NOW,
THEREFORE,
I, BENIGNO SIMEON AQUINO III,
President of the Republic of the
Philippines, by virtue of the powers
vested in me by law, do hereby
order:
SECTION 1. Creation of a
Commission. There is hereby
created
the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to
as the COMMISSION, which shall
primarily seek and find the truth on,
and toward this end, investigate
reports of graft and corruption of
such scale and magnitude that shock
and offend the moral and ethical
sensibilities of the people, committed
by public officers and employees,
their co-principals, accomplices and
accessories from the private sector,
if
any,
during
the
previous
administration;
and
thereafter
recommend the appropriate action or
measure to be taken thereon to
ensure that the full measure of
justice shall be served without fear
or favor.
The Commission shall be
composed of a Chairman and four
(4) members who will act as an
independent collegial body.
SECTION 2. Powers and
Functions. The Commission, which
shall have all the powers of an
investigative body under Section 37,
Chapter
9,
Book
I
of
the
Administrative Code of 1987, is
primarily tasked to conduct a
thorough fact-finding investigation of
reported
cases
of
graft
and
corruption referred to in Section 1,
involving third level public officers
and higher, their
co-principals,
accomplices and accessories from the
private sector, if any, during the
previous
administration
and
thereafter submit its finding and
recommendations to the President,
Congress and the Ombudsman.
In particular, it shall:

a)
Identify and determine the
reported cases of such graft and
corruption which it will investigate;
b)
Collect, receive, review and
evaluate evidence related to or
regarding the cases of large scale
corruption which it has chosen to
investigate, and to this end require
any agency, official or employee of
the Executive Branch, including
government-owned
or
controlled
corporations, to produce documents,
books, records and other papers;
c)
Upon proper request or
representation, obtain information
and documents from the Senate and
the House of Representatives records
of
investigations
conducted
by
committees
thereof
relating
to
matters
or
subjects
being
investigated by the Commission;
d)
Upon proper request and
representation, obtain information
from the courts, including the
Sandiganbayan and the Office of the
Court Administrator, information or
documents in respect to corruption
cases filed with the Sandiganbayan
or the regular courts, as the case
may be;
e)
Invite or subpoena witnesses
and take their testimonies and for
that purpose, administer oaths or
affirmations as the case may be;
f)
Recommend, in cases where
there is a need to utilize any person
as a state witness to ensure that the
ends of justice be fully served, that
such person who qualifies as a state
witness under the Revised Rules of
Court of the Philippines be admitted
for that purpose;
g)
Turn over from time to time,
for expeditious prosecution, to the
appropriate prosecutorial authorities,
by
means
of
a
special
orinterim report
and
recommendation, all evidence on
corruption of public officers and
employees and their private sector
co-principals,
accomplices
or

89

accessories, if any, when in the

course of its investigation the
Commission finds that there is
reasonable ground to believe that
they are liable for graft and
corruption under pertinent applicable
laws;
h)
Call upon any government
investigative or prosecutorial agency
such as the Department of Justice or
any of the agencies under it, and the
Presidential Anti-Graft Commission,
for such assistance and cooperation
as it may require in the discharge of
its functions and duties;
i)
Engage or contract the
services
of
resource
persons,
professionals and other personnel
determined by it as necessary to
carry out its mandate;
j)
Promulgate its rules and
regulations or rules of procedure it
deems necessary to effectively and
efficiently carry out the objectives of
this Executive Order and to ensure
the
orderly
conduct
of
its
investigations,
proceedings
and
hearings, including the presentation
of evidence;
k)
Exercise such other
incident to or are appropriate
necessary in connection with
objectives and purposes of
Order.
SECTION
3.
Requirements. x x x.

acts
and
the
this

Staffing

SECTION 9. Refusal to Obey

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

13.

SECTION 14. Term of the

Commission. The Commission shall
accomplish its mission on or before
December 31, 2012.

of

SECTION 15. Publication of

Final Report. x x x.

SECTION 5. Engagement of
Experts. x x x

SECTION 16. Transfer of

Records
and
Facilities
of
the
Commission. x x x.

SECTION
4.
Employees. x x x.

SECTION 6.
Proceedings. x x x.

Detail

Conduct

of

SECTION 7. Right to Counsel

of Witnesses/Resource Persons. x x
x.
SECTION 8. Protection of
Witnesses/Resource Persons. x x x.

SECTION
17.
Special
Provision Concerning Mandate. If and
when in the judgment of the
President there is a need to expand
the mandate of the Commission as
defined in Section 1 hereof to include
the investigation of cases and
instances of graft and corruption
during the prior administrations,

90

such mandate may be so extended

accordingly by way of a supplemental
Executive Order.

SECTION 18. Separability

Clause. If any provision of this Order
is declared unconstitutional, the
same shall not affect the validity and
effectivity of the other provisions
hereof.
SECTION 19. Effectivity.
This Executive Order shall take effect
immediately.
DONE in the City of Manila,
Philippines, this 30th day of July
2010.
(SGD.)
BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted
provisions,
the
Philippine
Truth
Commission (PTC) is a mere ad hoc body formed
under the Office of the President with the primary
task to investigate reports of graft and corruption
committed by third-level public officers and
employees, their co-principals, accomplices and
accessories during the previous administration, and
thereafter
to
submit
its
finding
and
recommendations to the President, Congress and
the Ombudsman. Though it has been described as
an independent collegial body, it is essentially an
entity within the Office of the President Proper and
subject to his control. Doubtless, it constitutes a
public office, as an ad hoc body is one.[8]
To accomplish its task, the PTC shall have
all the powers of an investigative body under
Section 37, Chapter 9, Book I of the Administrative
Code of 1987. It is not, however, a quasi-judicial
body as it cannot adjudicate, arbitrate, resolve,
settle, or render awards in disputes between
contending parties. All it can do is gather, collect
and assess evidence of graft and corruption and
make recommendations. It may have subpoena
powers but it has no power to cite people in

contempt, much less order their arrest. Although it

is a fact-finding body, it cannot determine from
such facts if probable cause exists as to warrant
the filing of an information in our courts of law.
Needless to state, it cannot impose criminal, civil
or administrative penalties or sanctions.
The PTC is different from the truth
commissions in other countries which have been
created as official, transitory and non-judicial factfinding bodies to establish the facts and context of
serious violations of human rights or of
international humanitarian law in a countrys
past.[9] They are usually established by states
emerging from periods of internal unrest, civil strife
or authoritarianism to serve as mechanisms for
transitional justice.
Truth commissions have been described as
bodies that share the following characteristics: (1)
they examine only past events; (2) they
investigate patterns of abuse committed over a
period of time, as opposed to a particular event;
(3) they are temporary bodies that finish their
work with the submission of a report containing
conclusions and recommendations; and (4) they
are officially sanctioned, authorized or empowered
by the State.[10] Commissions members are
usually empowered to conduct research, support
victims, and propose policy recommendations to
prevent recurrence of crimes. Through their
investigations, the commissions may aim to
discover and learn more about past abuses, or
formally acknowledge them. They may aim to
prepare the way for prosecutions and recommend
institutional reforms.[11]
Thus, their main goals range from
retribution to reconciliation. The Nuremburg and
Tokyo war crime tribunals are examples of a
retributory or vindicatory body set up to try and
punish those responsible for crimes against
humanity. A form of a reconciliatory tribunal is the
Truth and Reconciliation Commission of South
Africa, the principal function of which was to heal
the wounds of past violence and to prevent future
conflict by providing a cathartic experience for
victims.
The PTC is a far cry from South Africas
model. The latter placed more emphasis on
reconciliation than on judicial retribution, while
the marching order of the PTC is the identification
and
punishment
of
perpetrators.
As
one
writer[12] puts it:

91

The
order
ruled
out
reconciliation. It translated the
Draconian code spelled out by
Aquino in his inaugural speech: To
those who talk about reconciliation,
if they mean that they would like us
to simply forget about the wrongs
that they have committed in the
past, we have this to say: There can
be no reconciliation without justice.
When we allow crimes to go
unpunished, we give consent to their
occurring over and over again.
The Thrusts of the Petitions
Barely a month after the issuance of
Executive Order No. 1, the petitioners asked the
Court to declare it unconstitutional and to enjoin
the PTC from performing its functions. A perusal of
the arguments of the petitioners in both cases
shows that they are essentially the same. The
petitioners-legislators summarized them in the
following manner:
(a) E.O. No. 1 violates the
separation of powers as it arrogates
the power of the Congress to create
a public office and appropriate funds
for its operation.
(b) The provision of Book III,
Chapter 10, Section 31 of the
Administrative Code of 1987 cannot
legitimize E.O. No. 1 because the
delegated authority of the President
to structurally reorganize the Office
of the President to achieve economy,
simplicity and efficiency does not
include the power to create an
entirely new public office which was
hitherto inexistent like the Truth
Commission.
(c) E.O. No. 1 illegally
amended
the
Constitution
and
pertinent statutes when it vested the
Truth Commission with quasijudicial powers duplicating, if not
superseding, those of the Office of
the Ombudsman created under the
1987
Constitution
and
the
Department of Justice created under
the Administrative Code of 1987.
equal

(d) E.O. No. 1 violates the

protection
clause
as
it

selectively targets for investigation

and
prosecution
officials
and
personnel
of
the
previous
administration as if corruption is
their peculiar species even as it
excludes
those
of
the
other
administrations, past and present,
who may be indictable.
(e) The creation of the
Philippine Truth Commission of
2010 violates the consistent and
general international practice of four
decades wherein States constitute
truth commissions to exclusively
investigate human rights violations,
which customary practice forms part
of the generally accepted principles
of international law which the
Philippines is mandated to adhere to
pursuant to the Declaration of
Principles
enshrined
in
the
Constitution.
(f) The creation of the Truth
Commission is an exercise in futility,
an adventure in partisan hostility, a
launching pad for trial/conviction by
publicity and a mere populist
propaganda to mistakenly impress
the people that widespread poverty
will altogether vanish if corruption is
eliminated without even addressing
the other major causes of poverty.
(g) The mere fact that
previous commissions were not
constitutionally challenged is of no
moment because neither laches nor
estoppel can bar an eventual
question on the constitutionality and
validity of an executive issuance or
even a statute.[13]
In their Consolidated Comment,[14] the
respondents, through the Office of the Solicitor
General (OSG), essentially questioned the legal
standing of petitioners and defended the assailed
executive order with the following arguments:
1] E.O. No. 1 does not
arrogate the powers of Congress to
create a public office because the
Presidents executive power and
power of control necessarily include
the inherent power to conduct

