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Constitutional Law

Equal Protection of the law


(1) THE PEOPLE OF THE PHILIPPINES,
pla
intiff and appellee, vs.
CAYAT, defendant and appellant.
M
ORAN, J.:
Prosecuted for violation of Act No. 1639 (secs. 2
and 3), the accused, Cayat, a native of Baguio,
Benguet, Mountain Province, was sentenced by
the justice of the peace court of Baguio to pay a
fine of five pesos (P5) or suffer subsidiary
imprisonment in case of insolvency. On appeal
of the Court of First Instance, the following
information was filed against him:
That on or about the 25th day of January, 1937,
in the City of Baguio, Commonwealth of the
Philippines, and within the jurisdiction of this
court, the above-named accused, Cayat, being a
member of the non-Christian tribes, did then and
there willfully, unlawfully, and illegally receive,
acquire, and have in his possession and under his
control or custody, one bottle of A-1-1 gin, an
intoxicating liquor, other than the so-called
native wines and liquors which the members of
such tribes have been accustomed themselves to
make prior to the passage of Act No. 1639.
Accused interposed a demurrer which was
overruled. At the trial, he admitted all the facts
alleged in the information, but pleaded not guilty
to the charge for the reasons adduced in his
demurrer and submitted the case on the
pleadings. The trial court found him guilty of the
crime charged and sentenced him to pay a fine of
fifty pesos (P50) or supper subsidiary
imprisonment in case of insolvency. The case is
now before this court on appeal. Sections 2 and 3
of Act No. 1639 read:
SEC. 2. It shall be unlawful for any native of the
Philippine Islands who is a member of a nonChristian tribe within the meaning of the Act
Numbered Thirteen hundred and ninety-seven, to
buy, receive, have in his possession, or drink any
ardent spirits, ale, beer, wine, or intoxicating
liquors of any kind, other than the so-called

native wines and liquors which the members of


such tribes have been accustomed themselves to
make prior to the passage of this Act, except as
provided in section one hereof; and it shall be the
duty of any police officer or other duly
authorized agent of the Insular or any provincial,
municipal or township government to seize and
forthwith destroy any such liquors found
unlawfully in the possession of any member of a
non-Christian tribe.
SEC. 3. Any person violating the provisions of
section one or section two of this Act shall, upon
conviction thereof, be punishable for each
offense by a fine of not exceeding two hundred
pesos or by imprisonment for a term not
exceeding six months, in the discretion of the
court.
The accused challenges the constitutionality of
the Act on the following grounds:
(1) That it is discriminatory and denies the equal
protection of the laws;
(2) That it is violative of the due process clause
of the Constitution: and.
(3) That it is improper exercise of the police
power of the state.
Counsel for the appellant holds out his brief as
the "brief for the non-Christian tribes." It is said
that as these less civilized elements of the
Filipino population are "jealous of their rights in
a democracy," any attempt to treat them with
discrimination or "mark them as inferior or less
capable rate or less entitled" will meet with their
instant challenge. As the constitutionality of the
Act here involved is questioned for purposes thus
mentioned, it becomes imperative to examine
and resolve the issues raised in the light of the
policy of the government towards the nonChristian tribes adopted and consistently
followed from the Spanish times to the present,
more often with sacrifice and tribulation but
always with conscience and humanity.
As early as 1551, the Spanish Government had
assumed an unvarying solicitous attitude toward
these inhabitants, and in the different laws of the
Indies, their concentration in so-called
"reducciones"
(communities)
have
been
persistently attempted with the end in view of

according them the "spiritual and temporal


benefits" of civilized life. Throughout the
Spanish regime, it had been regarded by the
Spanish Government as a sacred "duty to
conscience and humanity" to civilize these less
fortunate people living "in the obscurity of
ignorance" and to accord them the "the moral
and material advantages" of community life and
the "protection and vigilance afforded them by
the same laws." (Decree of the Governor-General
of the Philippines, Jan. 14, 1887.) This policy
had not been deflected from during the American
period. President McKinley in his instructions to
the Philippine Commission of April 7, 1900,
said:
In dealing with the uncivilized tribes of the
Islands, the Commission should adopt the same
course followed by Congress in permitting the
tribes of our North American Indians to maintain
their tribal organization and government, and
under which many of those tribes are now living
in peace and contentment, surrounded by
civilization to which they are unable or unwilling
to conform. Such tribal government should,
however, be subjected to wise and firm
regulation; and, without undue or petty
interference, constant and active effort should be
exercised to prevent barbarous practices and
introduce civilized customs.
Since then and up to the present, the government
has been constantly vexed with the problem of
determining "those practicable means of bringing
about their advancement in civilization and
material prosperity." (See, Act No. 253.) "Placed
in an alternative of either letting them alone or
guiding them in the path of civilization," the
present government "has chosen to adopt the
latter measure as one more in accord with
humanity and with the national conscience."
(Memorandum of Secretary of the Interior,
quoted in Rubi vs. Provincial Board of Mindoro,
39 Phil., 660, 714.) To this end, their homes and
firesides have been brought in contact with
civilized communities through a network of
highways and communications; the benefits of
public education have to them been extended;
and more lately, even the right of suffrage. And

to complement this policy of attraction and


assimilation, the Legislature has passed Act No.
1639 undoubtedly to secure for them the
blessings of peace and harmony; to facilitate, and
not to mar, their rapid and steady march to
civilization and culture. It is, therefore, in this
light that the Act must be understood and
applied.
It is an established principle of constitutional law
that the guaranty of the equal protection of the
laws is not equal protection of the laws is not
violated by a legislation based on reasonable
classification. And the classification, to be
reasonable, (1) must rest on substantial
distinctions; (2) must be germane to the purposes
of the law; (3) must not be limited to existing
conditions only; and (4) must apply equally to all
members of the same class. (Borgnis vs. Falk
Co., 133 N.W., 209; Lindsley vs. Natural
Carbonic Gas Co., 220 U.S. 61; 55 Law. ed.,
Rubi vs. Provincial Board of Mindoro, 39 Phil.,
660; People and Hongkong & Shanghai Banking
Corporation vs. Vera and Cu Unjieng, 37 Off.
Gaz ., 187.)
Act No. 1639 satisfies these requirements. The
classification rests on real and substantial, not
merely imaginary or whimsical, distinctions. It is
not based upon "accident of birth or parentage,"
as counsel to the appellant asserts, but upon the
degree of civilization and culture. "The term
'non-Christian tribes' refers, not to religious
belief, but, in a way, to the geographical area,
and, more directly, to natives of the Philippine
Islands of a low grade of civilization, usually
living in tribal relationship apart from settled
communities." (Rubi vs. Provincial Board of
Mindoro,
supra.)
This
distinction
is
unquestionably reasonable, for the Act was
intended to meet the peculiar conditions existing
in the non-Christian tribes. The exceptional cases
of certain members thereof who at present have
reached a position of cultural equality with their
Christian
brothers,
cannot
affect
the
reasonableness of the classification thus
established.
That it is germane to the purposes of law cannot
be doubted. The prohibition "to buy, receive,

have in his possession, or drink any ardent


spirits, ale, beer, wine, or intoxicating liquors of
any kind, other than the so-called native wines
and liquors which the members of such tribes
have been accustomed themselves to make prior
to the passage of this Act.," is unquestionably
designed to insure peace and order in and among
the non-Christian tribes. It has been the sad
experience of the past, as the observations of the
lower court disclose, that the free use of highly
intoxicating liquors by the non-Christian tribes
have often resulted in lawlessness and crimes,
thereby hampering the efforts of the government
to raise their standard of life and civilization.
The law is not limited in its application to
conditions existing at the time of its enactment. It
is intended to apply for all times as long as those
conditions exist. The Act was not predicated, as
counsel for appellant asserts, upon the
assumption that the non-Christians are
"impermeable to any civilizing influence." On
the contrary, the Legislature understood that the
civilization of a people is a slow process and that
hand in hand with it must go measures of
protection and security.
Finally, that the Act applies equally to all
members of the class is evident from a perusal
thereof. That it may be unfair in its operation
against a certain number non-Christians by
reason of their degree of culture, is not an
argument against the equality of its application.
Appellants contends that that provision of the
law empowering any police officer or other duly
authorized agent of the government to seize and
forthwith destroy any prohibited liquors found
unlawfully in the possession of any member of
the non-Christian tribes is violative of the due
process of law provided in the Constitution. But
this provision is not involved in the case at bar.
Besides, to constitute due process of law, notice
and hearing are not always necessary. This rule is
especially true where much must be left to the
discretion of the administrative officials in
applying a law to particular cases. (McGehee,
Due Process of Law p. 371, cited with approval
in Rubi vs. Provincial Board of Mindoro, supra.)
Due process of law means simply: (1) that there

shall be a law prescribed in harmony with the


general powers of the legislative department of
the government; (2) that it shall be reasonable in
its operation; (3) that it shall be enforced
according to the regular methods of procedure
prescribed; and (4) that it shall be applicable
alike to all citizens of the state or to all of the
class. (U.S. vs. Ling Su Fan, 10 Phil., 104,
affirmed on appeal by the United States Supreme
Court, 218 U.S., 302: 54 Law. ed., 1049.) Thus, a
person's property may be seized by the
government in payment of taxes without judicial
hearing; or property used in violation of law may
be confiscated (U.S. vs. Surla, 20 Phil., 163,
167), or when the property constitutes corpus
delicti, as in the instant case (Moreno vs. Ago
Chi, 12 Phil., 439, 442).
Neither is the Act an improper exercise of the
police power of the state. It has been said that the
police power is the most insistent and least
limitable of all powers of the government. It has
been aptly described as a power co-extensive
with self-protection and constitutes the law of
overruling necessity. Any measure intended to
promote the health, peace, morals, education and
good order of the people or to increase the
industries of the state, develop its resources and
add to its wealth and prosperity (Barbier vs.
Connolly, 113 U.S., 27), is a legitimate exercise
of the police power, unless shown to be
whimsical or capricious as to unduly interfere
with the rights of an individual, the same must be
upheld.
Act No. 1639, as above stated, is designed to
promote peace and order in the non-Christian
tribes so as to remove all obstacles to their moral
and intellectual growth and, eventually, to hasten
their equalization and unification with the rest of
their Christian brothers. Its ultimate purpose can
be no other than to unify the Filipino people with
a view to a greater Philippines.
The law, then, does not seek to mark the nonChristian tribes as "an inferior or less capable
race." On the contrary, all measures thus far
adopted in the promotion of the public policy
towards them rest upon a recognition of their
inherent right to equality in tht enjoyment of

those privileges now enjoyed by their Christian


brothers. But as there can be no true equality
before the law, if there is, in fact, no equality in
education, the government has endeavored, by
appropriate measures, to raise their culture and
civilization and secure for them the benefits of
their progress, with the ultimate end in view of
placing them with their Christian brothers on the
basis of true equality. It is indeed gratifying that
the non-Christian tribes "far from retrograding,
are definitely asserting themselves in a
competitive world," as appellant's attorney
impressively avers, and that they are "a virile,
up-and -coming people eager to take their place
in the world's social scheme." As a matter of fact,
there are now lawyers, doctors and other
professionals educated in the best institutions
here and in America. Their active participation in
the multifarious welfare activities of community
life or in the delicate duties of government is
certainly a source of pride and gratification to
people of the Philippines. But whether
conditions have so changed as to warrant a
partial or complete abrogation of the law, is a
matter which rests exclusively within the
prerogative of the National Assembly to
determine. In the constitutional scheme of our
government, this court can go no farther than to
inquire whether the Legislature had the power to
enact the law. If the power exists, and we hold it
does exist, the wisdom of the policy adopted, and
the adequacy under existing conditions of the
measures enacted to forward it, are matters
which this court has no authority to pass upon.
And, if in the application of the law, the educated
non-Christians shall incidentally suffer, the
justification still exists in the all-comprehending
principle of salus populi suprema est lex. When
the public safety or the public morals require the
discontinuance of a certain practice by certain
class of persons, the hand of the Legislature
cannot be stayed from providing for its
discontinuance by any incidental inconvenience
which some members of the class may suffer.
The private interests of such members must yield
to the paramount interests of the nation (Cf.

Boston Beer Co. vs. Mass., 97 U.S., 25; 24 law.


ed., 989).
Judgment is affirmed, with costs against
appellant.
(2) 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.
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 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 basedAnswer 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 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
self-protection 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.
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 illbred 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
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.
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.
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:

As
Year and Retailers
No.-Establishments
Nationality

Pe

1941:
Filipino ..... 106,671
.....

20

Chinese ..... 15,356


......

11

Others ....... 1,646


.....

40

Filipino ..... 111,107


.....

20

Chinese ..... 13,774


......

10

Others ....... 354


....

8,7

1947:

1948:

(Census)
Filipino ..... 113,631
.....

21

Chinese ..... 12,087


.....

93

Others ....... 422


...

10

Filipino ..... 113,659


.....

21

Chinese ..... 16,248


.....

12

Others ....... 486


...

12

Filipino ..... 119,352

22

1949:

1951:

categorically declaring among other things, that


"it is the sense of the Convention that the public
Chinese ..... 17,429
interest requires the nationalization of the retail
Filipino .............................................
.....
trade; . . . ." (II Aruego, The Framing of the
Philippine Constitution, 662-663, quoted on page
Others ....... 347
Chinese .............................................
67 of Petitioner.) That was twenty-two years ago;
...
and the events since then have not been either
Others ...............................................
pleasant or comforting. Dean Sinco of the
AVERAGE
(Estimated Assets and Gross Sales of Retail University of the Philippines College of Law,
ASSETS AND GROSS SALES PER ESTABLISHMENT
Establishments, By Year and Nationality of commenting on the patrimony clause of the
Owners, Benchmark: 1948 Census, issued by the Preamble opines that the fathers of our
Bureau of Census and Statistics, Department of Constitution were merely translating the general
Year
and
Retailer's
preoccupation of Filipinos "of the dangers from
Commerce and Industry; pp. 18-19 of Answer.)
Nationality
The above statistics do not include corporations alien interests that had already brought under
and partnerships, while the figures on Filipino their control the commercial and other economic
1941:
establishments already include mere market activities of the country" (Sinco, Phil. Political
Law, 10th ed., p. 114); and analyzing the concern
vendors, whose capital is necessarily small..
Filipino .............................................
The above figures reveal that in percentage of the members of the constitutional convention
distribution of assests and gross sales, alien for the economic life of the citizens, in
Chinese ..............................................
participation has steadily increased during the connection with the nationalistic provisions of
years. It is true, of course, that Filipinos have the the Constitution, he says:
Others ...............................................
edge in the number of retailers, but aliens more But there has been a general feeling that alien
than make up for the numerical gap through their dominance over the economic life of the country
1947:
assests and gross sales which average between is not desirable and that if such a situation should
six and seven times those of the very many remain, political independence alone is no
Filipino .............................................
Filipino retailers. Numbers in retailers, here, do guarantee to national stability and strength.
not imply superiority; the alien invests more Filipino private capital is not big enough to wrest
Chinese ...........................................
capital, buys and sells six to seven times more, from alien hands the control of the national
and gains much more. The same official report, economy. Moreover, it is but of recent formation
Others ..............................................
pointing out to the known predominance of and hence, largely inexperienced, timid and
foreign elements in the retail trade, remarks that hesitant. Under such conditions, the government
1948:
(Census)
the Filipino retailers were largely engaged in as the instrumentality of the national will, has to
minor retailer enterprises. As observed by step in and assume the initiative, if not the
Filipino .............................................
respondents, the native investment is thinly leadership, in the struggle for the economic
spread, and the Filipino retailer is practically freedom of the nation in somewhat the same way
Chinese .............................................
helpless in matters of capital, credit, price and that it did in the crusade for political freedom.
Thus . . . it (the Constitution) envisages an
supply.
Others ..............................................
d. Alien control and threat, subject of organized movement for the protection of the
nation not only against the possibilities of armed
apprehension in Constitutional convention.
1949:
It is this domination and control, which we invasion but also against its economic
believe has been sufficiently shown to exist, that subjugation by alien interests in the economic
Filipino .............................................
is the legislature's target in the enactment of the field. (Phil. Political Law by Sinco, 10th ed., p.
disputed nationalization would never have been 476.)
Chinese ..............................................
adopted. The framers of our Constitution also Belief in the existence of alien control and
believed in the existence of this alien dominance predominance is felt in other quarters. Filipino
Others ..............................................
and control when they approved a resolution businessmen, manufacturers and producers
believe so; they fear the dangers coming from
....