92

investigations to ensure that laws

are faithfully executed and that, in
any event, the Constitution, Revised
Administrative Code of 1987 (E.O.
No. 292), [15] Presidential Decree
(P.D.) No. 1416[16] (as amended by
P.D.
No.
1772),
R.A.
No.
9970,[17] and settled jurisprudence
that authorize the President to create
or form such bodies.
2] E.O. No. 1 does not usurp
the power of Congress to appropriate
funds
because
there
is
no
appropriation but a mere allocation
of funds already appropriated by
Congress.
3] The Truth Commission does
not duplicate or supersede the
functions of the Office of the
Ombudsman(Ombudsman) and the
Department
of
Justice (DOJ), because it is a factfinding body and not a quasi-judicial
body and its functions do not
duplicate, supplant or erode the
latters jurisdiction.
4] The Truth Commission does
not violate the equal protection
clause because it was validly created
for laudable purposes.
The OSG then points to the continued
existence and validity of other executive orders and
presidential issuances creating similar bodies to
justify the creation of the PTC such as Presidential
Complaint
and Action
Commission (PCAC) by
President Ramon B. Magsaysay, Presidential
Committee
on
Administrative
Performance
Efficiency (PCAPE) by President Carlos P. Garcia
and
Presidential
Agency
on
Reform
and
Government
Operations (PARGO) by
President
Ferdinand E. Marcos.[18]
From the petitions, pleadings, transcripts,
and memoranda, the following are the principal
issues to be resolved:
1.
Whether
or not the petitioners have the legal
standing to file their respective
petitions and question Executive
Order No. 1;

2.
Whether
or not Executive Order No. 1 violates
the principle of separation of powers
by usurping the powers of Congress
to create and to appropriate funds
for public offices, agencies and
commissions;
3. Whether or not Executive
Order No. 1 supplants the powers of
the Ombudsman and the DOJ;
4. Whether or not Executive
Order No. 1 violates the equal
protection clause; and
5. Whether or not petitioners
are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the
constitutionality of Executive Order No. 1, the
Court needs to ascertain whether the requisites for
a valid exercise of its power of judicial review are
present.
Like almost all powers conferred by the
Constitution, the power of judicial review is subject
to limitations, to wit: (1) there must be an actual
case or controversy calling for the exercise of
judicial power; (2) the person challenging the act
must have the standing to question the validity of
the subject act or issuance; otherwise stated, he
must have a personal and substantial interest in
the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised
at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the
case.[19]
Among all these limitations, only the legal
standing of the petitioners has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of
the petitioners-legislators to file their petition for
failure to demonstrate their personal stake in the
outcome of the case. It argues that the petitioners
have not shown that they have sustained or are in
danger of sustaining any personal injury
attributable to the creation of the PTC. Not
claiming to be the subject of the commissions
investigations, petitioners will not sustain injury in
its creation or as a result of its proceedings.[20]

93

The Court disagrees with the OSG in

questioning the legal standing of the petitionerslegislators
to assail Executive Order No. 1.
Evidently, their
petition
primarily
invokes
usurpation of the power of the Congress as a body
to which they belong as members. This certainly
justifies their resolve to take the cudgels for
Congress as an institution and present the
complaints on the usurpation of their power and
rights as members of the legislature before the
Court. As held in Philippine Constitution Association
v. Enriquez,[21]
To the extent the powers of
Congress are impaired, so is the
power of each member thereof, since
his office confers a right to
participate in the exercise of the
powers of that institution.
An act of the Executive which
injures the institution of Congress
causes a derivative but nonetheless
substantial injury, which can be
questioned
by
a
member
of
Congress. In such a case, any
member of Congress can have a
resort to the courts.
Indeed, legislators have a legal standing to
see to it that the prerogative, powers and
privileges vested by the Constitution in their office
remain inviolate. Thus, they are allowed to
question the validity of any official action which, to
their mind, infringes on their prerogatives as
legislators.[22]
With regard to Biraogo, the OSG argues
that, as a taxpayer, he has no standing to question
the creation of the PTC and the budget for its
operations.[23] It emphasizes that the funds to be
used for the creation and operation of the
commission are to be taken from those funds
already appropriated by Congress. Thus, the
allocation and disbursement of funds for the
commission will not entail congressional action but
will simply be an exercise of the Presidents power
over contingent funds.
As correctly pointed out by the OSG,
Biraogo has not shown that he sustained, or is in
danger of sustaining, any personal and direct injury
attributable to the implementation of Executive
Order No. 1. Nowhere in his petition is an assertion
of a clear right that may justify his clamor for the

Court to exercise judicial power and to wield the

axe over presidential issuances in defense of the
Constitution. The
case
of David
v.
Arroyo[24] explained the deep-seated rules on locus
standi. Thus:
Locus standi is defined as a
right of appearance in a court of
justice on a given question. In
private suits, standing is governed
by the real-parties-in interest rule
as contained in Section 2, Rule 3 of
the 1997 Rules of Civil Procedure, as
amended. It provides that every
action must be prosecuted or
defended in the name of the real
party in interest. Accordingly, the
real-party-in interest is the party
who stands to be benefited or injured
by the judgment in the suit or the
party entitled to the avails of the
suit. Succinctly put, the plaintiffs
standing is based on his own right to
the relief sought.
The
difficulty
of
determining locus
standi arises
in public suits. Here, the plaintiff who
asserts a public right in assailing
an allegedly illegal official action,
does so as a representative of the
general public. He may be a person
who is affected no differently from
any other person. He could be suing
as a stranger, or in the category of
a citizen, or taxpayer. In either
case, he has to adequately show that
he is entitled to seek judicial
protection. In other words, he has
to make out a sufficient interest in
the vindication of the public order
and the securing of relief as a
citizen or taxpayer.
Case law in most jurisdictions
now allows both citizen and
taxpayer
standing
in
public
actions. The distinction was first
laid down in Beauchamp v. Silk,
where it was held that the plaintiff in
a taxpayers suit is in a different
category from the plaintiff in a
citizens suit. In the former, the
plaintiff
is
affected
by
the
expenditure of public funds, while in
the latter, he is but the mere
instrument
of
the
public

94

concern. As held by the New York

Supreme Court in People ex rel Case
v. Collins: In matter of mere public
right, howeverthe people are the
real partiesIt is at least the right, if
not the duty, of every citizen to
interfere and see that a public
offence be properly pursued and
punished, and that a public grievance
be remedied. With respect to
taxpayers suits, Terr v. Jordan held
that the right of a citizen and a
taxpayer to maintain an action in
courts to restrain the unlawful use of
public funds to his injury cannot be
denied.
However, to prevent just
about any person from seeking
judicial interference in any official
policy or act with which he disagreed
with, and thus hinders the activities
of governmental agencies engaged in
public service, the United State
Supreme Court laid down the more
stringent direct injury test in Ex
Parte
Levitt,
later
reaffirmed
in Tileston v. Ullman. The same
Court ruled that for a private
individual to invoke the judicial
power to determine the validity of an
executive or legislative action, he
must show that he has sustained
a direct injury as a result of that
action, and it is not sufficient
that he has a general interest
common to all members of the
public.
This
Court
adopted
the direct
injury
test in our
jurisdiction. In People v. Vera, it
held that the person who impugns
the validity of a statute must have a
personal and substantial interest
in the case such that he has
sustained, or will sustain direct
injury
as
a
result. The Vera doctrine
was
upheld in a litany of cases, such
as, Custodio v. President of the
Senate, Manila Race Horse Trainers
Association v. De la Fuente, Pascual
v.
Secretary
of
Public
Works and Anti-Chinese League of
the Philippines v. Felix. [Emphases
included. Citations omitted]

Notwithstanding, the Court leans on the

doctrine that the rule on standing is a matter of
procedure, hence, can be relaxed for nontraditional
plaintiffs like ordinary citizens, taxpayers, and
legislators when the public interest so requires,
such as when the matter is of transcendental
importance, of overreaching significance to
society, or of paramount public interest.[25]
Thus, in Coconut Oil Refiners Association,
Inc. v. Torres,[26] the Court held that in cases of
paramount importance where serious constitutional
questions are involved, the standing requirements
may be relaxed and a suit may be allowed to
prosper even where there is no direct injury to the
party claiming the right of judicial review. In the
first Emergency Powers Cases,[27] ordinary citizens
and taxpayers were allowed to question the
constitutionality of several executive orders
although they had only an indirect and general
interest shared in common with the public.
The OSG claims that the determinants of
transcendental importance[28] laid down in CREBA
v. ERC and Meralco[29] are non-existent in this
case. The Court, however, finds reason in
Biraogos assertion that the petition covers matters
of transcendental importance to justify the exercise
of
jurisdiction
by
the
Court. There
are constitutional issues in the petition which
deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents.
Where the issues are of transcendental and
paramount importance not only to the public but
also to the Bench and the Bar, they should be
resolved for the guidance of all.[30]Undoubtedly, the
Filipino people are more than interested to know
the status of the Presidents first effort to bring
about a promised change to the country. The
Court takes cognizance of the petition not due to
overwhelming political undertones that clothe the
issue in the eyes of the public, but because the
Court stands firm in its oath to perform its
constitutional duty to settle legal controversies with
overreaching significance to society.
Power of the President to Create the Truth
Commission
In his memorandum in G.R. No. 192935,
Biraogo asserts that the Truth Commission is a
public office and not merely an adjunct body of the
Office of the President.[31] Thus, in order that the
President may create a public office he must be
empowered by the Constitution, a statute or an

95

authorization vested in him by law. According to

petitioner, such power cannot be presumed[32]since
there is no provision in the Constitution or any
specific law that authorizes the President to create
a truth commission.[33] He adds that Section 31 of
the Administrative Code of 1987, granting the
President the continuing authority to reorganize his
office, cannot serve as basis for the creation of a
truth commission considering the aforesaid
provision merely uses verbs such as reorganize,
transfer,
consolidate,
merge,
and
abolish.[34] Insofar as it vests in the President the
plenary power to reorganize the Office of the
President to the extent of creating a public office,
Section 31 is inconsistent with the principle of
separation of powers enshrined in the Constitution
and must be deemed repealed upon the effectivity
thereof.[35]
Similarly, in G.R. No. 193036, petitionerslegislators argue that the creation of a public office
lies within the province of Congress and not with
the executive branch of government. They
maintain that the delegated authority of the
President to reorganize under Section 31 of the
Revised Administrative Code: 1) does not permit
the President to create a public office, much less a
truth
commission;
2)
is
limited
to
the
reorganization of the administrative structure of
the Office of the President; 3) is limited to the
restructuring of the internal organs of the Office of
the President Proper, transfer of functions and
transfer of agencies; and 4) only to achieve
simplicity,
economy
and
efficiency.[36] Such
continuing authority of the President to reorganize
his office is limited, and by issuing Executive Order
No. 1, the President overstepped the limits of this
delegated authority.
The OSG counters that there is nothing
exclusively legislative about the creation by the
President of a fact-finding body such as a truth
commission. Pointing to numerous offices created
by past presidents, it argues that the authority of
the President to create public offices within the
Office of the President Proper has long been
recognized.[37] According
to
the
OSG,
the
Executive, just like the other two branches of
government, possesses the inherent authority to
create fact-finding committees to assist it in the
performance of its constitutionally mandated
functions and in the exercise of its administrative
functions.[38] This power, as the OSG explains it, is
but an adjunct of the plenary powers wielded by
the President under Section 1 and his power of
control under Section 17, both of Article VII of the
Constitution.[39]

It contends that the President is necessarily

vested with the power to conduct fact-finding
investigations, pursuant to his duty to ensure that
all laws are enforced by public officials and
employees of his department and in the exercise of
his authority to assume directly the functions of the
executive department, bureau and office, or
interfere with the discretion of his officials.[40] The
power of the President to investigate is not limited
to the exercise of his power of control over his
subordinates in the executive branch, but extends
further in the exercise of his other powers, such as
his power to discipline subordinates,[41] his power
for rule making, adjudication and licensing
purposes[42] and in order to be informed on matters
which he is entitled to know.[43]
The OSG also cites the recent case of Banda
v. Ermita,[44] where it was held that the President
has the power to reorganize the offices and
agencies in the executive department in line with
his constitutionally granted power of control and by
virtue of a valid delegation of the legislative power
to reorganize executive offices under existing
statutes.
Thus, the OSG concludes that the power of
control necessarily includes the power to create
offices. For the OSG, the President may create the
PTC in order to, among others, put a closure to the
reported large scale graft and corruption in the
government.[45]
The question, therefore, before the Court is
this: Does the creation of the PTC fall within the
ambit of the power to reorganize as expressed in
Section 31 of the Revised Administrative Code?
Section 31 contemplates reorganization as
limited by the following functional and structural
lines: (1) restructuring the internal organization of
the Office of the President Proper by abolishing,
consolidating or merging units thereof or
transferring functions from one unit to another; (2)
transferring any function under the Office of the
President to any other Department/Agency or vice
versa; or (3) transferring any agency under the
Office
of
the
President
to
any
other
Department/Agency or vice versa. Clearly, the
provision refers to reduction of personnel,
consolidation of offices, or abolition thereof by
reason
of
economy
or
redundancy
of
functions. These point to situations where a body
or an office is already existent but a modification or
alteration thereof has to be effected. The creation
of an office is nowhere mentioned, much less

96

envisioned in said provision. Accordingly, the

answer to the question is in the negative.
To say that the PTC is borne out of a
restructuring of the Office of the President under
Section 31 is a misplaced supposition, even in the
plainest meaning attributable to the term
restructure an alteration of an existing
structure. Evidently, the PTC was not part of the
structure of the Office of the President prior to the
enactment of Executive Order No. 1. As held
in Buklod ng Kawaning EIIB v. Hon. Executive
Secretary,[46]
But of course, the list of legal
basis authorizing the President to
reorganize
any
department
or
agency in the executive branch does
not have to end here. We must not
lose sight of the very source of the
power that which constitutes an
express grant of power. Under
Section 31, Book III of Executive
Order No. 292 (otherwise known as
the Administrative Code of 1987),
"the President, subject to the policy
in the Executive Office and in order
to achieve simplicity, economy and
efficiency, shall have the continuing
authority
to
reorganize
the
administrative structure of the Office
of the President." For this purpose,
he may transfer the functions of
other Departments or Agencies to
the Office of the President. In
Canonizado v. Aguirre [323 SCRA
312
(2000)],
we
ruled
that
reorganization
"involves
the
reduction of personnel, consolidation
of offices, or abolition thereof by
reason of economy or redundancy of
functions." It takes place when
there is an alteration of the
existing structure of government
offices or units therein, including
the lines of control, authority and
responsibility between them. The
EIIB is a bureau attached to the
Department of Finance. It falls under
the Office of the President. Hence, it
is
subject
to
the
Presidents
continuing authority to reorganize.
[Emphasis Supplied]

In the same vein, the creation of the PTC is

not justified by the Presidents power of control.
Control is essentially the power to alter or modify
or nullify or set aside what a subordinate officer
had done in the performance of his duties and to
substitute the judgment of the former with that of
the latter.[47] Clearly, the power of control is
entirely different from the power to create public
offices. The former is inherent in the Executive,
while the latter finds basis from either a valid
delegation from Congress, or his inherent duty to
faithfully execute the laws.
The question is this, is there a valid
delegation of power from Congress, empowering
the President to create a public office?
According to the OSG, the power to create a
truth commission pursuant to the above provision
finds statutory basis under P.D. 1416, as amended
by P.D. No. 1772.[48] The said law granted the
President the continuing authority to reorganize
the national government, including the power to
group, consolidate bureaus and agencies, to
abolish offices, to transfer functions, to create and
classify functions, services and activities, transfer
appropriations, and to standardize salaries and
materials. This decree, in relation to Section 20,
Title I, Book III of E.O. 292 has been invoked in
several
cases
such
as Larin
v.
Executive
Secretary.[49]
The Court, however, declines to recognize
P.D. No. 1416 as a justification for the President to
create a public office. Said decree is already stale,
anachronistic and inoperable. P.D. No. 1416 was a
delegation to then President Marcos of the
authority to reorganize the administrative structure
of the national government including the power to
create offices and transfer appropriations pursuant
to one of the purposes of the decree, embodied in
its last Whereas clause:
WHEREAS,
the transition towards
the parliamentary
form
of
government will necessitate flexibility
in the organization of the national
government.
Clearly, as it was only for the purpose of
providing manageability and resiliency during the
interim, P.D. No. 1416, as amended by P.D. No.
1772, became functus oficio upon the convening
of the First Congress, as expressly provided in
Section
6,
Article
XVIII
of
the
1987

97

Constitution. In fact, even the Solicitor General

agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO:
Because P.D. 1416 was enacted was
the last whereas clause of P.D. 1416
says it was enacted to prepare the
transition from presidential to
parliamentary. Now, in a
parliamentary form of government,
the legislative and executive powers
are fused, correct?
SOLICITOR GENERAL
CADIZ:
Yes, Your Honor.
ASSOCIATE JUSTICE
CARPIO:
That is why, that P.D.
1416 was issued. Now would you
agree with me that P.D. 1416 should
not be considered effective anymore
upon the promulgation, adoption,
ratification of the 1987 Constitution.
SOLICITOR GENERAL
CADIZ:
Not the whole of P.D.
[No.] 1416, Your Honor.
ASSOCIATE JUSTICE
CARPIO:
The power of the
President to reorganize the entire
National Government is deemed
repealed, at least, upon the adoption
of the 1987 Constitution, correct.
SOLICITOR GENERAL
CADIZ:
Yes, Your Honor.[50]
While the power to create a truth
commission cannot pass muster on the basis of
P.D. No. 1416 as amended by P.D. No. 1772, the
creation of the PTC finds justification under Section
17, Article VII of the Constitution, imposing upon
the President the duty to ensure that the laws are
faithfully executed. Section 17 reads:
Section 17. The President
shall have control of all the executive
departments,
bureaus,
and
offices. He shall ensure that the
laws
be
faithfully
executed. (Emphasis supplied).

As correctly pointed out by the respondents,

the allocation of power in the three principal
branches of government is a grant of all powers
inherent in them. The Presidents power to conduct
investigations to aid him in ensuring the faithful
execution of laws in this case, fundamental laws
on public accountability and transparency is
inherent in the Presidents powers as the Chief
Executive. That the authority of the President to
conduct investigations and to create bodies to
execute this power is not explicitly mentioned in
the Constitution or in statutes does not mean that
he is bereft of such authority.[51] As explained in
the landmark case of Marcos v. Manglapus:[52]
x x x. The 1987 Constitution,
however,
brought
back
the
presidential system of government
and restored the separation of
legislative, executive and judicial
powers by their actual distribution
among three distinct branches of
government
with
provision
for
checks and balances.
It would not be accurate,
however, to state that "executive
power" is the power to enforce the
laws, for the President is head of
state as well as head of government
and whatever powers inhere in such
positions pertain to the office unless
the Constitution itself withholds
it. Furthermore, the Constitution
itself provides that the execution of
the laws is only one of the powers of
the President. It also grants the
President other powers that do not
involve the execution
of
any
provision of law,e.g., his power over
the country's foreign relations.
On these premises, we hold
the view that although the 1987
Constitution imposes limitations on
the exercise of specificpowers of the
President, it maintains intact what is
traditionally considered as within the
scope
of
"executive
power." Corollarily, the powers of the
President cannot be said to be
limited only to the specific powers
enumerated in the Constitution. In
other words, executive power is
more than the sum of specific
powers so enumerated.