1951:

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.
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 illadvised 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
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 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 foreign-born
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 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 must not be unduly
oppressive. (11 Am. Jur. Sec. 302., 1:1)- 10741075.)
In the case of Lawton vs. Steele, 38 L. ed. 385,
388. it was also held:

. . . . 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 nation's
economy endangering the national security in
times of crisis and emergency.

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.
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.

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 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 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.)
X. Conclusion
Resuming what we have set forth above we hold
that the disputed law was enacted to remedy a
real 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.
(3)MAYOR ANTONIO J. VILLEGAS,
petition
er, vs. HIU CHIONG TSAI PAO
HO and J
JUDGE FRANCISCO ARCA,
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.
(SGD.) FRANCISCO ARCA
Judge 1
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 technical
assistance programs of both the Philippine
Government and any foreign government, and
those working in their respective households, and
members of religious orders or congregations,
sect or denomination, who are not paid
monetarily or in kind.
Violations of this ordinance is punishable by an
imprisonment of not less than three (3) months to
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

10

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
writ of preliminary injunction and on September
17, 1968 rendered judgment declaring Ordinance
No. 6537 null and void and making permanent
the writ of preliminary injunction. 8
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 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.
(4) Dumlao vs COMELEC
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.

11

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 preliminary investigation shall be prima
fascie evidence of such fact.

... (Batas Pambansa Big. 52) (Paragraphing and nature of a taxpayer's suit. Although petitioners
Emphasis supplied).
plead nine constraints as the reason of their joint
Petition, it would have required only a modicum
Section 1. Election of certain Local Officials more of effort tor petitioner Dumlao, on one
... The election shall be held on January 30, hand said petitioners lgot and Salapantan, on the
1980. (Batas Pambansa, Blg. 52)
other, to have filed separate suits, in the interest
of orderly procedure.
Section 6. Election and Campaign Period The
election period shall be fixed by the Commission For another, there are standards that have to be
on Elections in accordance with Section 6, Art. followed inthe exercise of the function of
XII-C of the Constitution. The period of judicial review, namely (1) the existence of an
campaign shall commence on December 29, appropriate case:, (2) an interest personal and
1979 and terminate on January 28, 1980. (ibid.)
substantial by the party raising the constitutional
question: (3) the plea that the function be
In addition to the above-cited provisions, exercised at the earliest opportunity and (4) the
petitioners Igot and Salapantan, Jr. also question necessity that the constiutional question be
the accreditation of some political parties by passed upon in order to decide the case (People
respondent COMELEC, as authorized by Batas vs. Vera 65 Phil. 56 [1937]).
Pambansa Blg. 53, on the ground that it is
contrary to section 9(1)Art. XIIC of the It may be conceded that the third requisite has
Constitution, which provides that a "bona fide been complied with, which is, that the parties
candidate for any public office shall be it. from have raised the issue of constitutionality early
any form of harassment and discrimination. "The enough in their pleadings.
question of accreditation will not be taken up in
this case but in that of Bacalso, et als. vs. This Petition, however, has fallen far short of the
COMELEC et als. No. L-52232) where the issue other three criteria.
has been squarely raised,
A. Actual case and controversy.
Petitioners then pray that the statutory provisions
they have challenged be declared null and void It is basic that the power of judicial review is
for being violative of the Constitution.
limited to the determination of actual cases and
controversies.
I . The procedural Aspect
Petitioner Dumlao assails the constitutionality of
At the outset, it should be stated that this Petition the first paragraph of section 4 of Batas
suffers from basic procedural infirmities, hence, Pambansa Blg. 52, quoted earlier, as being
traditionally unacceptable for judicial resolution. contrary to the equal protection clause
For one, there is a misjoinder of parties and guaranteed by the Constitution, and seeks to
actions. Petitioner Dumlao's interest is alien to prohibit
respondent
COMELEC
from
that of petitioners Igot and Salapantan Petitioner implementing said provision. Yet, Dumlao has
Dumlao does not join petitioners Igot and not been adversely affected by the application of
Salapantan in the burden of their complaint, nor that provision. No petition seeking Dumlao's
do the latter join Dumlao in his. The respectively disqualification has been filed before the
contest completely different statutory provisions. COMELEC. There is no ruling of that
Petitioner Dumlao has joined this suit in his constitutional body on the matter, which this
individual capacity as a candidate. The action of Court is being asked to review on Certiorari. His
petitioners Igot and Salapantan is more in the 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:
"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

12

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:

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]), speaking through our present Chief
Justice, this Court is vested with discretion as to
whether or not a taxpayer's suit should be
entertained.

... 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 C. Unavoidability of constitutional question.
a misapplication of such funds," which may be
enjoined at the request of a taxpayer.
Again upon the authority of People vs. Vera, "it
is a wellsettled rule that the constitutionality of
In the same vein, it has been held:
an act of the legislature will not be determined
by the courts unless that question is properly
In the determination of the degree of interest raised and presented in appropriate cases and is
essential to give the requisite standing to attack necessary to a determination of the case; i.e., the
the constitutionality of a statute, the general rule issue of constitutionality must be the very lis
is that not only persons individually affected, but mota presented."
also taxpayers have sufficient interest in
preventing the illegal expenditure of moneys We have already stated that, by the standards set
raised by taxation and they may, therefore, forth in People vs. Vera, the present is not an
question the constitutionality of statutes "appropriate case" for either petitioner Dumlao
requiring expenditure of public moneys. or for petitioners Igot and Salapantan. They are
(Philippine Constitution Association, Inc., et als., actually without cause of action. It follows that
vs. Gimenez, et als., 15 SCRA 479 [1965]).
the necessity for resolving the issue of
constitutionality is absent, and procedural
However, the statutory provisions questioned in regularity would require that this suit be
this case, namely, sec. 7, BP Blg. 51, and dismissed.
sections 4, 1, and 6 BP Blg. 52, do not directly
involve the disbursement of public funds. While, II. The substantive viewpoint.
concededly, the elections to be held involve the
expenditure of public moneys, nowhere in their We have resolved, however, to rule squarely on
Petition do said petitioners allege that their tax 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.

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.

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 In fine, it bears reiteration that the equal
compulsory retirement, while those of younger protection clause does not forbid all legal
ages are not so compulsorily retirable.
classification. What is proscribes is a
classification
which
is
arbitrary
and
In respect of election to provincial, city, or unreasonable. That constitutional guarantee is
municipal positions, to require that candidates not violated by a reasonable classification based
should not be more than 65 years of age at the upon substantial distinctions, where the
time they assume office, if applicable to classification is germane to the purpose of the
everyone, might or might not be a reasonable law and applies to all Chose belonging to the
classification although, as the Solicitor General same class (Peralta vs. Comelec, 82 SCRA 30
has intimated, a good policy of the law would be [1978] citing Felwa vs. Salas, 18 SCRA 606
to promote the emergence of younger blood in [1966]; Rafael v. Embroidery and Apparel
our political elective echelons. On the other Control and Inspection Board, 21 SCRA 336
[1967]; Inchong etc., et al. vs. Hernandez 101

13

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 should not be allowed to be substituted for a Ormoc City and ORMOC CITY, defendantsis one such clear case.
judicial determination.
appellees.
Ponce Enrile, Siguion Reyna, Montecillo & Belo
Explicit is the constitutional provision that, in all Being infected with constitutional infirmity, a and Teehankee, Carreon & Taada for plaintiffcriminal prosecutions, the accused shall be partial declaration of nullity of only that appellant.
presumed innocent until the contrary is proved, objectionable portion is mandated. It is separable Ramon O. de Veyra for defendants-appellees.
and shall enjoy the right to be heard by himself from the first portion of the second paragraph of BENGZON, J.P., J.:
and counsel (Article IV, section 19, 1973 section 4 of Batas Pambansa Big. 52 which can
On January 29, 1964, the Municipal Board
Constitution). An accusation, according to the stand by itself.
of Ormoc City passed 1 Ordinance No. 4, Series
fundamental law, is not synonymous with guilt.
of 1964, imposing "on any and all productions of
The challenged proviso contravenes the
centrifugal sugar milled at the Ormoc Sugar
constitutional presumption of innocence, as a WHEREFORE, 1) the first paragraph of section Company, Inc., in Ormoc City a municipal tax
candidate is disqualified from running for public 4 of Batas pambansa Bilang 52 is hereby equivalent to one per centum (1%) per export
office on the ground alone that charges have declared valid. Said paragraph reads:
sale to the United States of America and other
been filed against him before a civil or military
foreign countries." 2
tribunal. It condemns before one is fully heard. SEC. 4. Special disqualification. In addition
Payments for said tax were made, under
In ultimate effect, except as to the degree of to violation of Section 10 of Article XII(C) of the protest, by Ormoc Sugar Company, Inc. on
proof, no distinction is made between a person Constitution and disqualifications mentioned in March 20, 1964 for P7,087.50 and on April 20,
convicted of acts of dislotalty and one against existing laws which are hereby declared as 1964 for P5,000, or a total of P12,087.50.
whom charges have been filed for such acts, as disqualification for any of the elective officials
On June 1, 1964, Ormoc Sugar Company,
both of them would be ineligible to run for enumerated in Section 1 hereof, any retired Inc. filed before the Court of First Instance of
public office. A person disqualified to run for elective provincial, city or municipal official, Leyte, with service of a copy upon the Solicitor
public office on the ground that charges have who has received payment of the retirement General, a complaint 3 against the City of Ormoc
been filed against him is virtually placed in the benefits to which he is entitled under the law and as well as its Treasurer, Municipal Board and
same category as a person already convicted of a who shall have been 65 years of age at the Mayor, alleging that the afore-stated ordinance is
crime with the penalty of arresto, which carries commencement of the term of office to which he unconstitutional for being violative of the equal
with it the accessory penalty of suspension of the seeks to be elected, shall not be qualified to run protection clause (Sec. 1[1], Art. III,
right to hold office during the term of the for the same elective local office from which he Constitution) and the rule of uniformity of
sentence (Art. 44, Revised Penal Code).
has retired.
taxation (Sec. 22[1]), Art. VI, Constitution),
aside from being an export tax forbidden under
And although the filing of charges is considered 2) That portion of the second paragraph of Section 2287 of the Revised Administrative
as but prima facie evidence, and therefore, may section 4 of Batas Pambansa Bilang 52 providing Code. It further alleged that the tax is neither a
be rebutted, yet. there is "clear and present that "... the filing of charges for the commission production nor a license tax which Ormoc City
danger" that because of the proximity of the of such crimes before a civil court or military under Section 15-kk of its charter and under
elections, time constraints will prevent one tribunal after preliminary investigation shall be Section 2 of Republic Act 2264, otherwise
charged with acts of disloyalty from offering prima facie evidence of such fact", is hereby known as the Local Autonomy Act, is authorized
contrary proof to overcome the prima facie declared null and void, for being violative of the to impose; and that the tax amounts to a customs
evidence against him.
constitutional presumption of innocence duty, fee or charge in violation of paragraph 1 of
guaranteed to an accused.
Section 2 of Republic Act 2264 because the tax
Additionally, it is best that evidence pro and con
is on both the sale and export of sugar.
of acts of disloyalty be aired before the Courts SO ORDERED.
Answering, the defendants asserted that
rather than before an administrative body such as (5) ORMOC SUGAR COMPANY, INC., the tax ordinance was within defendant city's
the COMELEC. A highly possible conflict of plaintiff-appellant,
power to enact under the Local Autonomy Act
findings between two government bodies, to the vs.
and that the same did not violate the afore-cited
extreme detriment of a person charged, will THE TREASURER OF ORMOC CITY, THE constitutional limitations. After pre-trial and
thereby
be
avoided.
Furthermore,
a MUNICIPAL BOARD OF ORMOC CITY, submission of the case on memoranda, the Court
legislative/administrative determination of guilt HON. ESTEBAN C. CONEJOS as Mayor of of First Instance, on August 6, 1964, rendered a

14

decision that upheld the constitutionality of the


ordinance and declared the taxing power of
defendant chartered city broadened by the Local
Autonomy Act to include all other forms of
taxes, licenses or fees not excluded in its charter.
Appeal therefrom was directly taken to Us
by plaintiff Ormoc Sugar Company, Inc.
Appellant alleges the same statutory and
constitutional violations in the aforesaid taxing
ordinance mentioned earlier.
Section 1 of the ordinance states: "There
shall be paid to the City Treasurer on any and all
productions of centrifugal sugar milled at the
Ormoc Sugar Company, Incorporated, in Ormoc
City, a municipal tax equivalent to one per
centum (1%) per export sale to the United States
of America and other foreign countries." Though
referred to as a tax on the export of centrifugal
sugar produced at Ormoc Sugar Company, Inc.
For production of sugar alone is not taxable; the
only time the tax applies is when the sugar
produced is exported.
Appellant questions the authority of the
defendant Municipal Board to levy such an
export tax, in view of Section 2287 of the
Revised Administrative Code which denies from
municipal councils the power to impose an
export tax. Section 2287 in part states: "It shall
not be in the power of the municipal council to
impose a tax in any form whatever, upon goods
and merchandise carried into the municipality, or
out of the same, and any attempt to impose an
import or export tax upon such goods in the
guise of an unreasonable charge for wharfage use
of bridges or otherwise, shall be void."
Subsequently, however, Section 2 of
Republic Act 2264 effective June 19, 1959, gave
chartered cities, municipalities and municipal
districts authority to levy for public purposes just
and uniform taxes, licenses or fees. Anent the
inconsistency between Section 2287 of the
Revised Administrative Code and Section 2 of
Republic Act 2264, this Court, in Nin Bay
Mining Co. v. Municipality of Roxas 4 held the
former to have been repealed by the latter. And
expressing Our awareness of the transcendental
effects that municipal export or import taxes or

licenses will have on the national economy, due


to Section 2 of Republic Act 2264, We stated that
there was no other alternative until Congress acts
to provide remedial measures to forestall any
unfavorable results.
The point remains to be determined,
however, whether constitutional limits on the
power of taxation, specifically the equal
protection clause and rule of uniformity of
taxation, were infringed.
The Constitution in the bill of rights
provides: ". . . nor shall any person be denied the
equal protection of the laws." (Sec. 1 [1], Art.
III) In Felwa vs. Salas, 5 We ruled that the equal
protection clause applies only to persons or
things identically situated and does not bar a
reasonable classification of the subject of
legislation, and a classification is reasonable
where (1) it is based on substantial distinctions
which make real differences; (2) these are
germane to the purpose of the law; (3) the
classification applies not only to present
conditions but also to future conditions which are
substantially identical to those of the present; (4)
the classification applies only to those who
belong to the same class.
A perusal of the requisites instantly shows
that the questioned ordinance does not meet
them, for it taxes only centrifugal sugar produced
and exported by the Ormoc Sugar Company, Inc.
and none other. At the time of the taxing
ordinance's enactment, Ormoc Sugar Company,
Inc., it is true, was the only sugar central in the
city of Ormoc. Still, the classification, to be
reasonable, should be in terms applicable to
future conditions as well. The taxing ordinance
should not be singular and exclusive as to
exclude any subsequently established sugar
central, of the same class as plaintiff, for the
coverage of the tax. As it is now, even if later a
similar company is set up, it cannot be subject to
the tax because the ordinance expressly points
only to Ormoc City Sugar Company, Inc. as the
entity to be levied upon.
Appellant, however, is not entitled to
interest; on the refund because the taxes were not
arbitrarily collected (Collector of Internal