98

It has been advanced that

whatever power inherent in the
government that is neither legislative
nor judicial has to be executive. x x
x.
Indeed, the Executive is given much leeway
in ensuring that our laws are faithfully executed. As
stated above, the powers of the President are not
limited to those specific powers under the
Constitution.[53] One of the recognized powers of
the
President
granted
pursuant
to
this
constitutionally-mandated duty is the power to
create ad hoc committees. This flows from the
obvious need to ascertain facts and determine if
laws have been faithfully executed. Thus,
in Department of Health v. Camposano,[54] the
authority of the President to issue Administrative
Order No. 298, creating an investigative committee
to look into the administrative charges filed against
the employees of the Department of Health for the
anomalous purchase of medicines was upheld. In
said case, it was ruled:
The
Chief
Executives
power
to
create
the Ad
hoc Investigating
Committee
cannot be doubted. Having been
constitutionally granted full control of
the Executive Department, to which
respondents belong, the President
has the obligation to ensure that all
executive officials and employees
faithfully comply with the law. With
AO 298 as mandate, the legality of
the investigation is sustained. Such
validity is not affected by the fact
that the investigating team and the
PCAGC had the same composition, or
that the former used the offices and
facilities of the latter in conducting
the inquiry. [Emphasis supplied]
It should be stressed that the purpose of
allowing ad hoc investigating bodies to exist is to
allow an inquiry into matters which the President is
entitled to know so that he can be properly advised
and guided in the performance of his duties
relative to the execution and enforcement of the
laws of the land. And if history is to be revisited,
this was also the objective of the investigative
bodies created in the past like the PCAC, PCAPE,
PARGO, the Feliciano Commission, the Melo
Commission and the Zenarosa Commission. There
being no changes in the government structure, the

Court is not inclined to declare such executive

power as non-existent just because the direction of
the political winds have changed.
On the charge that Executive Order No. 1
transgresses the power of Congress to appropriate
funds for the operation of a public office, suffice it
to say that there will be no appropriation but only
an allotment or allocations of existing funds
already appropriated. Accordingly, there is no
usurpation on the part of the Executive of the
power of Congress to appropriate funds. Further,
there is no need to specify the amount to be
earmarked for the operation of the commission
because, in the words of the Solicitor General,
whatever funds the Congress has provided for the
Office of the President will be the very source of
the funds for the commission.[55] Moreover, since
the amount that would be allocated to the PTC
shall be subject to existing auditing rules and
regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The
Presidents
power
to
conduct
investigations to ensure that laws are faithfully
executed
is
well
recognized. It flows
from
the faithful-execution clause of the Constitution
under Article VII, Section 17 thereof.[56] As the
Chief Executive, the president represents the
government as a whole and sees to it that all laws
are enforced by the officials and employees of his
department. He has the authority to directly
assume
the
functions
of
the
executive
department.[57]
Invoking this authority, the President
constituted the PTC to primarily investigate reports
of graft and corruption and to recommend the
appropriate action. As previously stated, no quasijudicial powers have been vested in the said body
as it cannot adjudicate rights of persons who come
before it. It has been said that Quasi-judicial
powers involve the power to hear and determine
questions of fact to which the legislative policy is to
apply and to decide in accordance with the
standards laid down by law itself in enforcing and
administering the same law.[58] In simpler terms,
judicial discretion is involved in the exercise of
these quasi-judicial power, such that it is
exclusively vested in the judiciary and must be
clearly authorized by the legislature in the case of
administrative agencies.
The distinction between the power to
investigate and the power to adjudicate was

99

delineated by the Court in Cario v. Commission on

Human Rights.[59] Thus:
"Investigate," commonly
understood, means to examine,
explore, inquire or delve or probe
into, research on, study. The
dictionary definition of "investigate"
is "to observe or study closely:
inquire
into
systematically: "to
search or inquire into: x x to subject
to an official probe x x: to conduct an
official inquiry." The purpose of
investigation, of course, is to
discover, to find out, to learn, obtain
information. Nowhere included or
intimated is the notion of settling,
deciding or resolving a controversy
involved in the facts inquired into by
application of the law to the facts
established by the inquiry.
The
legal
meaning
of
"investigate" is essentially the same:
"(t)o follow up step by step by
patient inquiry or observation. To
trace or track; to search into; to
examine and inquire into with care
and accuracy; to find out by careful
inquisition; examination; the taking
of evidence; a legal inquiry;" "to
inquire; to make an investigation,"
"investigation"
being
in
turn
described as "(a)n administrative
function, the exercise of which
ordinarily does not require a hearing.
2 Am J2d Adm L Sec. 257; x x an
inquiry, judicial or otherwise, for the
discovery and collection of facts
concerning a certain matter or
matters."
"Adjudicate," commonly
or
popularly understood, means to
adjudge, arbitrate, judge, decide,
determine, resolve, rule on, settle.
The dictionary defines the term as
"to settle finally (the rights and
duties of the parties to a court case)
on the merits of issues raised: x x to
pass judgment on: settle judicially: x
x act as judge." And "adjudge"
means "to decide or rule upon as a
judge or with judicial or quasi-judicial
powers: x x to award or grant
judicially in a case of controversy x
x."

In
the
legal
sense,
"adjudicate" means: "To settle in the
exercise of judicial authority. To
determine
finally.
Synonymous
with adjudge in its strictest sense;"
and "adjudge" means: "To pass on
judicially, to decide, settle or decree,
or to sentence or condemn. x x.
Implies a judicial determination of a
fact,
and
the
entry
of
a
judgment." [Italics
included.
Citations Omitted]
Fact-finding is not adjudication and it
cannot be likened to the judicial function of a court
of justice, or even a quasi-judicial agency or office.
The function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a
judicial function. To be considered as such, the act
of receiving evidence and arriving at factual
conclusions in a controversy must be accompanied
by the authority of applying the law to the factual
conclusions to the end that the controversy may be
decided or resolved authoritatively, finally and
definitively, subject to appeals or modes of review
as may be provided by law.[60] Even respondents
themselves admit that the commission is bereft of
any quasi-judicial power.[61]
Contrary to petitioners apprehension, the
PTC will not supplant the Ombudsman or the DOJ
or erode their respective powers. If at all, the
investigative function of the commission will
complement those of the two offices. As pointed
out by the Solicitor General, the recommendation
to prosecute is but a consequence of the overall
task of the commission to conduct a fact-finding
investigation.[62] The
actual
prosecution
of
suspected offenders, much less adjudication on the
merits of the charges against them,[63] is certainly
not a function given to the commission. The
phrase, when in the course of its investigation,
under Section 2(g), highlights this fact and gives
credence to a contrary interpretation from that of
the petitioners. The function of determining
probable cause for the filing of the appropriate
complaints before the courts remains to be with
the DOJ and the Ombudsman.[64]
At any rate, the Ombudsmans power to
investigate under R.A. No. 6770 is not exclusive
but is shared with other similarly authorized
government
agencies.
Thus,
in
the
case
of Ombudsman v. Galicia,[65] it was written:
This power of investigation
granted to the Ombudsman by the

100

1987
Constitution
and
The
Ombudsman Act is not exclusive
but is shared with other similarly
authorized
government
agencies such as the PCGG and
judges of municipal trial courts and
municipal circuit trial courts. The
power
to
conduct
preliminary
investigation on charges against
public employees and officials is
likewise concurrently shared with the
Department of Justice. Despite the
passage of the Local Government
Code in 1991, the Ombudsman
retains concurrent jurisdiction with
the Office of the President and the
local Sanggunians to
investigate
complaints against local elective
officials. [Emphasis supplied].

Title III, Book IV in the Revised Administrative

Code is by no means exclusive and, thus, can be
shared with a body likewise tasked to investigate
the commission of crimes.
Finally, nowhere in Executive Order No. 1
can it be inferred that the findings of the PTC are
to be accorded conclusiveness. Much like its
predecessors, the Davide Commission, the
Feliciano
Commission
and
the
Zenarosa
Commission, its findings would, at best, be
recommendatory in nature. And being so, the
Ombudsman and the DOJ have a wider degree of
latitude to decide whether or not to reject the
recommendation. These offices, therefore, are not
deprived of their mandated duties but will instead
be aided by the reports of the PTC for possible
indictments for violations of graft laws.
Violation of the Equal Protection Clause

Also, Executive Order No. 1 cannot

contravene the power of the Ombudsman to
investigate criminal cases under Section 15 (1) of
R.A. No. 6770, which states:
(1) Investigate and prosecute
on its own or on complaint by any
person, any act or omission of any
public officer or employee, office or
agency, when such act or omission
appears to be illegal, unjust,
improper
or
inefficient.
It
has primary
jurisdiction over
cases
cognizable
by
the
Sandiganbayan and, in the exercise
of its primary jurisdiction, it may
take over, at any stage, from any
investigatory
agency
of
government, the investigation of
such cases. [Emphases supplied]
The act of investigation by the Ombudsman
as enunciated above contemplates the conduct of a
preliminary investigation or the determination of
the existence
of
probable cause. This
is
categorically out of the PTCs sphere of
functions. Its power to investigate is limited to
obtaining facts so that it can advise and guide the
President in the performance of his duties relative
to the execution and enforcement of the laws of
the land. In this regard, the PTC commits no act of
usurpation of the Ombudsmans primordial duties.
The same holds true with respect to the
DOJ. Its authority under Section 3 (2), Chapter 1,

Although the purpose of the Truth

Commission falls within the investigative power of
the President, the Court finds difficulty in upholding
the constitutionality of Executive Order No. 1 in
view of its apparent transgression of the equal
protection clause enshrined in Section 1, Article III
(Bill of Rights) of the 1987 Constitution. Section 1
reads:
Section 1. No person shall be
deprived of life, liberty, or property
without due process of law, nor
shall any person be denied the
equal protection of the laws.
The petitioners assail Executive Order No. 1
because it is violative of this constitutional
safeguard. They contend that it does not apply
equally to all members of the same class such that
the intent of singling out the previous
administration as its sole object makes the PTC an
adventure in partisan hostility.[66] Thus, in order
to be accorded with validity, the commission must
also cover reports of graft and corruption in
virtually all administrations previous to that of
former President Arroyo.[67]
The petitioners argue that the search for
truth behind the reported cases of graft and
corruption must encompass acts committed not
only during the administration of former President
Arroyo but also during prior administrations where
the same magnitude of controversies and
anomalies[68] were
reported
to
have
been
committed against the Filipino people. They assail

101

the classification formulated by the respondents as

it does not fall under the recognized exceptions
because first, there is no substantial distinction
between the group of officials targeted for
investigation by Executive Order No. 1 and other
groups or persons who abused their public office
for personal gain; and second, the selective
classification is not germane to the purpose of
Executive Order No. 1 to end corruption.[69] In
order to attain constitutional permission, the
petitioners advocate that the commission should
deal with graft and grafters prior and subsequent
to the Arroyo administration with the strong arm of
the law with equal force.[70]
Position of respondents
According to respondents, while Executive
Order No. 1 identifies the previous administration
as the initial subject of the investigation, following
Section 17 thereof, the PTC will not confine itself to
cases of large scale graft and corruption solely
during
the
said
administration.[71] Assuming arguendo that
the
commission would confine its proceedings to
officials of the previous administration, the
petitioners argue that no offense is committed
against the equal protection clause for the
segregation of the transactions of public officers
during the previous administration as possible
subjects of investigation is a valid classification
based on substantial distinctions and is germane to
the evils which the Executive Order seeks to
correct.[72] To
distinguish
the
Arroyo
administration from past administrations, it recited
the following:
First. E.O. No. 1 was issued in
view of widespread reports of large
scale graft and corruption in the
previous administration which have
eroded public confidence in public
institutions. There is, therefore, an
urgent call for the determination of
the truth regarding certain reports of
large scale graft and corruption in
the government and to put a closure
to them by the filing of the
appropriate cases against those
involved, if warranted, and to deter
others from committing the evil,
restore the peoples faith and
confidence in the Government and in
their public servants.
Second. The segregation of
the preceding administration as the

object of fact-finding is warranted by

the
reality
that
unlike
with
administrations
long gone, the
current administration will most
likely
bear
the
immediate
consequence of the policies of the
previous administration.
Third. The classification of
the previous administration as a
separate class for investigation lies
in the reality that the evidence of
possible
criminal
activity,
the
evidence that could lead to recovery
of public monies illegally dissipated,
the policy lessons to be learned to
ensure that anti-corruption laws are
faithfully executed, are more easily
established in
the
regime
that
immediately precede the current
administration.
Fourth. Many administrations
subject the transactions of their
predecessors to investigations to
provide closure to issues that are
pivotal to national life or even as a
routine measure of due diligence and
good housekeeping by a nascent
administration like the Presidential
Commission on Good Government
(PCGG),
created
by
the
late
President Corazon C. Aquino under
Executive Order No. 1 to pursue the
recovery of ill-gotten wealth of her
predecessor
former
President
Ferdinand Marcos and his cronies,
and
the Saguisag Commission
created by former President Joseph
Estrada under Administrative Order
No, 53, to form an ad-hoc and
independent citizens committee to
investigate
all
the
facts
and
circumstances
surrounding
Philippine Centennial projects of his
predecessor, former President Fidel
V. Ramos.[73] [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this
government was founded is that of the equality of
right which is embodied in Section 1, Article III of
the 1987 Constitution. The equal protection of the
laws is embraced in the concept of due process, as
every
unfair
discrimination
offends
the
requirements of justice and fair play. It has been

102

embodied in a separate clause, however, to

provide for a more specific guaranty against any
form of undue favoritism or hostility from the
government. Arbitrariness in general may be
challenged on the basis of the due process clause.
But if the particular act assailed partakes of an
unwarranted partiality or prejudice, the sharper
weapon
to
cut
it
down
is
the equal
protection clause.[74]
According to a long line of decisions, equal
protection simply requires that all persons or
things
similarly
situated should
be
treated
alike, both
as
to
rights
conferred
and
responsibilities imposed.[75] It requires public
bodies and institutions to treat similarly situated
individuals in a similar manner.[76] The purpose of
the equal protection clause is to secure every
person within a states jurisdiction against
intentional and arbitrary discrimination, whether
occasioned by the express terms of a statue or by
its improper execution through the states duly
constituted authorities.[77] In other words, the
concept of equal justice under the law requires the
state to govern impartially, and it may not draw
distinctions
between
individuals
solely
on
differences that are irrelevant to a legitimate
governmental objective.[78]
The equal protection clause is aimed at all
official state actions, not just those of the
legislature.[79] Its
inhibitions
cover
all
the
departments of the government including the
political and executive departments, and extend to
all actions of a state denying equal protection of
the laws, through whatever agency or whatever
guise is taken. [80]
It, however, does not require the universal
application of the laws to all persons or things
without distinction. What it simply requires is
equality among equals as determined according to
a valid classification. Indeed, the equal protection
clause permits classification. Such classification,
however, to be valid must pass the test
of reasonableness. The test has four requisites:
(1) The classification rests on substantial
distinctions; (2) It is germane to the purpose of
the law; (3) It is not limited to existing conditions
only;
and

103

(4) It applies equally to all members of the same

class.[81] Superficial differences do not make for a
valid classification.[82]
For
a
classification
to
meet
the
requirements of constitutionality, it must include or
embrace all persons who naturally belong to the
class.[83] The classification will be regarded as
invalid if all the members of the class are not
similarly treated, both as to rights conferred and
obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in
the sense that the members of the class should
possess the same characteristics in equal
degree. Substantial similarity will suffice; and as
long as this is achieved, all those covered by the
classification are to be treated equally. The mere
fact that an individual belonging to a class differs
from the other members, as long as that class is
substantially distinguishable from all others, does
not justify the non-application of the law to
him.[84]
The classification must not be based on
existing circumstances only, or so constituted as to
preclude addition to the number included in the
class. It must be of such a nature as to embrace all
those who may thereafter be in similar
circumstances and conditions. It must not leave
out or underinclude those that should otherwise
fall into a certain classification. As elucidated
inVictoriano v. Elizalde Rope Workers' Union[85] and
reiterated in a long line of cases,[86]
The
guaranty
of
equal
protection of the laws is not a
guaranty
of
equality
in
the
application of the laws upon all
citizens of the state. It is not,
therefore, a requirement, in order to
avoid the constitutional prohibition
against inequality, that every man,
woman and child should be affected
alike by a statute. Equality of
operation of statutes does not mean
indiscriminate operation on persons
merely as such, but on persons
according to the circumstances
surrounding them. It guarantees
equality, not identity of rights. The
Constitution does not require that
things which are different in fact be
treated in law as though they were
the same. The equal protection
clause does not forbid discrimination
as to things that are different. It
does not prohibit legislation which is
limited either in the object to which it

is directed or by the territory within

which it is to operate.
The equal protection of the
laws clause of the Constitution allows
classification. Classification in law, as
in
the
other
departments
of
knowledge or practice, is the
grouping of things in speculation or
practice because they agree with one
another in certain particulars. A law
is not invalid because of simple
inequality.
The
very
idea
of
classification is that of inequality, so
that it goes without saying that the
mere fact of inequality in no manner
determines
the
matter
of
constitutionality. All that is required
of a valid classification is that it be
reasonable, which means that the
classification should be based on
substantial distinctions which make
for real differences, that it must be
germane to the purpose of the law;
that it must not be limited to existing
conditions only; and that it must
apply equally to each member of the
class. This Court has held that the
standard
is
satisfied
if
the
classification or distinction is based
on a reasonable foundation or
rational basis and is not palpably
arbitrary. [Citations omitted]
Applying these precepts to this case,
Executive Order No. 1 should be struck down as
violative of the equal protection clause. The clear
mandate of the envisioned truth commission is to
investigate and find out the truth concerning the
reported cases of graft and corruption during
the previous administration[87] only. The intent to
single out the previous administration is plain,
patent and manifest. Mention of it has been made
in at least three portions of the questioned
executive order. Specifically, these are:
WHEREAS, there is a need for a
separate body dedicated solely to
investigating and finding out the
truth concerning the reported cases
of graft and corruption during
the previous administration, and
which
will
recommend
the
prosecution of the offenders and
secure justice for all;

104

SECTION
1.
Creation
of
a
Commission. There is hereby
created
the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to
as the COMMISSION, which shall
primarily seek and find the truth on,
and toward this end, investigate
reports of graft and corruption of
such scale and magnitude that shock
and offend the moral and ethical
sensibilities of the people, committed
by public officers and employees,
their co-principals, accomplices and
accessories from the private sector,
if
any,
during
the previous
administration;
and
thereafter
recommend the appropriate action or
measure to be taken thereon to
ensure that the full measure of
justice shall be served without fear
or favor.
SECTION 2. Powers and Functions.
The Commission, which shall have all
the powers of an investigative body
under Section 37, Chapter 9, Book I
of the Administrative Code of 1987,
is primarily tasked to conduct a
thorough fact-finding investigation of
reported
cases
of
graft
and
corruption referred to in Section 1,
involving third level public officers
and higher, their
co-principals,
accomplices and accessories from the
private sector, if any, during
the previous
administration and
thereafter submit its finding and
recommendations to the President,
Congress and the Ombudsman.
[Emphases supplied]
In this regard, it must be borne in mind that
the Arroyo administration is but just a member of a
class, that is, a class of past administrations. It is
not a class of its own. Not to include past
administrations
similarly
situated constitutes
arbitrariness which the equal protection clause
cannot
sanction. Such
discriminating
differentiation clearly reverberates to label the
commission as a vehicle for vindictiveness and
selective retribution.
Though the OSG enumerates several
differences between the Arroyo administration and
other past administrations, these distinctions are
not substantial enough to merit the restriction of
the investigation to the previous administration

only. The reports of widespread corruption in the

Arroyo administration cannot be taken as basis for
distinguishing said administration from earlier
administrations which were also blemished by
similar widespread reports of impropriety. They are
not inherent in, and do not inure solely to, the
Arroyo administration. As Justice Isagani Cruz put
it, Superficial differences do not make for a valid
classification.[88]
The public needs to be enlightened why
Executive Order No. 1 chooses to limit the scope of
the intended investigation to the previous
administration only. The OSG ventures to opine
that to include other past administrations, at this
point,
may
unnecessarily
overburden
the
commission
and
lead
it
to
lose
its
effectiveness.[89] The reason given is specious. It
is without doubt irrelevant to the legitimate and
noble objective of the PTC to stamp out or end
corruption and the evil it breeds.[90]
The probability that there would be difficulty
in unearthing evidence or that the earlier reports
involving the earlier administrations were already
inquired into is beside the point. Obviously,
deceased presidents and cases which have already
prescribed can no longer be the subjects of inquiry
by the PTC. Neither is the PTC expected to conduct
simultaneous
investigations
of
previous
administrations, given the bodys limited time and
resources. The law does not require the
impossible (Lex non cogit ad impossibilia).[91]
Given the foregoing physical and legal
impossibility, the Court logically recognizes the
unfeasibility of investigating almost a centurys
worth of graft cases. However, the fact remains
that Executive Order No. 1 suffers from arbitrary
classification. The PTC, to be true to its mandate
of searching for the truth, must not exclude the
other past administrations. The PTC must, at
least, have the authority to investigate all past
administrations. While reasonable
prioritization is permitted, it should not be
arbitrary lest it be struck down for being
unconstitutional. In the often quoted language
of Yick Wo v. Hopkins,[92]