Revenue v. Binalbagan). 6 At the time of


collection, the ordinance provided a sufficient
basis to preclude arbitrariness, the same being
then presumed constitutional until declared
otherwise.
WHEREFORE, the decision appealed
from is hereby reversed, the challenged
ordinance is declared unconstitutional and the
defendants-appellees are hereby ordered to
refund the P12,087.50 plaintiff-appellant paid
under protest. No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon,
Makalintal, Zaldivar, Sanchez, Castro, Angeles
and Fernando, JJ., concur.1wph1.t
(6) HON. JEJOMAR C. BINAY and the
MUNICIPALITY OF MAKATI, petitioners,
vs.
HON. EUFEMIO DOMINGO and the
COMMISSION ON AUDIT, respondents.
Jejomar C. Binay for himself and for his copetitioner.
Manuel D. Tamase and Rafael C. Marquez for
respondents.
PARAS, J.:p
The only pivotal issue before Us is whether or
not Resolution No. 60, re-enacted under
Resolution No. 243, of the Municipality of
Makati is a valid exercise of police power under
the general welfare clause.
The pertinent facts are:
On September 27, 1988, petitioner Municipality,
through its Council, approved Resolution No. 60
which reads:
A RESOLUTION TO CONFIRM AND/OR
RATIFY
THE
ONGOING
BURIAL
ASSISTANCE PROGRAM INITIATED BY
THE OFFICE OF THE MAYOR, OF
EXTENDING FINANCIAL ASSISTANCE OF
FIVE HUNDRED PESOS (P500.00) TO A
BEREAVED FAMILY, FUNDS TO BE TAKEN
OUT OF UNAPPROPRIATED AVAILABLE
FUNDS EXISTING IN THE MUNICIPAL
TREASURY. (Rollo, Annnex "A" p. 39)
Qualified beneficiaries, under the Burial
Assistance Program, are bereaved families of

Makati whose gross family income does not


exceed two thousand pesos (P2,000.00) a month.
The beneficiaries, upon fulfillment of other
requirements, would receive the amount of five
hundred pesos (P500.00) cash relief from the
Municipality of Makati. (Reno, Annex "13", p.
41)
Metro Manila Commission approved Resolution
No. 60. Thereafter, the municipal secretary
certified a disbursement fired of four hundred
thousand pesos (P400,000.00) for the
implementation of the Burial Assistance
Program. (Rollo, Annex "C", p. 43).
Resolution No. 60 was referred to respondent
Commission on Audit (COA) for its expected
allowance in audit. Based on its preliminary
findings,
respondent
COA
disapproved
Resolution No. 60 and disallowed in audit the
disbursement of finds for the implementation
thereof. (Rollo, Annex "D", P. 44)
Two letters for reconsideration (Annexes "E" and
"F", Rollo, pp. 45 and 48, respectively) filed by
petitioners Mayor Jejomar Binay, were denied by
respondent in its Decision No. 1159, in the
following manner:
Your request for reconsideration is predicated on
the following grounds, to wit:
1. Subject Resolution No. 60, s. 1988, of the
Municipal Council of Makati and the intended
disbursements fall within the twin principles of
'police power and parens patriae and
2. The Metropolitan Manila Commission
(MMC), under a Certification, dated June 5,
1989, has already appropriated the amount of
P400,000.00 to implement the Id resolution, and
the only function of COA on the matter is to
allow the financial assistance in question.
The first contention is believed untenable.
Suffice it to state that:
a statute or ordinance must have a real
substantial, or rational relation to the public
safety, health, morals, or general welfare to be
sustained as a legitimate exercise of the police
power. The mere assertion by the legislature that
a statute relates to the public health, safety, or
welfare does not in itself bring the statute within
the police power of a state for there must always

15

be an obvious and real connection between the


actual provisions of a police regulations and its
avowed purpose, and the regulation adopted
must be reasonably adapted to accomplish the
end sought to be attained. 16 Am. Jur 2d, pp.
542-543; emphasis supplied).
Here, we see no perceptible connection or
relation between the objective sought to be
attained under Resolution No. 60, s. 1988, supra,
and the alleged public safety, general welfare,
etc. of the inhabitants of Makati.
Anent the second contention, let it be stressed
that Resolution No. 60 is still subject to the
limitation that the expenditure covered thereby
should be for a public purpose, i.e., that the
disbursement of the amount of P500.00 as burial
assistance to a bereaved family of the
Municipality of Makati, or a total of P400,000.00
appropriated under the Resolution, should be for
the benefit of the whole, if not the majority, of
the inhabitants of the Municipality and not for
the benefit of only a few individuals as in the
present case. On this point government funds or
property shall be spent or used solely for public
purposes. (Cf. Section 4[2], P.D. 1445). (pp. 5051, Rollo)
Bent on pursuing the Burial Assistance Program
the Municipality of Makati, through its Council,
passed Resolution No. 243, re-affirming
Resolution No. 60 (Rollo, Annex "H", p. 52).
However, the Burial Assistance Program has
been stayed by COA Decision No. 1159.
Petitioner, through its Mayor, was constrained to
file this special civil action of certiorari praying
that COA Decision No. 1159 be set aside as null
and void.
The police power is a governmental function, an
inherent attribute of sovereignty, which was born
with civilized government. It is founded largely
on the maxims, "Sic utere tuo et ahenum non
laedas and "Salus populi est suprema lex Its
fundamental purpose is securing the general
welfare, comfort and convenience of the people.
Police power is inherent in the state but not in
municipal corporations (Balacuit v. CFI of
Agusan del Norte, 163 SCRA 182). Before a
municipal corporation may exercise such power,

there must be a valid delegation of such power


by the legislature which is the repository of the
inherent powers of the State. A valid delegation
of police power may arise from express
delegation, or be inferred from the mere fact of
the creation of the municipal corporation; and as
a general rule, municipal corporations may
exercise police powers within the fair intent and
purpose of their creation which are reasonably
proper to give effect to the powers expressly
granted, and statutes conferring powers on public
corporations have been construed as empowering
them to do the things essential to the enjoyment
of life and desirable for the safety of the people.
(62 C.J.S., p. 277). The so-called inferred police
powers of such corporations are as much
delegated powers as are those conferred in
express terms, the inference of their delegation
growing out of the fact of the creation of the
municipal corporation and the additional fact that
the corporation can only fully accomplish the
objects of its creation by exercising such powers.
(Crawfordsville vs. Braden, 28 N.E. 849).
Furthermore, municipal corporations, as
governmental agencies, must have such
measures of the power as are necessary to enable
them to perform their governmental functions.
The power is a continuing one, founded on
public necessity. (62 C.J.S. p. 273) Thus, not
only does the State effectuate its purposes
through the exercise of the police power but the
municipality does also. (U.S. v. Salaveria, 39
Phil. 102).
Municipal governments exercise this power
under the general welfare clause: pursuant
thereto they are clothed with authority to "enact
such ordinances and issue such regulations as
may be necessary to carry out and discharge the
responsibilities conferred upon it by law, and
such as shall be necessary and proper to provide
for the health, safety, comfort and convenience,
maintain peace and order, improve public
morals, promote the prosperity and general
welfare of the municipality and the inhabitants
thereof, and insure the protection of property
therein." (Sections 91, 149, 177 and 208, BP
337). And under Section 7 of BP 337, "every

local government unit shall exercise the powers


expressly granted, those necessarily implied
therefrom, as well as powers necessary and
proper for governance such as to promote health
and safety, enhance prosperity, improve morals,
and maintain peace and order in the local
government unit, and preserve the comfort and
convenience of the inhabitants therein."
Police power is the power to prescribe
regulations to promote the health, morals, peace,
education, good order or safety and general
welfare of the people. It is the most essential,
insistent, and illimitable of powers. In a sense it
is the greatest and most powerful attribute of the
government. It is elastic and must be responsive
to various social conditions. (Sangalang, et al. vs.
IAC, 176 SCRA 719). On it depends the security
of social order, the life and health of the citizen,
the comfort of an existence in a thickly
populated community, the enjoyment of private
and social life, and the beneficial use of property,
and it has been said to be the very foundation on
which our social system rests. (16 C.J.S., P. 896)
However, it is not confined within narrow
circumstances of precedents resting on past
conditions; it must follow the legal progress of a
democratic way of life. (Sangalang, et al. vs.
IAC, supra).
In the case at bar, COA is of the position that
there is "no perceptible connection or relation
between the objective sought to be attained under
Resolution No. 60, s. 1988, supra, and the
alleged public safety, general welfare. etc. of the
inhabitants of Makati." (Rollo, Annex "G", p.
51).
Apparently, COA tries to re-define the scope of
police power by circumscribing its exercise to
"public safety, general welfare, etc. of the
inhabitants of Makati."
In the case of Sangalang vs. IAC, supra, We
ruled that police power is not capable of an exact
definition but has been, purposely, veiled in
general
terms
to
underscore
its all
comprehensiveness. Its scope, over-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.
The police power of a municipal corporation is
broad, and has been said to be commensurate
with, but not to exceed, the duty to provide for
the real needs of the people in their health,
safety, comfort, and convenience as consistently
as may be with private rights. It extends to all the
great public needs, and, in a broad sense includes
all legislation and almost every function of the
municipal government. It covers a wide scope of
subjects, and, while it is especially occupied with
whatever affects the peace, security, health,
morals, and general welfare of the community, it
is not limited thereto, but is broadened to deal
with conditions which exists so as to bring out of
them the greatest welfare of the people by
promoting public convenience or general
prosperity, and to everything worthwhile for the
preservation of comfort of the inhabitants of the
corporation (62 C.J.S. Sec. 128). Thus, it is
deemed inadvisable to attempt to frame any
definition which shall absolutely indicate the
limits of police power.
COA's additional objection is based on its
contention that "Resolution No. 60 is still subject
to the limitation that the expenditure covered
thereby should be for a public purpose, ... should
be for the benefit of the whole, if not the
majority, of the inhabitants of the Municipality
and not for the benefit of only a few individuals
as in the present case." (Rollo, Annex "G", p.
51).
COA is not attuned to the changing of the times.
Public purpose is not unconstitutional merely
because it incidentally benefits a limited number
of persons. As correctly pointed out by the Office
of the Solicitor General, "the drift is towards
social welfare legislation geared towards state
policies to provide adequate social services
(Section 9, Art. II, Constitution), the promotion
of the general welfare (Section 5, Ibid) social
justice (Section 10, Ibid) as well as human
dignity and respect for human rights. (Section
11, Ibid." (Comment, p. 12)
The care for the poor is generally recognized as a
public duty. The support for the poor has long

16

been an accepted exercise of police power in the


promotion of the common good.
There is no violation of the equal protection
clause in classifying paupers as subject of
legislation. Paupers may be reasonably
classified. Different groups may receive varying
treatment. Precious to the hearts of our
legislators, down to our local councilors, is the
welfare of the paupers. Thus, statutes have been
passed giving rights and benefits to the disabled,
emancipating the tenant-farmer from the
bondage of the soil, housing the urban poor, etc.
Resolution No. 60, re-enacted under Resolution
No. 243, of the Municipality of Makati is a
paragon of the continuing program of our
government towards social justice. The Burial
Assistance Program is a relief of pauperism,
though not complete. The loss of a member of a
family is a painful experience, and it is more
painful for the poor to be financially burdened by
such death. Resolution No. 60 vivifies the very
words of the late President Ramon Magsaysay
'those who have less in life, should have more in
law." This decision, however must not be taken
as a precedent, or as an official go-signal for
municipal governments to embark on a
philanthropic orgy of inordinate dole-outs for
motives political or otherwise.
PREMISES CONSIDERED, and with the aforementioned caveat, this petition is hereby
GRANTED and the Commission on Audit's
Decision No. 1159 is hereby SET ASIDE.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz,
Padilla, Bidin, Sarmiento, Grio-Aquino,
Medialdea, Regalado and
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 basis of Section 47, R.A. 6975,
otherwise known as Department of Interior and
Local Government Act of 1990, which provides:
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).
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 and mandamus 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.
Petitioner posits that as a member of the
Philippine National Police, under Sec. 91 of RA
6975 which reads:
Sec. 91. The Civil Service Law and its
implementing rules and regulations shall apply to
all personnel of the Department.
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
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)

17

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
Anti-Graft 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 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 AntiGraft 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 Layno and 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 it say that after the lapse of the 90day 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.

18

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. PIMENTEL. Anong page iyan, Rene?
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.
SEN. GONZALES. Anyway, kung ma-exempt
na rito naman siya e.
REP. GUTANG. Mayroong entitlement to
reinstatement and pay. . . .
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 Supreme
Court the trial.
SEN. PIMENTEL. Ha?
REP. ALBANO. The trial must be done within
ninety days,
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. One solution, Mr. Chairman.

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.
SEN. PIMENTEL. Swift justice.
REP. ALBANO. Mr. Chairman.
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. No, because you can legislate
at least.
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, robbery. That's why it is in that context
that there is a difference between a purely antigraft 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.
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 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.
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
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.
(8) TERESITA TABLARIN, MA. LUZ
CIRIACO, MA NIMFA B. ROVIRA,
EVANGELINA S. LABAO, in their behalf
and in behalf of applicants for admission into
the Medical Colleges during the school year
1987-88 and future years who have not taken
or successfully hurdled the National Medical
Admission Test (NMAT). petitioners, vs. THE
HONORABLE JUDGE ANGELINA S.
GUTIERREZ, Presiding Judge of Branch
XXXVII of the Regional Trial Court of the
National Capital Judicial Region with seat at
Manila, THE HONORABLE SECRETARY
LOURDES QUISUMBING, in her capacity as
Chairman of the BOARD OF MEDICAL
EDUCATION, and THE CENTER FOR

19

EDUCATIONAL MEASUREMENT (CEM), examination for registration of physicians; and


respondents.
(c) the supervision, control and regulation of the
practice of medicine in the Philippines.
FELICIANO, J.:
(Underscoring supplied)
The petitioners sought admission into colleges or The statute, among other things, created a Board
schools of medicine for the school year 1987- of Medical Education which is composed of (a)
1988. However, the petitioners either did not the Secretary of Education, Culture and Sports or
take or did not successfully take the National his duly authorized representative, as Chairman;
Medical Admission Test (NMAT) required by the (b) the Secretary of Health or his duly authorized
Board of Medical Education, one of the public representative; (c) the Director of Higher
respondents, and administered by the private Education or his duly authorized representative;
respondent, the Center for Educational (d) the Chairman of the Medical Board or his
Measurement (CEM).
duly
authorized
representative;
(e)
a
On 5 March 1987, the petitioners filed with the representative of the Philippine Medical
Regional Trial Court, National Capital Judicial Association; (f) the Dean of the College of
Region, a Petition for Declaratory Judgment and Medicine, University of the Philippines; (g) a
Prohibition with a prayer for Temporary representative of the Council of Deans of
Restraining Order and Preliminary Injunction. Philippine Medical Schools; and (h) a
The petitioners sought to enjoin the Secretary of representative of the Association of Philippine
Education, Culture and Sports, the Board of Medical Colleges, as members. The functions of
Medical Education and the Center for the Board of Medical Education specified in
Educational Measurement from enforcing Section 5 of the statute include the following:
Section 5 (a) and (f) of Republic Act No. 2382, (a) To determine and prescribe equirements for
as amended, and MECS Order No. 52, series of admission into a recognized college of medicine;
1985, dated 23 August 1985 and from requiring (b) To determine and prescribe requirements for
the taking and passing of the NMAT as a minimum physical facilities of colleges of
condition for securing certificates of eligibility medicine, to wit: buildings, including hospitals,
for admission, from proceeding with accepting equipment and supplies, apparatus, instruments,
applications for taking the NMAT and from appliances, laboratories, bed capacity for
administering the NMAT as scheduled on 26 instruction purposes, operating and delivery
April 1987 and in the future. After hearing on the rooms, facilities for outpatient services, and
petition for issuance of preliminary injunction, others, used for didactic and practical instruction
the trial court denied said petition on 20 April in accordance with modern trends;
1987. The NMAT was conducted and (c) To determine and prescribe the minimum
administered as previously scheduled.
number and minimum qualifications of teaching
Petitioners accordingly filed this Special Civil personnel, including student-teachers ratio;
Action for certiorari with this Court to set aside (d) To determine and prescribe the minimum
the Order of the respondent judge denying the required curriculum leading to the degree of
petition for issuance of a writ of preliminary Doctor of Medicine;
injunction.
(e) To authorize the implementation of
Republic Act 2382, as amended by Republic experimental medical curriculum in a medical
Acts Nos. 4224 and 5946, known as the school that has exceptional faculty and
"Medical Act of 1959" defines its basic instrumental facilities. Such an experimental
objectives in the following manner:
curriculum may prescribe admission and
Section 1. Objectives. This Act provides for graduation requirements other than those
and shall govern (a) the standardization and prescribed in this Act; Provided, That only
regulation of medical education (b) the

exceptional students shall be enrolled in the


experimental curriculum;
(f) To accept applications for certification for
admission to a medical school and keep a
register of those issued said certificate; and to
collect from said applicants the amount of
twenty-five pesos each which shall accrue to the
operating fund of the Board of Medical
Education;
(g) To select, determine and approve hospitals or
some departments of the hospitals for training
which comply with the minimum specific
physical facilities as provided in subparagraph
(b) hereof; and
(h) To promulgate and prescribe and enforce the
necessary rules and regulations for the proper
implementation of the foregoing functions.
(Emphasis supplied)
Section 7 prescribes certain minimum
requirements for applicants to medical schools:
Admission requirements. The medical college
may admit any student who has not been
convicted by any court of competent jurisdiction
of any offense involving moral turpitude and
who presents (a) a record of completion of a
bachelor's degree in science or arts; (b) a
certificate of eligibility for entrance to a medical
school from the Board of Medical Education; (c)
a certificate of good moral character issued by
two former professors in the college of liberal
arts; and (d) birth certificate. Nothing in this act
shall be construed to inhibit any college of
medicine from establishing, in addition to the
preceding, other entrance requirements that may
be deemed admissible.
xxx
xxx
x x x (Emphasis supplied)
MECS Order No. 52, s. 1985, issued by the then
Minister of Education, Culture and Sports and
dated 23 August 1985, established a uniform
admission test called the National Medical
Admission Test (NMAT) as an additional
requirement for issuance of a certificate of
eligibility for admission into medical schools of
the Philippines, beginning with the school year
1986-1987. This Order goes on to state that:
2. The NMAT, an aptitude test, is considered as
an instrument toward upgrading the selection of

applicants for admission into the medical


schools and its calculated to improve the quality
of medical education in the country. The cutoff
score for the successful applicants, based on the
scores on the NMAT, shall be determined every
year by the Board of Medical Education after
consultation with the Association of Philippine
Medical Colleges. The NMAT rating of each
applicant, together with the other admission
requirements as presently called for under
existing rules, shall serve as a basis for the
issuance of the prescribed certificate of
elegibility for admission into the medical
colleges.
3. Subject to the prior approval of the Board of
Medical Education, each medical college may
give other tests for applicants who have been
issued a corresponding certificate of eligibility
for admission that will yield information on
other aspects of the applicant's personality to
complement the information derived from the
NMAT.
xxx
xxx
xxx
8. No applicant shall be issued the requisite
Certificate of Eligibility for Admission (CEA), or
admitted for enrollment as first year student in
any medical college, beginning the school year,
1986-87, without the required NMAT
qualification as called for under this Order.
(Underscoring supplied)
Pursuant to MECS Order No. 52, s. 1985, the
private respondent Center conducted NMATs for
entrance to medical colleges during the school
year 1986-1987. In December 1986 and in April
1987, respondent Center conducted the NMATs
for admission to medical colleges during the
school year 1987.1988.1avvphi1
Petitioners raise the question of whether or not a
writ of preliminary injunction may be issued to
enjoin the enforcement of Section 5 (a) and (f) of
Republic Act No. 2382, as amended, and MECS
Order No. 52, s. 1985, pending resolution of the
issue of constitutionality of the assailed statute
and administrative order. We regard this issue as
entirely peripheral in nature. It scarcely needs
documentation that a court would issue a writ of
preliminary injunction only when the petitioner

20

assailing a statute or administrative order has


made out a case of unconstitutionality strong
enough to overcome, in the mind of the judge,
the presumption of constitutionality, aside from
showing a clear legal right to the remedy sought.
The fundamental issue is of course the
constitutionality of the statute or order assailed.
1. The petitioners invoke a number of provisions
of the 1987 Constitution which are, in their
assertion,
violated
by
the
continued
implementation of Section 5 (a) and (f) of
Republic Act 2381, as amended, and MECS
Order No. 52, s. 1985. The provisions invoked
read as follows:
(a) Article 11, Section 11: "The state values the
dignity of every human person and guarantees
full respect of human rights. "
(b) ArticleII, Section l3: "The State recognizes
the vital role of the youth in nation building and
shall promote and protect their physical, moral,
spiritual, intellectual and social well being. It
shall inculcate in the youth patriotism and
nationalism, and encourage their involvement in
public and civic affairs."
(c) Article II, Section 17: "The State shall give
priority to education, science and technology,
arts, culture and sports to foster patriotism and
nationalism, accelerate social progress and to
promote total human liberation and development.
"
(d) Article XIV, Section l: "The State shall
protect and promote the right of all citizens to
quality education at all levels and take
appropriate steps to make such education
accessible to all. "
(e) Article XIV, Section 5 (3): "Every citizen has
a right to select a profession or course of study,
subject to fair, reasonable and equitable
admission and academic requirements."
Article II of the 1987 Constitution sets forth in
its second half certain "State policies" which the
government is enjoined to pursue and promote.
The petitioners here have not seriously
undertaken to demonstrate to what extent or in
what manner the statute and the administrative
order they assail collide with the State policies
embodied in Sections 11, 13 and 17. They have

not, in other words, discharged the burden of


proof which lies upon them. This burden is
heavy enough where the constitutional provision
invoked is relatively specific, rather than
abstract, in character and cast in behavioral or
operational terms. That burden of proof becomes
of necessity heavier where the constitutional
provision invoked is cast, as the second portion
of Article II is cast, in language descriptive of
basic policies, or more precisely, of basic
objectives of State policy and therefore highly
generalized in tenor. The petitioners have not
made their case, even a prima facie case, and we
are not compelled to speculate and to imagine
how the legislation and regulation impugned as
unconstitutional could possibly offend the
constitutional provisions pointed to by the
petitioners.
Turning to Article XIV, Section 1, of the 1987
Constitution, we note that once more petitioners
have failed to demonstrate that the statute and
regulation they assail in fact clash with that
provision. On the contrary we may note-in
anticipation of discussion infra that the statute
and the regulation which petitioners attack are in
fact designed to promote "quality education" at
the level of professional schools. When one
reads Section 1 in relation to Section 5 (3) of
Article XIV as one must one cannot but note that
the latter phrase of Section 1 is not to be read
with absolute literalness. The State is not really
enjoined to take appropriate steps to make
quality education " accessible to all who might
for any number of reasons wish to enroll in a
professional school but rather merely to make
such education accessible to all who qualify
under "fair, reasonable and equitable admission
and academic requirements. "
2. In the trial court, petitioners had made the
argument that Section 5 (a) and (f) of Republic
Act No. 2382, as amended, offend against the
constitutional principle which forbids the undue
delegation of legislative power, by failing to
establish the necessary standard to be followed
by the delegate, the Board of Medical Education.
The general principle of non-delegation of
legislative power, which both flows from the

reinforces the more fundamental rule of the


separation and allocation of powers among the
three great departments of government, 1 must be
applied with circumspection in respect of statutes
which like the Medical Act of 1959, deal with
subjects as obviously complex and technical as
medical education and the practice of medicine
in our present day world. Mr. Justice Laurel
stressed this point 47 years ago in Pangasinan
Transportation Co., Inc. vs. The Public Service
Commission:2
One thing, however, is apparent in the
development of the principle of separation of
powers and that is that the maxim of delegatus
non potest delegare or delegate potestas non
potest delegare, adopted this practice (Delegibus
et Consuetudiniis Anglia edited by G.E.
Woodbine, Yale University Press, 1922, Vol. 2, p.
167) but which is also recognized in principle in
the Roman Law (d. 17.18.3) has been made to
adapt itself to the complexities of modern
government, giving rise to the adoption, within
certain limits of the principle of "subordinate
legislation," not only in the United States and
England but in practically all modern
governments. (People vs. Rosenthal and Osmena
[68 Phil. 318, 1939]. Accordingly, with the
growing complexity of modern life, the
multiplication of the subjects of governmental
regulation and the increased difficulty of
administering the laws, there is a constantly
growing tendency toward the delegation of
greater power by the legislature, and toward the
approval of the practice by the courts." 3
The standards set for subordinate legislation in
the exercise of rule making authority by an
administrative agency like the Board of Medical
Education are necessarily broad and highly
abstract. As explained by then Mr. Justice
Fernando in Edu v. Ericta4
The standard may be either expressed or implied.
If the former, the non-delegation objection is
easily met. The standard though does not have to
be spelled out specifically. It could be implied
from the policy and purpose of the act
considered as a whole. In the Reflector Law,
clearly the legislative objective is public safety.

What is sought to be attained as in Calalang v.


Williams is "safe transit upon the roads. 5
We believe and so hold that the necessary
standards are set forth in Section 1 of the 1959
Medical Act: "the standardization and regulation
of medical education" and in Section 5 (a) and 7
of the same Act, the body of the statute itself,
and that these considered together are sufficient
compliance with the requirements of the nondelegation principle.
3. The petitioners also urge that the NMAT
prescribed in MECS Order No. 52, s. 1985, is an
"unfair,
unreasonable
and
inequitable
requirement," which results in a denial of due
process. Again, petitioners have failed to specify
just what factors or features of the NMAT render
it "unfair" and "unreasonable" or "inequitable."
They appear to suggest that passing the NMAT is
an unnecessary requirement when added on top
of the admission requirements set out in Section
7 of the Medical Act of 1959, and other
admission requirements established by internal
regulations of the various medical schools,
public or private. Petitioners arguments thus
appear to relate to utility and wisdom or
desirability of the NMAT requirement. But
constitutionality is essentially a question of
power or authority: this Court has neither
commission or competence to pass upon
questions of the desirability or wisdom or utility
of legislation or administrative regulation. Those
questions must be address to the political
departments of the government not to the courts.
There is another reason why the petitioners'
arguments must fail: the legislative and
administrative provisions impugned by them
constitute, to the mind of the Court, a valid
exercise of the police power of the state. The
police power, it is commonplace learning, is the
pervasive and non-waivable power and authority
of the sovereign to secure and promote an the
important interests and needs in a word, the
public order of the general community.6 An
important component of that public order is the
health and physical safety and well being of the
population, the securing of which no one can

21

deny is a legitimate objective of governmental


effort and regulation.7
Perhaps the only issue that needs some
consideration is whether there is some
reasonable relation between the prescribing of
passing the NMAT as a condition for admission
to medical school on the one hand, and the
securing of the health and safety of the general
community, on the other hand. This question is
perhaps most usefully approached by recalling
that the regulation of the practice of medicine in
all its branches has long been recognized as a
reasonable method of protecting the health and
safety of the public. 8 That the power to regulate
and control the practice of medicine includes the
power to regulate admission to the ranks of those
authorized to practice medicine, is also well
recognized. thus, legislation and administrative
regulations requiring those who wish to practice
medicine first to take and pass medical board
examinations have long ago been recognized as
valid exercises of governmental power.9
Similarly, the establishment of minimum medical
educational requirements i.e., the completion
of prescribed courses in a recognized medical
school for admission to the medical
profession, has also been sustained as a
legitimate exercise of the regulatory authority of
the state.10 What we have before us in the instant
case is closely related: the regulation of access
to medical schools. MECS Order No. 52, s.
1985, as noted earlier, articulates the rationale of
regulation of this type: the improvement of the
professional and technical quality of the
graduates of medical schools, by upgrading the
quality of those admitted to the student body of
the medical schools. That upgrading is sought by
selectivity in the process of admission,
selectivity consisting, among other things, of
limiting admission to those who exhibit in the
required degree the aptitude for medical studies
and eventually for medical practice. The need to
maintain, and the difficulties of maintaining,
high standards in our professional schools in
general, and medical schools in particular, in the
current stage of our social and economic
development, are widely known.

We believe that the government is entitled to


prescribe an admission test like the NMAT as a
means for achieving its stated objective of
"upgrading the selection of applicants into [our]
medical schools" and of "improv[ing] the quality
of medical education in the country." Given the
widespread use today of such admission tests in,
for instance, medical schools in the United States
of America (the Medical College Admission Test
[MCAT]11 and quite probably in other countries
with far more developed educational resources
than our own, and taking into account the failure
or inability of the petitioners to even attempt to
prove otherwise, we are entitled to hold that the
NMAT is reasonably related to the securing of
the ultimate end of legislation and regulation in
this area. That end, it is useful to recall, is the
protection of the public from the potentially
deadly effects of incompetence and ignorance in
those who would undertake to treat our bodies
and minds for disease or trauma.
4. Petitioners have contended, finally, that MECS
Order No. 52, s. 1985, is in conflict with the
equal protection clause of the Constitution. More
specifically, petitioners assert that that portion of
the MECS Order which provides that
the cutoff score for the successful applicants,
based on the scores on the NMAT, shall be
determined every-year by the Board of Medical
11 Education after consultation with the
Association of Philippine Medical Colleges.
(Emphasis supplied)
infringes the requirements of equal protection.
They assert, in other words, that students seeking
admission during a given school year, e.g., 19871988, when subjected to a different cutoff score
than that established for an, e.g., earlier school
year, are discriminated against and that this
renders the MECS Order "arbitrary and
capricious." The force of this argument is more
apparent than real. Different cutoff scores for
different school years may be dictated by
differing conditions obtaining during those years.
Thus, the appropriate cutoff score for a given
year may be a function of such factors as the
number of students who have reached the cutoff
score established the preceding year; the number

of places available in medical schools during the


current year; the average score attained during
the current year; the level of difficulty of the test
given during the current year, and so forth. To
establish a permanent and immutable cutoff
score regardless of changes in circumstances
from year to year, may wen result in an
unreasonable rigidity. The above language in
MECS Order No. 52, far from being arbitrary or
capricious, leaves the Board of Medical
Education with the measure of flexibility needed
to meet circumstances as they change.
We conclude that prescribing the NMAT and
requiring certain minimum scores therein as a
condition for admission to medical schools in the
Philippines, do not constitute an unconstitutional
imposition.
WHEREFORE, the Petition for certiorari is
DISMISSED and the Order of the respondent
trial court denying the petition for a writ of
preliminary injunction is AFFIRMED. Costs
against petitioners.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa,
Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Gancayco, Padilla, Bidin, Sarmiento and Cortes,
JJ., concur.
(9) HON. ALFREDO S. LIM, in his capacity
as Mayor of Manila, petitioner, vs. HON.
FELIPE G. PACQUING, as Judge, Branch
40, Regional Trial Court of Manila and
ASSOCIATED
DEVELOPMENT
CORPORATION, respondents.
G.R. No. 117263. January 27, 1995.*
TEOFISTO
GUINGONA,
JR.
and
DOMINADOR R. CEPEDA, JR., petitioners,
vs.
HON.
VETINO
REYES
and
ASSOCIATED
DEVELOPMENT
CORPORATION, respondents.
PADILLA, J.:
These two (2) cases which are inter-related
actually involve simple issues. if these issues
have apparently become complicated, it is not by

reason of their nature because of the events and


dramatis personae involved.
The petition in G.R. No. 115044 was dismissed
by the First Division of this Court on 01
September 1994 based on a finding that there
was "no abuse of discretion, much less lack of or
excess of jurisdiction, on the part of respondent
judge [Pacquing]", in issuing the questioned
orders. Judge Pacquing had earlier issued in
Civil Case No. 88-45660, RTC of Manila,
Branch 40, the following orders which were
assailed by the Mayor of the City of Manila,
Hon. Alfredo S. Lim, in said G.R. No. 115044:
a. order dated 28 March 1994 directing Manila
mayor Alfredo S. Lim to issue the permit/license
to operate the jai-alai in favor of Associated
Development Corporation (ADC).
b. order dated 11 April 1994 directing mayor
Lim to explain why he should not be cited for
contempt for non-compliance with the order
dated 28 March 1994.
c. order dated 20 April 1994 reiterating the
previous order directing Mayor Lim to
immediately issue the permit/license to
Associated Development Corporation (ADC).
The order dated 28 march 1994 was in turn
issued upon motion by ADC for execution of a
final judgment rendered on 9 September 1988
which ordered the Manila Mayor to immediately
issue to ADC the permit/license to operate the
jai-alai in Manila, under Manila Ordinance No.
7065.
On 13 September 1994, petitioner Guingona (as
executive secretary) issued a directive to then
chairman of the Games and Amusements Board
(GAB) Francisco R. Sumulong, jr. to hold in
abeyance the grant of authority, or if any had
been issued, to withdraw such grant of authority,
to Associated Development Corporation to
operate the jai-alai in the City of Manila, until
the following legal questions are properly
resolved:
1. Whether P.D. 771 which revoked all existing
Jai-Alai franchisers issued by local governments
as of 20 August 1975 is unconstitutional.
2. Assuming that the City of Manila had the
power on 7 September 1971 to issue a Jai-Alai