Though the law itself be fair

on its face and impartial in
appearance, yet, if applied and
administered by public authority with
an evil eye and an unequal hand, so

105

as practically to make unjust and

illegal
discriminations
between
persons in similar circumstances,
material to their rights, the denial
of equal justice is still within the
prohibition
of
the
constitution. [Emphasis supplied]
It could be argued that considering that the
PTC is an ad hoc body, its scope is limited. The
Court, however, is of the considered view that
although its focus is restricted, the constitutional
guarantee of equal protection under the laws
should not in any way be circumvented. The
Constitution is the fundamental and paramount law
of the nation to which all other laws must conform
and in accordance with which all private rights
determined
and
all
public
authority
administered.[93] Laws that do not conform to the
Constitution should be stricken down for being
unconstitutional.[94] While the thrust of the PTC is
specific, that is, for investigation of acts of graft
and corruption, Executive Order No. 1, to survive,
must be read together with the provisions of the
Constitution. To
exclude
the
earlier
administrations in the guise of substantial
distinctions would only confirm the petitioners
lament that the subject executive order is only an
adventure in partisan hostility. In the case of US
v. Cyprian,[95] it was written: A rather limited
number of such classifications have routinely been
held or assumed to be arbitrary; those include:
race, national origin, gender, political activity or
membership in a political party, union activity or
membership in a labor union, or more generally
the exercise of first amendment rights.
To reiterate, in order for a classification to
meet the requirements of constitutionality, it must
include or embrace all persons who naturally
belong to the class.[96] Such a classification must
not be based on existing circumstances only, or so
constituted as to preclude additions to the number
included within a class, but must be of such a
nature as to embrace all those who may thereafter
be
in
similar
circumstances
and
conditions. Furthermore, all who are in situations
and circumstances which are relative to the
discriminatory
legislation
and
which
are
indistinguishable from those of the members of the
class must be brought under the influence of the
law and treated by it in the same way as are the
members of the class.[97]
The Court is not unaware that mere
underinclusiveness is not fatal to the validity of a
law
under
the
equal
protection

clause.[98] Legislation is not unconstitutional

merely because it is not all-embracing and does
not include all the evils within its reach.[99] It has
been written that a regulation challenged under the
equal protection clause is not devoid of a rational
predicate simply because it happens to be
incomplete.[100] In
several
instances,
the
underinclusiveness was not considered a valid
reason to strike down a law or regulation where
the purpose can be attained in future legislations
or regulations. These cases refer to the step by
step process.[101] With regard to equal protection
claims, a legislature does not run the risk of losing
the entire remedial scheme simply because it fails,
through inadvertence or otherwise, to cover every
evil
that
might
conceivably
have
been
attacked.[102]
In Executive Order No. 1, however, there is
no inadvertence. That the previous administration
was picked out was deliberate and intentional as
can be gleaned from the fact that it was
underscored at least three times in the assailed
executive order. It must be noted that Executive
Order No. 1 does not even mention any particular
act, event or report to be focused on unlike the
investigative commissions created in the past. The
equal protection clause is violated by purposeful
and intentional discrimination.[103]
To disprove petitioners contention that
there is deliberate discrimination, the OSG clarifies
that the commission does not only confine itself to
cases of large scale graft and corruption committed
during the previous administration.[104] The OSG
points to Section 17 of Executive Order No. 1,
which provides:
SECTION
17. Special
Provision
Concerning Mandate. If and when in
the judgment of the President there
is a need to expand the mandate of
the Commission as defined in Section
1 hereof to include the investigation
of cases and instances of graft and
corruption
during
the
prior
administrations, such mandate may
be so extended accordingly by way
of a supplemental Executive Order.
The Court is not convinced. Although
Section 17 allows the President the discretion to
expand the scope of investigations of the PTC so as
to include the acts of graft and corruption
committed in other past administrations, it does

106

not guarantee that they would be covered in the

future. Such
expanded
mandate
of
the
commission will still depend on the whim and
caprice of the President. If he would decide not to
include them, the section would then be
meaningless. This will only fortify the fears of the
petitioners that the Executive Order No. 1 was
crafted to tailor-fit the prosecution of officials and
personalities of the Arroyo administration.[105]

includes the duty to rule on the constitutionality of

the application, or operation of presidential
decrees,
proclamations,
orders,
instructions,
ordinances,
and
other
regulations.
These
provisions, however, have been fertile grounds of
conflict between the Supreme Court, on one hand,
and the two co-equal bodies of government, on the
other. Many times the Court has been accused of
asserting superiority over the other departments.

The Court tried to seek guidance from the

pronouncement
in
the
case
of Virata
v.
Sandiganbayan,[106] that
the
PCGG
Charter
(composed of Executive Orders Nos. 1, 2 and 14)
does not violate the equal protection clause. The
decision, however, was devoid of any discussion on
how such conclusory statement was arrived at, the
principal issue in said case being only the
sufficiency of a cause of action.

To answer this accusation, the words of

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

A final word
The issue that seems to take center stage
at present is - whether or not the Supreme Court,
in the exercise of its constitutionally mandated
power of Judicial Review with respect to recent
initiatives of the legislature and the executive
department, is exercising undue interference. Is
the Highest Tribunal, which is expected to be the
protector of the Constitution, itself guilty of
violating fundamental tenets like the doctrine of
separation of powers? Time and again, this issue
has been addressed by the Court, but it seems that
the present political situation calls for it to once
again explain the legal basis of its action lest it
continually be accused of being a hindrance to the
nations thrust to progress.
The Philippine Supreme Court, according to
Article VIII, Section 1 of the 1987 Constitution, is
vested with Judicial Power that includes the duty
of the courts of justice to settle actual
controversies involving rights which are legally
demandable and enforceable, and to determine
whether or not there has been a grave of abuse of
discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the government.
Furthermore, in Section 4(2) thereof, it is
vested with the power of judicial review which is
the power to declare a treaty, international or
executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or
regulation unconstitutional. This power also

Thus, the Court, in exercising its power of

judicial review, is not imposing its own will upon a
co-equal body but rather simply making sure that
any act of government is done in consonance with
the authorities and rights allocated to it by the
Constitution. And, if after said review, the Court
finds no constitutional violations of any sort, then,
it has no more authority of proscribing the actions
under review. Otherwise, the Court will not be
deterred to pronounce said act as void and
unconstitutional.
It cannot be denied that most government
actions are inspired with noble intentions, all
geared towards the betterment of the nation and
its people. But then again, it is important to
remember this ethical principle: The end does not
justify the means. No matter how noble and
worthy of admiration the purpose of an act, but if
the means to be employed in accomplishing it is
simply
irreconcilable
with
constitutional
parameters, then it cannot still be allowed.[108] The
Court cannot just turn a blind eye and simply let it
pass. It will continue to uphold the Constitution
and its enshrined principles.
The Constitution must ever
remain supreme. All must bow to the
mandate of this law. Expediency
must not be allowed to sap its
strength nor greed for power debase
its rectitude.[109]

107

Lest it be misunderstood, this is not the

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

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC

G.R. No. 95367 May 23, 1995

COMMISSIONER JOSE T. ALMONTE, VILLAMOR
C. PEREZ, NERIO ROGADO, and ELISA
RIVERA, petitioners,
vs.
HONORABLE CONRADO M. VASQUEZ and
CONCERNED CITIZENS, respondents.

MENDOZA, J.:
This is a petition for certiorari, prohibition,
and mandamus to annul the subpoena duces
tecum and
orders
issued
by
respondent

Ombudsman, requiring petitioners Nerio Rogado

and Elisa Rivera, as chief accountant and record
custodian,
respectively,
of
the
Economic
Intelligence and Investigation Bureau (EIIB) to
produce "all documents relating to Personal
Services Funds for the year 1988 and all evidence,
such as vouchers (salary) for the whole plantilla of
EIIB for 1988" and to enjoin him from enforcing his
orders.
Petitioner
Jose
T.
Almonte
was
formerly
Commissioner of the EIIB, while Villamor C. Perez
is Chief of the EIIB's Budget and Fiscal
Management
Division.
The
subpoena duces
tecum was issued by the Ombudsman in
connection with his investigation of an anonymous
letter alleging that funds representing savings from
unfilled positions in the EIIB had been illegally
disbursed. The letter, purporting to have been
written by an employee of the EIIB and a
concerned citizen, was addressed to the Secretary
of Finance, with copies furnished several
government offices, including the Office of the
Ombudsman.
The letter reads in pertinent parts:
1 These are the things
that I have been
observing. During the
implementation of E.O.
127 on May 1, 1988,
one hundred ninety
(190) personnel were
dismissed. Before that
implementation,
we
had a monthly savings
of P500,000.00 from
unfilled
plantilla
position
plus
the
implementation of RA
6683 wherein seventy
(70)
regular
employees availed a
total
amount
of
P1,400,000.00
was
saved
from
the
government monthly.
The question is, how
do
they
used
or
disbursed this savings?
The
EIIB
has
a
syndicate headed by
the Chief of Budget
Division
who
is
manipulating
funds

108

and also the brain of

the so called "ghost
agents"
or
the
"Emergency
Intelligence
Agents"
(EIA).
The
Commissioner of EIIB
has a biggest share on
this.
Among
his
activities are:
a)
Supporti
ng RAM
wherein
he
is
involved
.
He
gives big
amount
especiall
y during
the Dec.
Failed
coup.
b)
Payment
for thirty
five (30)
mini
UZI's.
c)
Payment
for the
purchas
ed
of
Maxima
'87
for
personal
used of
the
Commis
sioner.
d)
Another
observat
ion was
the
agents
under
the
Director
of NCR

EIIB
is
the sole
operatin
g
unit
within
Metro
Manila
which
was
approve
d by no
less
than the
Commis
sioner
due
to
anomalo
us
activities
of
almost
all
agents
assigned
at
the
central
office
directly
under
the
Commis
sioner.
Retired
Brig.
Gen.
Almonte
as
one
of
the
AntiGraft
board
member
of
the
Departm
ent
of
Finance
should
not
tolerate
this.
However
,
the
Commis
sioner
did not
investig
ate his