22

franchise
to
Associated
Development
Corporation, whether the franchise granted is
valied considering that the franchise has no
duration, and appears to be granted in perpetuity.
3. Whether the City of Manila had the power to
issue a Jai-Alai franchise to Associated
Development Corporation on 7 September 1971
in view of executive Order No. 392 dated 1
January 1951 which transferred from local
governments to the Games and Amusements
Board the power to regulate Jai-Alai. 1
On 15 September 1994, respondent Associated
Development Corporation (ADC) filed a petition
for prohibition, mandamus, injunction and
damages with prayer for temporary restraining
order and/or writ of preliminary injunction in the
Regional Trial Court of Manila against petitioner
Guingona and then GAB chairman Sumulong,
docketed as Civil Case No. 94-71656, seeking to
prevent GAB from withdrawing the provisional
authority that had earlier been granted to ADC.
On the same day, the RTC of Manila, Branch 4,
through presiding Judge Vetino Reyes, issued a
temporary restraining order enjoining the GAB
from withdrawing ADC's provisional authority.
This temporary restraining order was converted
into a writ of preliminary injunction upon ADC's
posting of a bond in the amount of
P2,000,000.00. 2
Subsequently, also in G.R. No. 115044, the
Republic of the Philippines, through the Games
and Amusements Board, filed a "Motion for
Intervention; for Leave to File a Motion for
reconsideration in Intervention; and to Refer the
case to the Court En Banc" and later a "Motion
for Leave to File Supplemental Motion for
Reconsideration-in-Intervention and to Admit
Attached
Supplemental
Motion
for
Reconsideration-in-Intervention".
In an En Banc Resolution dated 20 September
1994, this Court referred G.R. No. 115044 to the
Court En Banc and required the respondents
therein to comment on the aforementioned
motions.
Meanwhile, Judge Reyes on 19 October 1994
issued another order, this time, granting ADC a
writ of preliminary mandatory injunction against

Guingona and GAB to compel them to issue in


favor of ADC the authority to operate jai-alai.
Guingona, as executive secretary, and
Dominador Cepeda, Jr. as the new GAB
chairman, then filed the petition in G.R. No.
117263 assailing the abovementioned orders of
respondent Judge Vetino Reyes.
On 25 October 1994, in G.R. No. 117263, this
Court granted petitioner's motion for leave to file
supplemental petition and to admit attached
supplemental petition with urgent prayer for
restraining order. The Court further required
respondents to file their comment on the petition
and supplemental petition with urgent prayer for
restraining order. The Court likewise set the case
and all incidents thereof for hearing on 10
November 1994.
At the hearing on 10 November 1994, the issues
to be resolved were formulated by the Court as
follows:
1. whether or not intervention by the Republic of
the Philippines at this stage of the proceedings is
proper;
2. assuming such intervention is proper, whether
or not the Associated Development Corporation
has a valid and subsisting franchise to maintain
and operate the jai-alai;
3. whether or not there was grave abuse of
discretion committed by respondent Judge Reyes
in issuing the aforementioned temporary
restraining order (later writ of preliminary
injunction); and
4. whether or not there was grave abuse of
discretion committed by respondent Judge Reyes
in issuing the aforementioned writ of preliminary
mandatory injunction.
On the issue of the propriety of the intervention
by the Republic of the Philippines, a question
was raised during the hearing on 10 November
1994 as to whether intervention in G.R. No.
115044 was the proper remedy for the national
government to take in questioning the existence
of a valid ADC franchise to operate the jai-alai or
whether a separate action for quo warranto under
Section 2, Rule 66 of the Rules of Court was the
proper remedy.

We need not belabor this issue since counsel for


respondent ADC agreed to the suggestion that
this Court once and for all settle all substantive
issues raised by the parties in these cases.
Moreover, this Court can consider the petition
filed in G.R. No. 117263 as one for quo warranto
which is within the original jurisdiction of the
Court under section 5(1), Article VIII of the
Constitution. 3
On the propriety of intervention by the Republic,
however, it will be recalled that this Court in
Director of Lands v. Court of Appeals (93 SCRA
238) allowed intervention even beyond the
period prescribed in Section 2 Rule 12 of the
Rules of Court. The Court ruled in said case that
a denial of the motions for intervention would
"lead the Court to commit an act of injustice to
the movants, to their successor-in-interest and to
all purchasers for value and in good faith and
thereby open the door to fraud, falsehood and
misrepresentation, should intervenors' claim be
proven to be true."
In the present case, the resulting injustice and
injury, should the national government's
allegations be proven correct, are manifest, since
the latter has squarely questioned the very
existence of a valid franchise to maintain and
operate the jai-alai (which is a gambling
operation) in favor of ADC. As will be more
extensively discussed later, the national
government contends that Manila Ordinance No.
7065 which purported to grant to ADC a
franchise to conduct jai-alai operations is void
and ultra vires since Republic Act No. 954,
approved on 20 June 1953, or very much earlier
than said Ordinance No. 7065, the latter
approved 7 September 1971, in Section 4
thereof, requires a legislative franchise, not a
municipal franchise, for the operation of jai-alai.
Additionally, the national government argues that
even
assuming,
arguendo,
that
the
abovementioned ordinance is valid, ADC's
franchise was nonetheless effectively revoked by
Presidential decree No. 771, issued on 20 August
1975, Sec. 3 of which expressly revoked all
existing franchises and permits to operate all

forms of gambling facilities (including the jaialai) issued by local governments.


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

23

possession of a valid franchise, the well-settled


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

maintain or use a totalizator or other device,


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

Petitioners in G.R. No. 117263 argue that


Republic Act No. 954 effectively removed the
power of the Municipal Board of Manila to grant
franchises for gambling operations. It is argued
that the term "legislative franchise" in Rep. Act
No. 954 is used to refer to franchises issued by
Congress.
On the other hand, ADC contends that Republic
Act N. 409 (Manila Chapter) gives legislative
powers to the Municipal Board to grant
franchises, and since Republic Act No. 954 does
not specifically qualify the word "legislative" as
referring exclusively to Congress, then Rep. Act
No. 954 did not remove the power of the
Municipal Board under Section 18(jj) of
Republic Act No. 409 and consequently it was
within the power of the City of Manila to allow
ADC to operate the jai-alai in the City of Manila.
On this point, the government counter-argues
that the term "legislative powers" is used in Rep.
Act No. 409 merely to distinguish the powers
under Section 18 of the law from the other
powers of the Municipal Board, but that the term
"legislative franchise" in Rep. Act No. 954 refers
to a franchise granted solely by Congress.
Further, the government argues that Executive
Order No. 392 dated 01 January 1951 transferred
even the power to regulate Jai-Alai from the
local governments to the Games and
Amusements Board (GAB), a national
government agency.
It is worthy of note that neither of the authorities
relied upon by ADC to support its alleged
possession of a valid franchise, namely the
Charter of the City of Manila (Rep. Act No. 409)
and Manila Ordinance No. 7065 uses the word
"franchise". Rep. Act No. 409 empowers the
Municipal Board of Manila to "tax, license,
permit and regulate wagers or betting" and to
"grant exclusive rights to establishments", while
Ordinance No. 7065 authorized the Manila City
Mayor to "allow and permit" ADC to operate jaialai facilities in the City of Manila.
It is clear from the foregoing that Congress did
not delegate to the City of Manila the power "to
franchise" wagers or betting, including the jaialai, but retained for itself such power "to

franchise". What Congress delegated to the City


of Manila in Rep. Act No. 409, with respect to
wagers or betting, was the power to "license,
permit, or regulate" which therefore means that a
license or permit issued by the City of Manila to
operate a wager or betting activity, such as the
jai-alai where bets are accepted, would not
amount to something meaningful UNLESS the
holder of the permit or license was also
FRANCHISED by the national government to so
operate. Moreover, even this power to license,
permit, or regulate wagers or betting on jai-alai
was removed from local governments, including
the City of Manila, and transferred to the GAB
on 1 January 1951 by Executive Order No. 392.
The net result is that the authority to grant
franchises for the operation of jai-alai frontons is
in Congress, while the regulatory function is
vested in the GAB.
In relation, therefore, to the facts of this case,
since ADC has no franchise from Congress to
operate the jai-alai, it may not so operate even if
its has a license or permit from the City Mayor to
operate the jai-alai in the City of Manila.
It cannot be overlooked, in this connection, that
the Revised Penal Code punishes gambling and
betting under Articles 195 to 199 thereof.
Gambling is thus generally prohibited by law,
unless another law is enacted by Congress
expressly exempting or excluding certain forms
of gambling from the reach of criminal law.
Among these form the reach of criminal law.
Among these forms of gambling allowed by
special law are the horse races authorized by
Republic Acts Nos. 309 and 983 and gambling
casinos authorized under Presidential Decree No.
1869.
While jai-alai as a sport is not illegal per se, the
accepting of bets or wagers on the results of jaialai games is undoubtedly gambling and,
therefore, a criminal offense punishable under
Articles 195-199 of the Revised Penal Code,
unless it is shown that a later or special law had
been passed allowing it. ADC has not shown any
such special law.
Republic Act No. 409 (the Revised Charter of the
City of Manila) which was enacted by Congress

24

on 18 June 1949 gave the Municipal Board


certain delegated legislative powers under
Section 18. A perusal of the powers enumerated
under Section 18 shows that these powers are
basically regulatory in nature. 5 The regulatory
nature of these powers finds support not only in
the plain words of the enumerations under
Section 28 but also in this Court's ruling in
People v. Vera (65 Phil. 56).
In Vera, this Court declared that a law which
gives the Provincial Board the discretion to
determine whether or not a law of general
application (such as, the Probation law-Act No.
4221) would or would not be operative within
the province, is unconstitutional for being an
undue delegation of legislative power.
From the ruling in Vera, it would be logical to
conclude that, if ADC's arguments were to
prevail, this Court would likewise declare
Section 18(jj) of the Revised Charter of Manila
unconstitutional for the power it would delegate
to the Municipal Board of Manila would give the
latter the absolute and unlimited discretion to
render the penal code provisions on gambling
inapplicable or inoperative to persons or entities
issued
permits
to
operate
gambling
establishments in the City of Manila.
We need not go to this extent, however, since the
rule is that laws must be presumed valid,
constitutional and in harmony with other laws.
Thus, the relevant provisions of Rep. Acts Nos.
409 and 954 and Ordinance No. 7065 should be
taken together and it should then be clear that the
legislative powers of the Municipal Board should
be understood to be regulatory in nature and that
Republic Act No. 954 should be understood to
refer to congressional franchises, as a necessity
for the operation of jai-alai.
We need not, however, again belabor this issue
further since the task at hand which will
ultimately, and with finality, decide the issues in
this case is to determine whether PD No. 771
validly revoked ADC's franchise to operate the
jai-alai, assuming (without conceding) that it
indeed possessed such franchise under Ordinance
No. 7065.

ADC argues that PD No. 771 is unconstitutional


for being violative of the equal protection and
non-impairment provisions of the Constitution.
On the other hand, the government contends that
PD No. 771 is a valid exercise of the inherent
police power of the State.
The police power has been described as the least
limitable of the inherent powers of the State. It is
based on the ancient doctrine salus populi est
suprema lex (the welfare of the people is the
supreme law.) In the early case of Rubi v.
Provincial Board of Mindoro (39 Phil. 660), this
Court through Mr. Justice George A. Malcolm
stated thus:
The police power of the State . . . is a power coextensive with self-protection, and is not inaptly
termed the "law of overruling necessity." It may
be said to be that inherent and plenary power in
the State which enables it to prohibit all things
hurtful to the comfort, safety and welfare of
society. Carried onward by the current of
legislation, the judiciary rarely attempts to dam
the onrushing power of legislative discretion,
provided the purposes of the law do not go
beyond the great principles that mean security
for the public welfare or do not arbitrarily
interfere with the right of the individual.
In the matter of PD No. 771, the purpose of the
law is clearly stated in the "whereas clause" as
follows:
WHEREAS, it has been reported that in spite of
the current drive of our law enforcement
agencies against vices and illegal gambling,
these social ills are still prevalent in many areas
of the country;
WHEREAS, there is need to consolidate all the
efforts of the government to eradicate and
minimize vices and other forms of social ills in
pursuance of the social and economic
development program under the new society;
WHEREAS, in order to effectively control and
regulate wagers or betting by the public on horse
and dog races, jai-alai and other forms of
gambling there is a necessity to transfer the
issuance of permit and/or franchise from local
government to the National Government.

It cannot be argued that the control and


regulation of gambling do not promote public
morals and welfare. Gambling is essentially
antagonistic and self-reliance. It breeds
indolence and erodes the value of good, honest
and hard work. It is, as very aptly stated by PD
No. 771, a vice and a social ill which
government must minimize (if not eradicate) in
pursuit of social and economic development.
In Magtajas v. Pryce Properties Corporation (20
July 1994, G.R. No. 111097), this Court stated
thru Mr. Justice Isagani A. Cruz:
In the exercise of its own discretion, the
legislative power may prohibit gambling
altogether or allow it without limitation or it may
prohibit some forms of gambling and allow
others for whatever reasons it may consider
sufficient. Thus, it has prohibited jueteng and
monte but permits lotteries, cockfighting and
horse-racing. In making such choices, Congress
has consulted its own wisdom, which this Court
has no authority to review, much less reverse.
Well has it been said that courts do not sit to
resolve the merits of conflicting theories. That is
the prerogative of the political departments. It is
settled that questions regarding wisdom, morality
and practicability of statutes are not addressed to
the judiciary but may be resolved only by the
executive and legislative departments, to which
the function belongs in our scheme of
government. (Emphasis supplied)
Talks regarding the supposed vanishing line
between right and privilege in American
constitutional law has no relevance in the context
of these cases since the reference there is to
economic regulations. On the other hand, jai-alai
is not a mere economic activity which the law
seeks to regulate. It is essentially gambling and
whether it should be permitted and, if so, under
what conditions are questions primarily for the
lawmaking authority to determine, talking into
account national and local interests. Here, it is
the police power of the State that is paramount.
ADC questions the motive for the issuance of PD
Nos. 771. Clearly, however, this Court cannot
look into allegations that PD No. 771 was
enacted to benefit a select group which was later

given authority to operate the jai-alai under PD


No. 810. The examination of legislative
motivation is generally prohibited. (Palmer v.
Thompson, 403 U.S. 217, 29 L. Ed. 2d 438
[1971] per Black, J.) There is, the first place,
absolute lack of evidence to support ADC's
allegation of improper motivation in the
issuance of PD No. 771. In the second place, as
already averred, this Court cannot go behind the
expressed and proclaimed purposes of PD No.
771, which are reasonable and even laudable.
It should also be remembered that PD No. 771
provides that the national government can
subsequently grant franchises "upon proper
application and verification of the qualifications
of the applicant." ADC has not alleged that it
filed an application for a franchise with the
national government subsequent to the enactment
of PD No. 771; thus, the allegations
abovementioned (of preference to a select group)
are based on conjectures, speculations and
imagined biases which do not warrant the
consideration of this Court.
On the other hand, it is noteworthy that while
then president Aquino issued Executive Order
No. 169 revoking PD No. 810 (which granted a
franchise to a Marcos-crony to operate the jaialai), she did not scrap or repeal PD No. 771
which had revoked all franchises to operate jaialais issued by local governments, thereby reaffirming the government policy that franchises
to operate jai-alais are for the national
government (not local governments) to consider
and approve.
On the alleged violation of the non-impairment
and equal protection clauses of the Constitution,
it should be remembered that a franchise is not in
the strict sense a simple contract but rather it is
more importantly, a mere privilege specially in
matters which are within the government's power
to regulate and even prohibit through the
exercise of the police power. Thus, a gambling
franchise is always subject to the exercise of
police power for the public welfare.
In RCPI v. NTC (150 SCRA 450), we held that:
A franchise started out as a "royal privilege or (a)
branch of the King's prerogative, subsisting in

25

the hands of a subject." This definition was given


by Finch, adopted by Blackstone, and accepted
by every authority since . . . Today, a franchise
being merely a privilege emanating from the
sovereign power of the state and owing its
existence to a grant, is subject to regulation by
the state itself by virtue of its police power
through its administrative agencies.
There is a stronger reason for holding ADC's
permit to be a mere privilege because jai-alai,
when played for bets, is pure and simple
gambling. To analogize a gambling franchise for
the operation of a public utility, such as public
transportation company, is to trivialize the great
historic origin of this branch of royal privilege.
As earlier noted, ADC has not alleged ever
applying for a franchise under the provisions of
PD No. 771. and yet, the purpose of PD No. 771
is quite clear from its provisions, i.e., to give to
the national government the exclusive power to
grant gambling franchises. Thus, all franchises
then existing were revoked but were made
subject to reissuance by the national government
upon compliance by the applicant with
government-set qualifications and requirements.
There was no violation by PD No. 771 of the
equal protection clause since the decree revoked
all franchises issued by local governments
without qualification or exception. ADC cannot
allege violation of the equal protection clause
simply because it was the only one affected by
the decree, for as correctly pointed out by the
government, ADC was not singled out when all
jai-alai franchises were revoked. Besides, it is
too late in the day for ADC to seek redress for
alleged violation of its constitutional rights for it
could have raised these issues as early as 1975,
almost twenty 920) years ago.
Finally, we do not agree that Section 3 of PD No.
771 and the requirement of a legislative franchise
in Republic Act No. 954 are "riders" to the two
92) laws and are violative of the rule that laws
should embrace one subject which shall be
expressed in the title, as argued by ADC. In
Cordero v. Cabatuando (6 SCRA 418), this
Court ruled that the requirement under the
constitution that all laws should embrace only

one subject which shall be expressed in the title


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

THE PHILIPPINE JUDGES ASSOCIATION,


duly rep. by its President, BERNARDO P.
ABESAMIS, Vice-President for Legal Affairs,
MARIANO M. UMALI, Director for Pasig,
Makati, and Pasay, Metro Manila, ALFREDO
C. FLORES, and Chairman of the Committee
on Legal Aid, JESUS G. BERSAMIRA,
Presiding Judges of the Regional Trial Court,
Branch 85, Quezon City and Branches 160,
167 and 166, Pasig, Metro Manila,
respectively:
the
NATIONAL
CONFEDERATION OF THE JUDGES
ASSOCIATION OF THE PHILIPPINES,
composed of the METROPOLITAN TRIAL
COURT JUDGES ASSOCIATION rep. by its
President. REINATO QUILALA of the
MUNICIPAL TRIAL CIRCUIT COURT,
Manila;
THE
MUNICIPAL JUDGES
LEAGUE OF THE PHILIPPINES rep. by its
President, TOMAS G. TALAVERA; by
themselves and in behalf of all the Judges of
the Regional Trial and Shari'a Courts,
Metropolitan Trial Courts and Municipal
Courts throughout the Country, petitioners,
vs.
HON. PETE PRADO, in his capacity as
Secretary
of
the
Department
of
Transportation
and
Communications,
JORGE V. SARMIENTO, in his capacity as
Postmaster General, and the PHILIPPINE
POSTAL CORP., respondents.
CRUZ, J.:
The basic issue raised in this petition is the
independence of the Judiciary. It is asserted by
the petitioners that this hallmark of
republicanism is impaired by the statute and
circular they are here challenging. The Supreme
Court is itself affected by these measures and is
thus an interested party that should ordinarily not
also be a judge at the same time. Under our
system of government, however, it cannot inhibit
itself and must rule upon the challenge, because
no other office has the authority to do so. We
shall therefore act upon this matter not with
officiousness but in the discharge of an

unavoidable duty and, as always, with


detachment and fairness.
The main target of this petition is Section 35 of
R.A. No. 7354 as implemented by the Philippine
Postal Corporation through its Circular No.
92-28. These measures withdraw the franking
privilege from the Supreme Court, the Court of
Appeals, the Regional Trial Courts, the
Metropolitan Trial Courts, the Municipal Trial
Courts, and the Land Registration Commission
and its Registers of Deeds, along with certain
other government offices.
The petitioners are members of the lower courts
who feel that their official functions as judges
will be prejudiced by the above-named measures.
The National Land Registration Authority has
taken common cause with them insofar as its
own activities, such as sending of requisite
notices in registration cases, affect judicial
proceedings. On its motion, it has been allowed
to intervene.
The petition assails the constitutionality of R.A.
No. 7354 on the grounds that: (1) its title
embraces more than one subject and does not
express its purposes; (2) it did not pass the
required readings in both Houses of Congress
and printed copies of the bill in its final form
were not distributed among the members before
its passage; and (3) it is discriminatory and
encroaches on the independence of the Judiciary.
We approach these issues with one important
principle in mind, to wit, the presumption of the
constitutionality of statutes. The theory is that as
the joint act of the Legislature and the Executive,
every statute is supposed to have first been
carefully studied and determined to be
constitutional before it was finally enacted.
Hence, unless it is clearly shown that it is
constitutionally flawed, the attack against its
validity must be rejected and the law itself
upheld. To doubt is to sustain.
I
We consider first the objection based on Article
VI, Sec. 26(l), of the Constitution providing that
"Every bill passed by the Congress shall embrace
only one subject which shall be expressed in the
title thereof."

26

The purposes of this rule are: (1) to prevent


hodge-podge or "log-rolling" legislation; (2) to
prevent surprise or fraud upon the legislature by
means of provisions in bills of which the title
gives no intimation, and which might therefore
be overlooked and carelessly and unintentionally
adopted; and (3) to fairly apprise the people,
through such publication of legislative
proceedings as is usually made, of the subject of
legislation that is being considered, in order that
they may have opportunity of being heard
thereon, by petition or otherwise, if they shall so
desire. 1
It is the submission of the petitioners that Section
35 of R.A. No. 7354 which withdrew the
franking privilege from the Judiciary is not
expressed in the title of the law, nor does it
reflect its purposes.
R.A. No. 7354 is entitled "An Act Creating the
Philippine Postal Corporation, Defining its
Powers,
Functions
and
Responsibilities,
Providing for Regulation of the Industry and for
Other Purposes Connected Therewith."
The objectives of the law are enumerated in
Section 3, which provides:
The State shall pursue the following objectives
of a nationwide postal system:
a) to enable the economical and speedy transfer
of mail and other postal matters, from sender to
addressee, with full recognition of their privacy
or confidentiality;
b) to promote international interchange,
cooperation and understanding through the
unhampered flow or exchange of postal matters
between nations;
c) to cause or effect a wide range of postal
services to cater to different users and changing
needs, including but not limited to, philately,
transfer of monies and valuables, and the like;
d) to ensure that sufficient revenues are
generated by and within the industry to finance
the overall cost of providing the varied range of
postal delivery and messengerial services as well
as the expansion and continuous upgrading of
service standards by the same.
Sec. 35 of R.A. No. 7354, which is the principal
target of the petition, reads as follows:

Sec. 35. Repealing Clause. All acts, decrees,


orders, executive orders, instructions, rules and
regulations or parts thereof inconsistent with the
provisions of this Act are repealed or modified
accordingly.
All franking privileges authorized by law are
hereby repealed, except those provided for under
Commonwealth Act No. 265, Republic Acts
Numbered 69, 180, 1414, 2087 and 5059. The
Corporation may continue the franking privilege
under Circular No. 35 dated October 24, 1977
and that of the Vice President, under such
arrangements and conditions as may obviate
abuse or unauthorized use thereof.
The petitioners' contention is untenable. We do
not agree that the title of the challenged act
violates the Constitution.
The title of the bill is not required to be an index
to the body of the act, or to be as comprehensive
as to cover every single detail of the measure. It
has been held that if the title fairly indicates the
general subject, and reasonably covers all the
provisions of the act, and is not calculated to
mislead the legislature or the people, there is
sufficient compliance with the constitutional
requirement. 2
To require every end and means necessary for
the accomplishment of the general objectives of
the statute to be expressed in its title would not
only be unreasonable but would actually render
legislation impossible. 3 As has been correctly
explained:
The details of a legislative act need not be
specifically stated in its title, but matter germane
to the subject as expressed in the title, and
adopted to the accomplishment of the object in
view, may properly be included in the act. Thus,
it is proper to create in the same act the
machinery by which the act is to be enforced, to
prescribe the penalties for its infraction, and to
remove obstacles in the way of its execution. If
such matters are properly connected with the
subject as expressed in the title, it is unnecessary
that they should also have special mention in the
title (Southern Pac. Co. v. Bartine, 170 Fed.
725).

This is particularly true of the repealing clause,


on which Cooley writes: "The repeal of a statute
on a given subject is properly connected with the
subject matter of a new statute on the same
subject; and therefore a repealing section in the
new statute is valid, notwithstanding that the title
is silent on the subject. It would be difficult to
conceive of a matter more germane to an act and
to the object to be accomplished thereby than the
repeal of previous legislations connected
therewith." 4
The reason is that where a statute repeals a
former law, such repeal is the effect and not the
subject of the statute; and it is the subject, not the
effect of a law, which is required to be briefly
expressed in its title. 5 As observed in one case, 6
if the title of an act embraces only one subject,
we apprehend it was never claimed that every
other act which repeals it or alters by implication
must be mentioned in the title of the new act.
Any such rule would be neither within the reason
of the Constitution, nor practicable.
We are convinced that the withdrawal of the
franking privilege from some agencies is
germane to the accomplishment of the principal
objective of R.A. No. 7354, which is the creation
of a more efficient and effective postal service
system. Our ruling is that, by virtue of its nature
as a repealing clause, Section 35 did not have to
be expressly included in the title of the said law.
II
The petitioners maintain that the second
paragraph of Sec. 35 covering the repeal of the
franking privilege from the petitioners and this
Court under E.O. 207, PD 1882 and PD 26 was
not included in the original version of Senate Bill
No. 720 or House Bill No. 4200. As this
paragraph appeared only in the Conference
Committee Report, its addition, violates Article
VI, Sec. 26(2) of the Constitution, reading as
follows:
(2) No bill passed by either House shall become
a law unless it has passed three readings on
separate days, and printed copies thereof in its
final form have been distributed to its Members
three days before its passage, except when the
President certifies to the necessity of its

immediate enactment to meet a public calamity


or emergency. Upon the last reading of a bill, no
amendment thereto shall be allowed, and the
vote thereon shall be taken immediately
thereafter, and the yeas and nays entered in the
Journal.
The petitioners also invoke Sec. 74 of the Rules
of the House of Representatives, requiring that
amendment to any bill when the House and the
Senate shall have differences thereon may be
settled by a conference committee of both
chambers. They stress that Sec. 35 was never a
subject of any disagreement between both
Houses and so the second paragraph could not
have been validly added as an amendment.
These argument are unacceptable.
While it is true that a conference committee is
the mechanism for compromising differences
between the Senate and the House, it is not
limited in its jurisdiction to this question. Its
broader function is described thus:
A conference committee may, deal generally
with the subject matter or it may be limited to
resolving the precise differences between the two
houses. Even where the conference committee is
not by rule limited in its jurisdiction, legislative
custom severely limits the freedom with which
new subject matter can be inserted into the
conference bill. But occasionally a conference
committee produces unexpected results, results
beyond its mandate, These excursions occur even
where the rules impose strict limitations on
conference committee jurisdiction. This is
symptomatic of the authoritarian power of
conference committee (Davies, Legislative Law
and Process: In a Nutshell, 1986 Ed., p.81).
It is a matter of record that the conference
Committee Report on the bill in question was
returned to and duly approved by both the Senate
and the House of Representatives. Thereafter, the
bill was enrolled with its certification by Senate
President Neptali A. Gonzales and Speaker
Ramon V. Mitra of the House of Representatives
as having been duly passed by both Houses of
Congress. It was then presented to and approved
by President Corazon C. Aquino on April 3,
1992.

27

Under the doctrine of separation powers, the


Court may not inquire beyond the certification of
the approval of a bill from the presiding officers
of Congress. Casco Philippine Chemical Co. v.
Gimenez 7 laid down the rule that the enrolled
bill, is conclusive upon the Judiciary (except in
matters that have to be entered in the journals
like the yeas and nays on the final reading of the
bill). 8 The journals are themselves also binding
on the Supreme Court, as we held in the old (but
still valid) case of U.S. vs. Pons, 9 where we
explained the reason thus:
To inquire into the veracity of the journals of the
Philippine legislature when they are, as we have
said, clear and explicit, would be to violate both
the, letter and spirit of the organic laws by which
the Philippine Government was brought into
existence, to invade a coordinate and
independent department of the Government, and
to interfere with the legitimate powers and
functions, of the Legislature.
Applying these principles, we shall decline to
look into the petitioners' charges that an
amendment was made upon the last reading of
the bill that eventually became R.A. No. 7354
and that copies thereof in its final form were not
distributed among the members of each House.
Both the enrolled bill and the legislative journals
certify that the measure was duly enacted i.e., in
accordance with Article VI, Sec. 26(2) of the
Constitution. We are bound by such official
assurances from a coordinate department of the
government, to which we owe, at the very least,
a becoming courtesy.
III
The third and most serious challenge of the
petitioners is based on the equal protection
clause.
It is alleged that R.A. No. 7354 is discriminatory
because while withdrawing the franking
privilege from the Judiciary, it retains the same
for the President of the Philippines, the Vice
President of the Philippines; Senators and
Members of the House of Representatives, the
Commission on Elections; former Presidents of
the Philippines; the National Census and
Statistics Office; and the general public in the

filing of complaints against public offices and


officers. 10
The respondents counter that there is no
discrimination because the law is based on a
valid classification in accordance with the equal
protection clause. In fact, the franking privilege
has been withdrawn not only from the Judiciary
but also the Office of Adult Education, the
Institute
of
National
Language;
the
Telecommunications Office; the Philippine
Deposit Insurance Corporation; the National
Historical Commission; the Armed Forces of the
Philippines; the Armed Forces of the Philippines
Ladies Steering Committee; the City and
Provincial Prosecutors; the Tanodbayan (Office
of Special Prosecutor); the Kabataang Barangay;
the Commission on the Filipino Language; the
Provincial and City Assessors; and the National
Council for the Welfare of Disabled Persons. 11
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 nonetheless been
embodied in a separate clause in Article III Sec.
1., of the Constitution 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.
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, 12 Similar subjects, in other words,
should not be treated differently, so as to give
undue favor to some and unjustly discriminate
against others.
The equal protection clause does not require the
universal application of the laws on all persons
or things without distinction. This might in fact
sometimes result in unequal protection, as where,
for example, a law prohibiting mature books to
all persons, regardless of age, would benefit the
morals of the youth but violate the liberty of

adults. What the clause requires is equality


among equals as determined according to a valid
classification. By classification is meant the
grouping of persons or things similar to each
other in certain particulars and different from all
others in these same particulars. 13
What is the reason for the grant of the franking
privilege in the first place? Is the franking
privilege extended to the President of the
Philippines or the Commission on Elections or to
former Presidents of the Philippines purely as a
courtesy from the lawmaking body? Is it offered
because of the importance or status of the
grantee or because of its need for the privilege?
Or have the grantees been chosen pell-mell, as it
were, without any basis at all for the selection?
We reject outright the last conjecture as there is
no doubt that the statute as a whole was carefully
deliberated upon, by the political departments
before it was finally enacted. There is reason to
suspect, however, that not enough care or
attention was given to its repealing clause,
resulting in the unwitting withdrawal of the
franking privilege from the Judiciary.
We also do not believe that the basis of the
classification was mere courtesy, for it is
unimaginable that the political departments
would have intended this serious slight to the
Judiciary as the third of the major and equal
departments the government. The same
observations are made if the importance or status
of the grantee was the criterion used for the
extension of the franking privilege, which is
enjoyed by the National Census and Statistics
Office and even some private individuals but not
the courts of justice.
In our view, the only acceptable reason for the
grant of the franking privilege was the perceived
need of the grantee for the accommodation,
which would justify a waiver of substantial
revenue by the Corporation in the interest of
providing for a smoother flow of communication
between the government and the people.
Assuming that basis, we cannot understand why,
of all the departments of the government, it is the
Judiciary, that has been denied the franking
privilege. There is no question that if there is any

major branch of the government that needs the


privilege, it is the Judicial Department, as the
respondents themselves point out. Curiously, the
respondents would justify the distinction on the
basis precisely of this need and, on this basis,
deny the Judiciary the franking privilege while
extending it to others less deserving.
In their Comment, the respondents point out that
available data from the Postal Service Office
show that from January 1988 to June 1992, the
total volume of frank mails amounted to
P90,424,175.00. Of this amount, frank mails
from the Judiciary and other agencies whose
functions include the service of judicial
processes, such as the intervenor, the Department
of Justice and the Office of the Ombudsman,
amounted to P86,481,759. Frank mails coming
fromthe Judiciary amounted to P73,574,864.00,
and those coming from the petitioners reached
the total amount of P60,991,431.00. The
respondents' conclusion is that because of this
considerable volume of mail from the Judiciary,
the franking privilege must be withdrawn from
it.
The argument is self-defeating. The respondents
are in effect saying that the franking privilege
should be extended only to those who do not
need it very much, if at all, (like the widows of
former Presidents) but not to those who need it
badly (especially the courts of justice). It is like
saying that a person may be allowed cosmetic
surgery although it is not really necessary but not
an operation that can save his life.
If the problem of the respondents is the loss of
revenues from the franking privilege, the
remedy, it seems to us, is to withdraw it
altogether from all agencies of government,
including those who do not need it. The problem
is not solved by retaining it for some and
withdrawing it from others, especially where
there is no substantial distinction between those
favored, which may or may not need it at all, and
the Judiciary, which definitely needs it. The
problem is not solved by violating the
Constitution.
In lumping the Judiciary with the other offices
from which the franking privilege has been