109

own
men
instead,
he
placed
them
under
the 1530
payroll.
e) Many
more
which
are
personal
.
2. Sir, my question is
this. Can your good
office investigate EII
intelligence
funds
particularly
Personal
Services (01) Funds? I
wonder why the Dep't
of Budget & Mgmt.
cannot compel EIIB to
submit an actual filled
up position because
almost half of it are
vacant and still they
are releasing it. Are
EIIB plantilla position
classified?
It
is
included
in
the
Personal
Services
Itemization (PSI) and I
believe
it
is
not
classified and a ruling
from
Civil
Service
Commission that EIIB
is not exempted from
Civil Service. Another
info, when we had
salary differential last
Oct '88 all money for
the
whole
plantilla
were
released
and
from
that
alone,
Millions were saved
and converted to ghost
agents of EIA.
3. Another thing that I
have observed was the
Chief Budget Division

possesses high caliber

firearms such as a
mini UZI, Armalite rifle
and two (2) 45 cal.
pistol issued to him by
the
Assistant
Commissioner wherein
he is not an agent of
EIIB and authorized as
such
according
to
memorandum
order
number 283 signed by
the President of the
Republic
of
the
Philippines effective 9
Jan. 1990.
Another
observation
was when EIIB agents
apprehended a certain
civilian who possesses
numerous
assorted
high powered firearms.
Agents
plus
one
personnel from the
legal proclaimed only
five (5) firearms and
the
remaining
was
pilfered by them.
Another observation is
almost all EIIB agents
collects payroll from
the big time smuggler
syndicate monthly and
brokers every week for
them
not
to
be
apprehended.
Another observation is
the
commissioner
allocates funds coming
from the intelligence
funds to the media to
sustain
their
good
image of the bureau.
In
his
comment 1 on
the
letter-complaint,
petitioner Almonte denied that as a result of the
separation of personnel, the EIIB had made some
savings. He averred that the only funds released to
his agency by the Department of Budget and
Management (DBM) were those corresponding to
947 plantilla positions which were filled. He also
denied that there were "ghost agents" in the EIIB
and claimed that disbursements for "open" (i.e.,

110

"overt" personnel) and "closed" (i.e., "covert"

personnel) plantillas of the agency had been
cleared by the Commission on Audit (COA); that
the case of the 30 Uzis had already been
investigated by Congress, where it was shown that
it was not the EIIB but an agent who had spent for
the firearms and they were only loaned to the EIIB
pending appropriation by Congress; that, contrary
to the charge that a Maxima car had been
purchased for his use, he was using a government
issued car from the NICA; that it was his
prerogative as Commissioner to "ground" agents in
the EIIB main office so that they could be given
reorientation and retraining; that the allegation
that the EIIB operatives pilfered smuggled firearms
was without factual basis because the firearms
were the subject of seizure proceedings before the
Collector of Customs, Port of Manila; that the EIIB
had been uncompromising toward employees found
involved in anomalous activities; and that
intelligence funds had not been used for media
propaganda and if media people went to the EIIB it
was because of newsworthy stories. Petitioner
asked that the complaint be dismissed and the
case considered closed.
Similarly petitioner Perez, budget chief of the EIIB,
denied in his comment 2 dated April 3, 1990 that
savings had been realized from the implementation
of E.O. No. 127, since the DBM provided allocations
for only the remaining 947 personnel. He said that
the disbursement of funds for the plantilla positions
for "overt" and "covert" personnel had been
cleared by the COA and that the high-powered
firearms had been issued for the protection of EIIB
personnel attending court hearings and the Finance
Officer in withdrawing funds from the banks.
The
Graft
Investigation
Officer
of
the
Ombudsman's office, Jose F. Sao, found the
comments unsatisfactory, being "unverified and
plying only on generalizations without meeting
specifically the points raised by complainant as
constitutive of the alleged anomalies." 3 He,
therefore, asked for authority to conduct a
preliminary investigation. Anticipating the grant of
his request, he issued a subpoena 4 to petitioners
Almonte and Perez, requiring them to submit their
counter-affidavits and the affidavits of their
witnesses, as well as a subpoena duces tecum 5 to
the Chief of the EIIB's Accounting Division ordering
him to bring "all documents relating to Personal
Services Funds for the year 1988 and all evidence,
such as vouchers (salary) for the whole plantilla of
EIIB for 1988."

Petitioners Almonte and Perez moved to quash the

subpoena and the subpoena duces tecum. In his
Order
dated
June
15,
1990, 6 respondent
Ombudsman granted the motion to quash the
subpoena in view of the fact that there were no
affidavits filed against petitioners. But he denied
their motion to quash the subpoena duces tecum.
He ruled that petitioners were not being forced to
produce evidence against themselves, since the
subpoena duces tecum was directed to the Chief
Accountant, petitioner Nerio Rogado. In addition
the Ombudsman ordered the Chief of the Records a
Section of the EIIB, petitioner Elisa Rivera, to
produce before the investigator "all documents
relating to Personnel Service Funds, for the year
1988, and all documents, salary vouchers for the
whole plantilla of the EIIB for 1988, within ten (10)
days from receipt hereof."
Petitioners Almonte and Perez moved for a
reconsideration, arguing that Rogado and Rivera
were EIIB employees under their supervision and
that the Ombudsman was doing indirectly what he
could not do directly, i.e., compelling them
(petitioners Almonte and Perez) to produce
evidence against themselves.
Petitioners' motion was denied in respondent
Ombudsman's order dated August 6, 1990. Hence,
this petition which questions the orders of June 15,
1990 and August 6, 1990 of respondent
Ombudsman.
To put this case in perspective it should be stated
at the outset that it does not concern a demand by
a citizen for information under the freedom of
information guarantee of the Constitution. 7 Rather
it concerns the power of the Office of the
Ombudsman to obtain evidence in connection with
an investigation conducted by it vis-a-vis the claim
of privilege of an agency of the Government. Thus
petitioners raise the following issues: 8
I. WHETHER OR NOT A
CASE
BROUGHT
ABOUT
BY
AN
UNSIGNED
AND
UNVERIFIED
LETTER
COMPLAINT
IS
AN
"APPROPRIATE CASE"
WITHIN THE CONCEPT
OF
THE
CONSTITUTION
IN
WHICH
PUBLIC
RESPONDENT
CAN
OBLIGE PETITIONERS

111

BY VIRTUE OF HIS
SUBPOENA DUCES
TECUM TO PRODUCE
TO
HIM
"ALL
DOCUMENTS
RELATING
TO
PERSONAL SERVICES
FUNDS FOR THE YEAR
1988
AND
ALL
EVIDENCES, SUCH AS
VOUCHERS (SALARY)
FOR
THE
WHOLE
PLANTILLA OF EIIB
FOR 1988."
II. WHETHER OR NOT
"ALL
DOCUMENTS
RELATING
TO
PERSONAL SERVICES
FUNDS FOR THE YEAR
1988
AND
ALL
EVIDENCES, SUCH AS
VOUCHERS (SALARY)
FOR
THE
WHOLE
PLANTILLA OF EIIB
FOR
1988"
ARE
CLASSIFIED
AND,
THEREFORE, BEYOND
THE REACH OF PUBLIC
RESPONDENT'S
SUBPOENA DUCES
TECUM.
I.

A.
At common law a governmental privilege against
disclosure is recognized with respect to state
secrets bearing on military, diplomatic and similar
matters. This privilege is based upon public interest
of such paramount importance as in and of itself
transcending the individual interests of a private
citizen, even though, as a consequence thereof,
the plaintiff cannot enforce his legal rights. 10
In addition, in the litigation over the Watergate
tape subpoena in 1973, the U.S. Supreme Court
recognized the right of the President to the
confidentiality
of
his
conversations
and
correspondence, which it likened to "the claim of
confidentiality of judicial deliberations." Said the
Court in United States v. Nixon: 11
The expectation of a President to the
confidentiality of his conversations
and correspondence, 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 the
government and inextricably rooted
in the separation of powers under
the Constitution. . . .

There are several subsidiary issues raised by

petitioners, but the principal ones revolve on the
question whether petitioners can be ordered to
produce documents relating to personal services
and salary vouchers of EIIB employees on the plea
that such documents are classified. Disclosure of
the documents in question is resisted on the
ground that "knowledge of EIIB's documents
relative to its Personal Services Funds and its
plantilla . . . will necessarily [lead to] knowledge of
its operations, movements, targets, strategies, and
tactics and the whole of its being" and this could
"destroy the EIIB." 9

Thus, the Court for the first time gave executive

privilege a constitutional status and a new name,
although not necessarily a new birth. 12

Petitioners do not question the power of the

Ombudsman to issue a subpoena duces tecum nor
the relevancy or materiality of the documents
required to be produced, to the pending
investigation
in
the
Ombudsman's
office.
Accordingly, the focus of discussion should be on
the Government's claim of privilege.

"The confidentiality of judicial deliberations"

mentioned in the opinion of the Court referred to
the fact that Justices of the U.S. Supreme Court
and judges of lower federal courts have
traditionally treated their working papers and
judicial notes as private property. A 1977 proposal
in the U.S. Congress that Justices and judges of

112

lower federal courts "should be encouraged to

make such arrangements as will assure the
preservation and eventual availability of their
personal papers, especially the deposit of their
papers in the same depository they select for
[their] Public Papers" 13 was rebuffed by the
Justices who, in a letter to the Chairman of the
Subcommittee on Regulation and Government
Information of the U.S. Senate, referred to
"difficult concerns respecting the appropriate
separation that must be maintained between the
legislative branch and this Court." 14
There are, in addition to such privileges,
statutorily-created ones such as the Government's
privilege to withhold the identity of persons who
furnish information of violations of laws. 15
With respect to the privilege based on state secret,
the rule was stated by the U.S. Supreme Court as
follows:
Judicial control over the evidence in
a case cannot be abdicated to the
caprice of executive officers. Yet we
will not go so far as to say that the
court may automatically require a
complete disclosure to the judge
before the claim of privilege will be
accepted in any case. It may be
possible to satisfy the court, from all
the circumstances of the case, that
there is a reasonable danger that
compulsion of the evidence will
expose military matters which, in the
interest of national security, should
not be divulged. When this is the
case, the occasion for the privilege is
appropriate, and the court should
not jeopardize the security which the
privilege is meant to protect by
insisting upon an examination of the
evidence, even by the judge alone,
in chambers. . . . In each case, the
showing of necessity which is made
will determine how far the court
should probe in satisfying itself that
the occasion for invoking the
privilege is appropriate. Where there
is a strong showing of necessity, the
claim of privilege should not be
lightly accepted, but even the most
compelling
necessity
cannot
overcome the claim of privilege if the
court is ultimately satisfied that
military secrets are at stake.