28

withdrawn, Section 35 has placed the courts of


justice in a category to which it does not belong.
If it recognizes the need of the President of the
Philippines and the members of Congress for the
franking privilege, there is no reason why it
should not recognize a similar and in fact greater
need on the part of the Judiciary for such
privilege. While we may appreciate the
withdrawal of the franking privilege from the
Armed Forces of the Philippines Ladies Steering
Committee, we fail to understand why the
Supreme Court should be similarly treated as
that Committee. And while we may concede the
need of the National Census and Statistics Office
for the franking privilege, we are intrigued that a
similar if not greater need is not recognized in
the courts of justice.
(On second thought, there does not seem to be
any justifiable need for withdrawing the
privilege from the Armed Forces of the
Philippines Ladies Steering Committee, which,
like former Presidents of the Philippines or their
widows, does not send as much frank mail as the
Judiciary.)
It is worth observing that the Philippine Postal
Corporation, as a government-controlled
corporation, was created and is expected to
operate for the purpose of promoting the public
service. While it may have been established
primarily for private gain, it cannot excuse itself
from performing certain functions for the benefit
of the public in exchange for the franchise
extended to it by the government and the many
advantages it enjoys under its charter. 14 Among
the services it should be prepared to extend is
free carriage of mail for certain offices of the
government that need the franking privilege in
the discharge of their own public functions.
We also note that under Section 9 of the law, the
Corporation is capitalized at P10 billion pesos,
55% of which is supplied by the Government,
and that it derives substantial revenues from the
sources enumerated in Section 10, on top of the
exemptions it enjoys. It is not likely that the
retention of the franking privilege of the
Judiciary will cripple the Corporation.

At this time when the Judiciary is being faulted


for the delay in the administration of justice, the
withdrawal from it of the franking privilege can
only further deepen this serious problem. The
volume of judicial mail, as emphasized by the
respondents themselves, should stress the
dependence of the courts of justice on the postal
service for communicating with lawyers and
litigants as part of the judicial process. The
Judiciary has the lowest appropriation in the
national budget compared to the Legislative and
Executive Departments; of the P309 billion
budgeted for 1993, only .84%, or less than 1%, is
alloted for the judiciary. It should not be hard to
imagine the increased difficulties of our courts if
they have to affix a purchased stamp to every
process they send in the discharge of their
judicial functions.
We are unable to agree with the respondents that
Section 35 of R.A. No. 7354 represents a valid
exercise of discretion by the Legislature under
the police power. On the contrary, we find its
repealing clause to be a discriminatory provision
that denies the Judiciary the equal protection of
the laws guaranteed for all persons or things
similarly situated. The distinction made by the
law is superficial. It is not based on substantial
distinctions that make real differences between
the Judiciary and the grantees of the franking
privilege.
This is not a question of wisdom or power into
which the Judiciary may not intrude. It is a
matter of arbitrariness that this Court has the
duty and power to correct.
IV
In sum, we sustain R.A. No. 7354 against the
attack that its subject is not expressed in its title
and that it was not passed in accordance with the
prescribed procedure. However, we annul
Section 35 of the law as violative of Article 3,
Sec. 1, of the Constitution providing that no
person shall "be deprived of the equal protection
of laws."
We arrive at these conclusions with a full
awareness of the criticism it is certain to
provoke. While ruling against the discrimination
in this case, we may ourselves be accused of

similar discrimination through the exercise of


our ultimate power in our own favor. This is
inevitable. Criticism of judicial conduct,
however undeserved, is a fact of life in the
political system that we are prepared to accept..
As judges, we cannot debate with our detractors.
We can only decide the cases before us as law
imposes on us the duty to be fair and our own
conscience gives us the light to be right.
ACCORDINGLY, the petition is partially
GRANTED and Section 35 of R.A. No. 7354 is
declared UNCONSTITUTIONAL. Circular No.
92-28 is SET ASIDE insofar as it withdraws the
franking privilege from the Supreme Court, the
Court of Appeals, the Regional trail Courts, the
Municipal trial Courts, and the National Land
Registration Authority and its Register of Deeds
to all of which offices the said privilege shall be
RESTORED. The temporary restraining order
dated June 2, 1992, is made permanent.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin,
Regalado, Davide, Jr., Romero, Nocon, Melo,
Quiason, Puno and Vitug, JJ., concur.
Bellosillo, J., is on leave.
ANTERO M. SISON, JR., petitioner,
vs.
RUBEN B. ANCHETA, Acting Commissioner,
Bureau of Internal Revenue; ROMULO
VILLA, Deputy Commissioner, Bureau of
Internal Revenue; TOMAS TOLEDO Deputy
Commissioner, Bureau of Internal Revenue;
MANUEL ALBA, Minister of Budget,
FRANCISCO
TANTUICO,
Chairman,
Commissioner on Audit, and CESAR E. A.
VIRATA, Minister of Finance, respondents.
Antero Sison for petitioner and for his own
behalf.
The Solicitor General for respondents.
FERNANDO, C.J.:
The success of the challenge posed in this suit
for declaratory relief or prohibition proceeding 1
on the validity of Section I of Batas Pambansa
Blg. 135 depends upon a showing of its

constitutional infirmity. The assailed provision


further amends Section 21 of the National
Internal Revenue Code of 1977, which provides
for rates of tax on citizens or residents on (a)
taxable compensation income, (b) taxable net
income, (c) royalties, prizes, and other winnings,
(d) interest from bank deposits and yield or any
other monetary benefit from deposit substitutes
and from trust fund and similar arrangements, (e)
dividends and share of individual partner in the
net profits of taxable partnership, (f) adjusted
gross income. 2 Petitioner 3 as taxpayer alleges
that by virtue thereof, "he would be unduly
discriminated against by the imposition of higher
rates of tax upon his income arising from the
exercise of his profession vis-a-vis those which
are imposed upon fixed income or salaried
individual taxpayers. 4 He characterizes the
above sction as arbitrary amounting to class
legislation, oppressive and capricious in
character 5 For petitioner, therefore, there is a
transgression of both the equal protection and
due process clauses 6 of the Constitution as well
as of the rule requiring uniformity in taxation. 7
The Court, in a resolution of January 26, 1982,
required respondents to file an answer within 10
days from notice. Such an answer, after two
extensions were granted the Office of the
Solicitor General, was filed on May 28, 1982. 8
The facts as alleged were admitted but not the
allegations which to their mind are "mere
arguments, opinions or conclusions on the part of
the petitioner, the truth [for them] being those
stated [in their] Special and Affirmative
Defenses." 9 The answer then affirmed: "Batas
Pambansa Big. 135 is a valid exercise of the
State's power to tax. The authorities and cases
cited while correctly quoted or paraghraph do not
support petitioner's stand." 10 The prayer is for
the dismissal of the petition for lack of merit.
This Court finds such a plea more than justified.
The petition must be dismissed.
1. It is manifest that the field of state activity has
assumed a much wider scope, The reason was so
clearly set forth by retired Chief Justice
Makalintal thus: "The areas which used to be left
to private enterprise and initiative and which the

29

government was called upon to enter optionally,


and only 'because it was better equipped to
administer for the public welfare than is any
private individual or group of individuals,'
continue to lose their well-defined boundaries
and to be absorbed within activities that the
government must undertake in its sovereign
capacity if it is to meet the increasing social
challenges of the times." 11 Hence the need for
more revenues. The power to tax, an inherent
prerogative, has to be availed of to assure the
performance of vital state functions. It is the
source of the bulk of public funds. To praphrase
a recent decision, taxes being the lifeblood of the
government, their prompt and certain availability
is of the essence. 12
2. The power to tax moreover, to borrow from
Justice Malcolm, "is an attribute of sovereignty.
It is the strongest of all the powers of of
government." 13 It is, of course, to be admitted
that for all its plenitude 'the power to tax is not
unconfined. There are restrictions. The
Constitution sets forth such limits . Adversely
affecting as it does properly rights, both the due
process and equal protection clauses inay
properly be invoked, all petitioner does, to
invalidate in appropriate cases a revenue
measure. if it were otherwise, there would -be
truth to the 1803 dictum of Chief Justice
Marshall that "the power to tax involves the
power to destroy." 14 In a separate opinion in
Graves v. New York, 15 Justice Frankfurter, after
referring to it as an 1, unfortunate remark
characterized it as "a flourish of rhetoric
[attributable to] the intellectual fashion of the
times following] a free use of absolutes." 16 This
is merely to emphasize that it is riot and there
cannot be such a constitutional mandate. Justice
Frankfurter could rightfully conclude: "The web
of unreality spun from Marshall's famous dictum
was brushed away by one stroke of Mr. Justice
Holmess pen: 'The power to tax is not the power
to destroy while this Court sits." 17 So it is in the
Philippines.
3. This Court then is left with no choice. The
Constitution as the fundamental law overrides
any legislative or executive, act that runs counter

to it. In any case therefore where it can be


demonstrated that the challenged statutory
provision as petitioner here alleges fails to
abide by its command, then this Court must so
declare and adjudge it null. The injury thus is
centered on the question of whether the
imposition of a higher tax rate on taxable net
income derived from business or profession than
on compensation is constitutionally infirm.
4, The difficulty confronting petitioner is thus
apparent. He alleges arbitrariness. A mere
allegation, as here. does not suffice. There must
be a factual foundation of such unconstitutional
taint. Considering that petitioner here would
condemn such a provision as void or its face, he
has not made out a case. This is merely to adhere
to the authoritative doctrine that were the due
process and equal protection clauses are invoked,
considering that they arc not fixed rules but
rather broad standards, there is a need for of such
persuasive character as would lead to such a
conclusion. Absent such a showing, the
presumption of validity must prevail. 18
5. It is undoubted that the due process clause
may be invoked where a taxing statute is so
arbitrary that it finds no support in the
Constitution. An obvious example is where it can
be shown to amount to the confiscation of
property. That would be a clear abuse of power.
It then becomes the duty of this Court to say that
such an arbitrary act amounted to the exercise of
an authority not conferred. That properly calls
for the application of the Holmes dictum. It has
also been held that where the assailed tax
measure is beyond the jurisdiction of the state, or
is not for a public purpose, or, in case of a
retroactive statute is so harsh and unreasonable,
it is subject to attack on due process grounds. 19
6. Now for equal protection. The applicable
standard to avoid the charge that there is a denial
of this constitutional mandate whether the
assailed act is in the exercise of the lice power or
the power of eminent domain is to demonstrated
that the governmental act assailed, far from
being inspired by the attainment of the common
weal was prompted by the spirit of hostility, or at
the very least, discrimination that finds no

support in reason. It suffices then that the laws


operate equally and uniformly on all persons
under similar circumstances or that all persons
must be treated in the same manner, the
conditions not being different, both in the
privileges conferred and the liabilities imposed.
Favoritism and undue preference cannot be
allowed. For the principle is that equal protection
and security shall be given to every person under
circumtances which if not Identical are
analogous. If law be looked upon in terms of
burden or charges, those that fall within a class
should be treated in the same fashion, whatever
restrictions cast on some in the group equally
binding on the rest." 20 That same formulation
applies as well to taxation measures. The equal
protection clause is, of course, inspired by the
noble concept of approximating the Ideal of the
laws benefits being available to all and the
affairs of men being governed by that serene and
impartial uniformity, which is of the very
essence of the Idea of law. There is, however,
wisdom, as well as realism in these words of
Justice Frankfurter: "The equality at which the
'equal protection' clause aims is not a
disembodied
equality.
The
Fourteenth
Amendment enjoins 'the equal protection of the
laws,' and laws are not abstract propositions.
They do not relate to abstract units A, B and C,
but are expressions of policy arising out of
specific difficulties, address to the attainment of
specific ends by the use of specific remedies.
The Constitution does not require things which
are different in fact or opinion to be treated in
law as though they were the same." 21 Hence the
constant reiteration of the view that classification
if rational in character is allowable. As a matter
of fact, in a leading case of Lutz V. Araneta, 22
this Court, through Justice J.B.L. Reyes, went so
far as to hold "at any rate, it is inherent in the
power to tax that a state be free to select the
subjects of taxation, and it has been repeatedly
held that 'inequalities which result from a
singling out of one particular class for taxation,
or exemption infringe no constitutional
limitation.'" 23

7. Petitioner likewise invoked the kindred


concept of uniformity. According to the
Constitution: "The rule of taxation shag be
uniform and equitable." 24 This requirement is
met according to Justice Laurel in Philippine
Trust Company v. Yatco, 25 decided in 1940, when
the tax "operates with the same force and effect
in every place where the subject may be found. "
26
He likewise added: "The rule of uniformity
does not call for perfect uniformity or perfect
equality, because this is hardly attainable." 27 The
problem of classification did not present itself in
that case. It did not arise until nine years later,
when the Supreme Court held: "Equality and
uniformity in taxation means that all taxable
articles or kinds of property of the same class
shall be taxed at the same rate. The taxing power
has the authority to make reasonable and natural
classifications for purposes of taxation, ... . 28 As
clarified by Justice Tuason, where "the
differentiation" complained of "conforms to the
practical dictates of justice and equity" it "is not
discriminatory within the meaning of this clause
and is therefore uniform." 29 There is quite a
similarity then to the standard of equal protection
for all that is required is that the tax "applies
equally to all persons, firms and corporations
placed in similar situation." 30
8. Further on this point. Apparently, what misled
petitioner is his failure to take into consideration
the distinction between a tax rate and a tax base.
There is no legal objection to a broader tax base
or taxable income by eliminating all deductible
items and at the same time reducing the
applicable tax rate. Taxpayers may be classified
into different categories. To repeat, it. is enough
that the classification must rest upon substantial
distinctions that make real differences. In the
case of the gross income taxation embodied in
Batas Pambansa Blg. 135, the, discernible basis
of classification is the susceptibility of the
income to the application of generalized rules
removing all deductible items for all taxpayers
within the class and fixing a set of reduced tax
rates to be applied to all of them. Taxpayers who
are recipients of compensation income are set
apart as a class. As there is practically no

30

overhead expense, these taxpayers are e not


entitled to make deductions for income tax
purposes because they are in the same situation
more or less. On the other hand, in the case of
professionals in the practice of their calling and
businessmen, there is no uniformity in the costs
or expenses necessary to produce their income. It
would not be just then to disregard the disparities
by giving all of them zero deduction and
indiscriminately impose on all alike the same tax
rates on the basis of gross income. There is
ample justification then for the Batasang
Pambansa to adopt the gross system of income
taxation to compensation income, while
continuing the system of net income taxation as
regards professional and business income.
9. Nothing can be clearer, therefore, than that the
petition is without merit, considering the (1) lack
of factual foundation to show the arbitrary
character of the assailed provision; 31 (2) the
force of controlling doctrines on due process,
equal protection, and uniformity in taxation and
(3) the reasonableness of the distinction between
compensation and taxable net income of
professionals and businessman certainly not a
suspect classification,
WHEREFORE, the petition is dismissed. Costs
against petitioner.
Makasiar, Concepcion, Jr., Guerero, MelencioHerrera, Escolin, Relova, Gutierrez, Jr., De la
Fuente and Cuevas, JJ., concur.
Teehankee, J., concurs in the result.
Plana, J., took no part.
CONRADO
L.
TIU,
JUAN
T.
MONTELIBANO JR. and ISAGANI M.
JUNGCO,
petitioners,
vs.
COURT OF APPEALS, HON. TEOFISTO T.
GUINGONA JR., BASES CONVERSION
AND
DEVELOPMENT
AUTHORITY,
SUBIC
BAY
METROPOLITAN
AUTHORITY, BUREAU OF INTERNAL
REVENUE,
CITY
TREASURER
OF
OLONGAPO
and
MUNICIPAL
TREASURER OF SUBIC, ZAMBALES,
respondents.