A fortiori,
where
necessity
is
dubious, a formal claim of privilege,
made under the circumstances of
this case, will have to prevail.16
On the other hand, where the claim of
confidentiality does not rest on the need to protect
military, diplomatic or other national security
secrets but on a general public interest in the
confidentiality of his conversations, courts have
declined to find in the Constitution an absolute
privilege of the President against a subpoena
considered essential to the enforcement of criminal
laws. 17
B.
In the case at bar, there is no claim that military or
diplomatic secrets will be disclosed by the
production of records pertaining to the personnel of
the EIIB. Indeed, EIIB's function is the gathering
and evaluation of intelligence reports and
information regarding "illegal activities affecting
the national economy, such as, but not limited to,
economic sabotage, smuggling, tax evasion, dollar
salting." 18 Consequently, while in cases which
involve state secrets it may be sufficient to
determine from the circumstances of the case that
there is reasonable danger that compulsion of the
evidence will expose military matters without
compelling production, 19 no similar excuse can be
made
for
a
privilege
resting
on
other
considerations.
Nor has our attention been called to any law or
regulation which considers personnel records of the
EIIB as classified information. To the contrary, COA
Circular No. 88-293, which petitioners invoke to
support their contention that there is adequate
safeguard against misuse of public funds, provides
that the "only item of expenditure which should be
treated strictly confidential" is that which refers to
the "purchase of information and payment of
rewards." Thus, part V, No. 7 of the Circular reads:
The only item of expenditure which
should
be
treated
as
strictly
confidential because it falls under the
category of classified information is
that
relating
to
purchase
of
information and payment of rewards.
However, reasonable records should
be
maintained
and
kept
for
inspection
of
the
Chairman,
Commission on Audit or his duly
authorized representative. All other

113

expenditures are to be considered

unclassified supported by invoices,
receipts and other documents, and,
therefore, subject to reasonable
inquiry by the Chairman or his duly
authorized representative. 20
It should be noted that the regulation
requires that "reasonable records" be kept
justifying the confidential or privileged
character of the information relating to
informers. There are no such reasonable
records in this case to substitute for the
records claimed to be confidential.
The other statutes and regulations 21 invoked by
petitioners in support of their contention that the
documents sought in the subpoena duces tecum of
the Ombudsman are classified merely indicate the
confidential nature of the EIIB's functions, but they
do not exempt the EIIB from the duty to account
for its funds to the proper authorities. Indeed by
denying that there were savings made from certain
items in the agency and alleging that the DBM had
released to the EIIB only the allocations needed for
the 947 personnel retained after its reorganization,
petitioners in effect invited inquiry into the veracity
of their claim. If, as petitioners claim, the
subpoenaed records have been examined by the
COA and found by it to be regular in all respects,
there is no reason why they cannot be shown to
another agency of the government which by
constitutional mandate is required to look into any
complaint concerning public office.
On the other hand, the Ombudsman is
investigating a complaint that several items in the
EIIB were filled by fictitious persons and that the
allotments for these items in 1988 were used for
illegal purposes. The plantilla and other personnel
records are relevant to his investigation. He and
his Deputies are designated by the Constitution
"protectors of the people" and as such they are
required by it "to act promptly on complaints in
any form or manner against public officials or
employees of the Government, or any subdivision,
agency or instrumentality thereof, including
government-owned or controlled corporation." 22
His need for the documents thus outweighs the
claim of confidentiality of petitioners. What is
more, while there might have been compelling
reasons for the claim of privilege in 1988 when it
was asserted by petitioners, now, seven years
later, these reasons may have been attenuated, if
they have not in fact ceased. The agents whose

identities could not then be revealed may have

ceased from the service of the EIIB, while the
covert missions to which they might have been
deployed might either have been accomplished or
abandoned. On the other hand, the Ombudsman's
duty to investigate the complaint that there were in
1988 unfilled positions in the EIIB for which
continued funding was received by its officials and
put to illegal use, remains.
Above all, even if the subpoenaed documents are
treated as presumptively privileged, this decision
would only justify ordering their inspection in
camera but not their nonproduction. However, as
concession to the nature of the functions of the
EIIB and just to be sure no information of a
confidential character is disclosed, the examination
of records in this case should be made in strict
confidence by the Ombudsman himself. Reference
may be made to the documents in any decision or
order which the Ombudsman may render or issue
but only to the extent that it will not reveal covert
activities of the agency. Above all, there must be a
scrupulous protection of the documents delivered.
With these safeguards outlined, it is believed that a
satisfactory resolution of the conflicting claims of
the parties is achieved. It is not amiss to state that
even matters of national security have been
inquired into in appropriate in camera proceedings
by the courts. In Lansang v. Garcia 23 this Court
held closed door sessions, with only the immediate
parties and their counsel present, to determine
claims that because of subversion there was
imminent danger to public safety warranting the
suspension of the writ of habeas corpus in 1971.
Again in Marcos v. Manglapus 24 the Court met
behind closed doors to receive military briefings on
the threat posed to national security by the return
to the country of the former President and his
family. In the United States, a similar inquiry into
the danger to national security as a result of the
publication of classified documents on the Vietnam
war was upheld by the U.S. Supreme Court. 25 We
see no reason why similar safeguards cannot be
made to enable an agency of the Government, like
the Office of the Ombudsman, to carry out its
constitutional
duty
to
protect
public
interests 26 while insuring the confidentiality of
classified documents.
C.
Petitioners contend that under Art. XI, 13(4) the
Ombudsman can act only "in any appropriate case,
and subject to such limitations as may be provided

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by law" and that because the complaint in this case

is unsigned and unverified, the case is not an
appropriate one. This contention lacks merit. As
already stated, the Constitution expressly enjoins
the Ombudsman to act on any complaint filed "in
any form or manner" concerning official acts or
omissions. Thus, Art. XI, 12 provides:
The Ombudsman and his Deputies,
as protectors of the people, shall act
promptly on complaints filed in any
form
or
manner against
public
officials
or
employees
of
the
Government, or any subdivision,
agency, or instrumentality thereof,
including
government-owned
or
controlled corporations and shall
in appropriate cases, notify the
complainants of the action taken and
the result thereof. (Emphasis added)
Similarly, the Ombudsman Act of 1989
(Rep. Act No. 6770) provides in 26(2):
The Office of the Ombudsman shall
receive complaints from any source
in whatever form concerning an
official act or omission. It shall act
on the complaint immediately and if
it finds the same entirely baseless, it
shall dismiss the same and inform
the complainant of such dismissal
citing the reasons therefor. If it finds
a reasonable ground to investigate
further, it shall first furnish the
respondent
public
officer
or
employee with a summary of the
complaint and require him to submit
a written answer within seventy-two
hours from receipt thereof. If the
answer is found satisfactory, it shall
dismiss the case. (Emphasis added)
Accordingly, in Diaz v. Sandiganbayan 27 the Court
held that testimony given at a fact-finding
investigation and charges made in a pleading in a
case in court constituted a sufficient basis for the
Ombudsman to commence investigation, because a
formal complaint was really not necessary.
Rather than referring to the form of complaints,
therefore, the phrase "in an appropriate case" in
Art. XI, 12 means any case concerning official act
or omission which is alleged to be "illegal, unjust,
improper, or inefficient."28 The phrase "subject to
such limitations as may be provided by law" refers

to such limitations as may be provided by Congress

or, in the absence thereof, to such limitations as
may be imposed by the courts. Such limitations
may well include a requirement that the
investigation be concluded in camera, with the
public excluded, as exception to the general nature
of the proceedings in the Office of the
Ombudsman. 29 A reconciliation is thereby made
between the demands of national security and the
requirement of accountability enshrined in the
Constitution. 30
What has been said above disposes of petitioners'
contention that the anonymous letter-complaint
against them is nothing but a vexatious
prosecution. It only remains to say that the general
investigation in the Ombudsman' s office is
precisely for the purpose of protecting those
against whom a complaint is filed against hasty,
malicious, and oppressive prosecution as much as
securing the State from useless and expensive
trials. There may also be benefit resulting from
such limited in camera inspection in terms of
increased public confidence that the privilege is not
being abused and increased likelihood that no
abuse is in fact occurring.
II.
Nor is there violation of petitioner's right to the
equal protection of the laws. Petitioners complain
that "in all forum and tribunals . . . the aggrieved
parties . . . can only hale respondents via their
verified complaints or sworn statements with their
identities fully disclosed," while in proceedings
before the Office of the Ombudsman anonymous
letters suffice to start an investigation. In the first
place, there can be no objection to this procedure
because it is provided in the Constitution itself. In
the second place, it is apparent that in permitting
the filing of complaints "in any form and in a
manner," the framers of the Constitution took into
account the well-known reticence of the people
which keep them from complaining against official
wrongdoings. As this Court had occasion to point
out, the Office of the Ombudsman is different from
the other investigatory and prosecutory agencies of
the government because those subject to its
jurisdiction are public officials who, through official
pressure and influence, can quash, delay or dismiss
investigations held against them. 31 On the other
hand complainants are more often than not poor
and simple folk who cannot afford to hire
lawyers. 32
III.

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Finally, it is contended that the issuance of the

subpoena duces tecum would violate petitioners'
right against self-incrimination. It is enough to
state that the documents required to be produced
in this case are public records and those to whom
the
subpoena duces
tecum is
directed
are
government officials in whose possession or
custody the documents are. Moreover, if, as
petitioners claim the disbursement by the EIIB of
funds for personal service has already been cleared
by the COA, there is no reason why they should
object to the examination of the documents by
respondent Ombudsman.
WHEREFORE, the petition is DISMISSED, but it is
directed that the inspection of subpoenaed
documents be made personally in camera by the
Ombudsman, and with all the safeguards outlined
in this decision.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide,
Jr., Romero, Bellosillo, Melo, Quiason, Puno and
Vitug, JJ., concur.
Francisco, J., is on leave.

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