PANGANIBAN, J.:
The constituttional rights to equal protection of
the law is not violated by an executive order,
issued pursuant to law, granting tax and duty
incentives only to the bussiness and residents
within the "secured area" of the Subic Special
Econimic Zone and denying them to those who
live within the Zone but outside such "fenced-in"
territory. The Constitution does not require
absolute equality among residents. It is enough
that all persons under like circumstances or
conditions are given the same privileges and
required to follow the same obligations. In short,
a classification based on valid and reasonable
standards does not violate the equal protection
clause.
The Case
Before us is a petition for review under Rule 45
of the Rules of Court, seeking the reversal of the
Court of Appeals' Decision 1 promulgated on
August 29, 1996, and Resolution 2 dated
November 13, 1996, in CA-GR SP No. 37788. 3
The
challenged
Decision
upheld
the
constitutionality and validity of Executive Order
No. 97-A (EO 97-A), according to which the
grant and enjoyment of the tax and duty
incentives authorized under Republic Act No.
7227 (RA 7227) were limited to the business
enterprises and residents within the fenced-in
area of the Subic Special Economic Zone
(SSEZ).
The assailed Resolution denied the petitioners'
motion for reconsideration.
On March 13, 1992, Congress, with the approval
of the President, passed into law RA 7227
entitled "An Act Accelerating the Conversion of
Military Reservations Into Other Productive
Uses, Creating the Bases Conversion and
Development Authority for this Purpose,
Providing Funds Therefor and for Other
Purposes." Section 12 thereof created the Subic
Special Economic Zone and granted there to
special privileges, as follows:
Sec. 12. Subic Special Economic Zone.
Subject to the concurrence by resolution of the
sangguniang panlungsod of the City of

Olongapo and the sangguniang bayan of the


Municipalities of Subic, Morong and Hermosa,
there is hereby created a Special Economic and
Free-port Zone consisting of the City of
Olongapo and the Municipality of Subic,
Province of Zambales, the lands occupied by the
Subic Naval Base and its contiguous extensions
as embraced, covered, and defined by the 1947
Military Bases Agreement between the
Philippines and the United States of America as
amended, and within the territorial jurisdiction of
the Municipalities of Morong and Hermosa,
Province of Bataan, hereinafter referred to as the
Subic Special Economic Zone whose metes and
bounds shall be delineated in a proclamation to
be issued by the President of the Philippines.
Within thirty (30) days after the approval of this
Act, each local government unit shall submit its
resolution of concurrence to join the Subic
Special Economic Zone to the Office of the
President. Thereafter, the President of the
Philippines shall issue a proclamation defining
the metes and bounds of the zone as provided
herein.
The abovementioned zone shall be subject to the
following policies:
(a) Within the framework and subject to the
mandate and limitations of the Constitution and
the pertinent provisions of the Local Government
Code, the Subic Special Economic Zone shall be
developed into a self-sustaining, industrial,
commercial, financial and investment center to
generate employment opportunities in and
around the zone and to attract and promote
productive foreign investments;
(b) The Subic Special Economic Zone shall be
operated and managed as a separate customs
territory ensuring free flow or movement of
goods and capital within, into and exported out
of the Subic Special Economic Zone, as well as
provide incentives such as tax and duty-free
importations of raw materials, capital and
equipment. However, exportation or removal of
goods from the territory of the Subic Special
Economic Zone to the other parts of the
Philippine territory shall be subject to customs
duties and taxes under the Customs and Tariff

Code and other relevant tax laws of the


Philippines;
(c) The provision of existing laws, rules and
regulations to the contrary notwithstanding, no
taxes, local and national, shall be imposed within
the Subic Special Economic Zone. In lieu of
paying taxes, three percent (3%) of the gross
income earned by all businesses and enterprises
within the Subic Special Economic Zone shall be
remitted to the National Government, one
percent (1%) each to the local government units
affected by the declaration of the zone in
proportion to their population area, and other
factors. In addition, there is hereby established a
development fund of one percent (1%) of the
gross income earned by all businesses and
enterprises within the Subic Special Economic
Zone to be utilized for the development of
municipalities outside the City of Olongapo and
the Municipality of Subic, and other
municipalities contiguous to the base areas.
In case of conflict between national and local
laws with respect to tax exemption privileges in
the Subic Special Economic Zone, the same shall
be resolved in favor of the latter;
(d) No exchange control policy shall be applied
and free markets for foreign exchange, gold,
securities and future shall be allowed and
maintained in the Subic Special Economic Zone;
(e) The Central Bank, through the Monetary
Board, shall supervise and regulate the
operations of banks and other financial
institutions within the Subic Special Economic
Zone;
(f) Banking and finance shall be liberalized with
the establishment of foreign currency depository
units of local commercial banks and offshore
banking units of foreign banks with minimum
Central Bank regulation;
(g) Any investor within the Subic Special
Economic Zone whose continuing investment
shall not be less than two hundred fifty thousand
dollars ($250,000), his/her spouse and dependent
children under twenty-one (21) years of age,
shall be granted permanent resident status within
the Subic Special Economic Zone. They shall
have the freedom of ingress and egress to and

31

from the Subic Special Economic Zone without


any need of special authorization form the
Bureau of Immigration and Deportation. The
Subic Bay Metropolitan Authority referred to in
Section 13 of this Act may also issue working
visas renewable every two (2) years to foreign
executives and other aliens possessing highly
technical skills which no Filipino within the
Subic Special Economic Zone possesses, as
certified by the Department of Labor and
Employment. The names of aliens granted
permanent residence status and working visas by
the Subic Bay Metropolitan Authority shall be
reported to the Bureau of Immigration and
Deportation within thirty (30) days after issuance
thereof;
(h) The defense of the zone and the security of
its perimeters shall be the responsibility of the
National Government in coordination with the
Subic Bay Metropolitan Authority. The Subic
Bay Metropolitan Authority shall provide and
establish its own security and fire-fighting
forces; and
(i) Except as herein provided, the local
government units comprising the Subic Special
Economic Zone shall retain their basic autonomy
and identity. The cities shall be governed by their
respective charters and the municipalities shall
operate and function in accordance with
Republic Act No. 7160, otherwise known as the
Local Government Code of 1991.
On June 10, 1993, then President Fidel V. Ramos
issued Executive Order No. 97 (EO 97),
clarifying the application of the tax and duty
incentives thus:
Sec. 1. On Import Taxes and Duties. Tax and
duty-free importations shall apply only to raw
materials, capital goods and equipment brought
in by business enterprises into the SSEZ. Except
for these items, importations of other goods into
the SSEZ, whether by business enterprises or
resident individuals, are subject to taxes and
duties under relevant Philippine laws.
The exportation or removal of tax and duty-free
goods from the territory of the SSEZ to other
parts of the Philippine territory shall be subject

to duties and taxes under relevant Philippine


laws.
Sec. 2. On All Other Taxes. In lieu of all local
and national taxes (except import taxes and
duties), all business enterprises in the SSEZ shall
be required to pay the tax specified in Section
12(c) of R.A. No. 7227.
Nine days after, on June 19, 1993, the President
issued Executive Order No. 97-A (EO 97-A),
specifying the area within which the tax-andduty-free privilege was operative, viz.:
Sec. 1.1. The Secured Area consisting of the
presently fenced-in former Subic Naval Base
shall be the only completely tax and duty-free
area in the SSEFPZ [Subic Special Economic
and Free Port Zone]. Business enterprises and
individuals (Filipinos and foreigners) residing
within the Secured Area are free to import raw
materials, capital goods, equipment, and
consumer items tax and duty-free. Consumption
items, however, must be consumed within the
Secured Area. Removal of raw materials, capital
goods, equipment and consumer items out of the
Secured Area for sale to non-SSEFPZ registered
enterprises shall be subject to the usual taxes and
duties, except as may be provided herein.
On October 26, 1994, the petitioners challenged
before this Court the constitutionality of EO 97A for allegedly being violative of their right to
equal protection of the laws. In a Resolution
dated June 27, 1995, this Court referred the
matter to the Court of Appeals, pursuant to
Revised Administrative Circular No. 1-95.
Incidentally, on February 1, 1995, Proclamation
No. 532 was issued by President Ramos. It
delineated the exact metes and bounds of the
Subic Special Economic and Free Port Zone,
pursuant to Section 12 of RA 7227.
Ruling of the Court of Appeals
Respondent Court held that "there is no
substantial difference between the provisions of
EO 97-A and Section 12 of RA 7227. In both, the
'Secured Area' is precise and well-defined as '. . .
the lands occupied by the Subic Naval Base and
its contiguous extensions as embraced, covered
and defined by the 1947 Military Bases
Agreement between the Philippines and the

United States of America, as amended . . .'" The


appellate court concluded that such being the
case, petitioners could not claim that EO 97-A is
unconstitutional, while at the same time
maintaining the validity of RA 7227.
The court a quo also explained that the intention
of Congress was to confine the coverage of the
SSEZ to the "secured area" and not to include the
"entire Olongapo City and other areas mentioned
in Section 12 of the law." It relied on the
following deliberarions in the Senate:
Senator Paterno. Thank you, Mr. President. My
first question is the extent of the economic zone.
Since this will be a free port, in effect, I believe
that it is important to delineate or make sure that
the delineation will be quite precise[. M]y
question is: Is it the intention that the entire of
Olongapo City, the Municipality of Subic and the
Municipality of Dinalupihan will be covered by
the special economic zone or only portions
thereof?
Senator Shahani. Only portions, Mr. President. In
other words, where the actual operations of the
free port will take place.
Senator Paterno. I see. So, we should say,
"COVERING THE DESIGNATED PORTIONS
OR CERTAIN PORTIONS OF OLONGAPO
CITY, SUBIC AND DINALUPIHAN" to make
it clear that it is not supposed to cover the entire
area of all of these territories.
Senator Shahani. So, the Gentleman is proposing
that the words "CERTAIN AREAS". . .
The President. The Chair would want to invite
the attention of the Sponsor and Senator Paterno
to letter "C," which says: "THE PRESIDENT OF
THE
PHILIPPINES
IS
HEREBY
AUTHORIZED TO PROCLAIM, DELINEATE
AND SPECIFY THE METES AND BOUNDS
OF OTHER SPECIAL ECONOMIC ZONES
WHICH MAY BE CREATED IN THE CLARK
MILITARY RESERVATIONS AND ITS
EXTENSIONS."
Probably, this provision can be expanded since,
apparently, the intention is that what is referred
to in Olongapo as Metro Olongapo is not by
itself ipso jure already a special economic zone.
Senator Paterno. That is correct.

The President. Someone, some authority must


declare which portions of the same shall be the
economic zone. Is it the intention of the author
that it is the President of the Philippines who will
make such delineation?
Senator Shahani. Yes Mr. President.
The Court of Appeals further justified the limited
application of the tax incentives as being within
the prerogative of the legislature, pursuant to its
"avowed purpose [of serving] some public
benefit or interest." It ruled that "EO 97-A
merely implements the legislative purpose of
[RA 7227]."
Disagreeing, petitioners now seek before us a
review of the aforecited Court of Appeals
Decision and Resolution.
The Issue
Petitioners submit the following issue for the
resolution of the Court:
[W]hether or not Executive Order No. 97-A
violates the equal protection clause of the
Constitution. Specifically the issue is whether the
provisions of Executive Order No. 97-A
confining the application of R.A. 7227 within the
secured area and excluding the residents of the
zone outside of the secured area is discriminatory
or not. 4
The Court's Ruling
The petition 5 is bereft of merit.
Main Issue:
The Constitionality of EO 37-A
Citing Section 12 of RA 7227, petitioners
contend that the SSEZ encompasses (1) the City
of Olongapo, (2) the Municipality of Subic in
Zambales, and (3) the area formerly occupied by
the Subic Naval Base. However, EO 97-A,
according to them, narrowed down the area
within which the special privileges granted to the
entire zone would apply to the present "fenced-in
former Subic Naval Base" only. It has thereby
excluded the residents of the first two
components of the zone from enjoying the
benefits granted by the law. It has effectively
discriminated against them without reasonable or
valid standards, in contravention of the equal
protection guarantee.

32

On the other hand, the solicitor general defends,


on behalf of respondents, the validity of EO 97A, arguing that Section 12 of RA 7227 clearly
vests in the President the authority to delineate
the metes and bounds of the SSEZ. He adds that
the issuance fully complies with the
requiretnents of a valid classification.
We rule in favor of the constitutionality and
validity of the assailed EO. Said Order is not
violative of the equal protection clause; neither is
it discriminatory. Rather, than we find real and
substantive
distinctions
between
the
circumstances obtain;ng inside and those outside
the Subic Naval Base, thereby justifying a valid
and reasonable classification.
The fundamental right of equal protection of the
laws 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 another. 6 The
classification must also be germane to the
purpose of the law and must apply to all those
belonging to the same class. Explaining the
nature of the equal protection guarantee, the
Court in Ichong v. Hernandez 8 said:
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 [by] the object
to which it is directed or by [the] 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.
Classification, to be valid, must (1) rest on
substantial distinctions, (2) be germane to the
purpose of the law, (3) not be limited to existing

conditions only, and (4) apply equally to all


members of the same class. 9
We first determine the purpose of the law. From
the very title itself, it is clear that RA 7227 aims
primarily to accelerate the conversion of
military reservations into productive uses.
Obviously, the "lands covered under the 1947
Military Bases Agreement" are its object. Thus,
the law avows this policy:
Sec. 2. Declaration of Policies. It is hereby
declared the policy of the Government to
accelerate the sound and balanced conversion
into alternative productive uses of the Clark and
Subic military reservations and their extensions
(John Hay Station, Wallace Air Station,
O'Donnell Transmitter Station, San Miguel
Naval Communications Station and Capas Relay
Station), to raise funds by the sale of portions of
Metro Manila military camps, and to apply said
funds as provided herein for the development
and conversion to productive civilian use of the
lands covered under the 1947 Military Bases
Agreement between the Philippines and the
United States of America, as amended.
To undertake the above objectives, the same law
created the Bases Conversion and Development
Authority, some of whose relevant defined
purposes are:
(b) To adopt, prepare and implement a
comprehensive and detailed development plan
embodying a list of projects including but not
limited to those provided in the LegislativeExecutive Bases Council (LEBC) framework
plan for the sound and balanced conversion of
the Clark and Subic military reservations and
their extensions consistent with ecological and
environmental standards, into other productive
uses to promote the economic and social
development of Central Luzon in particular and
the country in general;
(c). To encourage the active participation of the
private sector in transforming the Clark and
Subic military reservations and their extensions
into other productive uses;
Further, in creating the SSEZ, the law declared it
a policy to develop the zone into a "self-

sustaining, industrial, commercial, financial and


investment center." 10
From the above provisions of the law, it can
easily be deduced that the real concern of RA
7227 is to convert the lands formerly occupied
by the US military bases into economic or
industrial areas. In furtherance of such objective,
Congress deemed it necessary to extend
economic incentives to attract and encourage
investors, both local and foreign. Among such
enticements are: 11 (1) a separate customs
territory within the zone, (2) tax-and-duty-free
importation's, (3) restructured income tax rates
on business enterprises within the zone, (4) no
foreign exchange control, (5) liberalized
regulations on banking and finance, and (6) the
grant of resident status to certain investors and of
working visas to certain foreign executives and
workers .
We believe it was reasonable for the President to
have delimited the application of some
incentives to the confines of the former Subic
military base. It is this specific area which the
government intends to transform and develop
from its status quo ante as an abandoned naval
facility into a self-sustaining industrial and
commercial zone, particularly for big foreign and
local investors to use as operational bases for
their businesses and industries. Why the seeming
bias for the big investors? Undeniably, they are
the ones who can pour huge investments to spur
economic growth in the country and to generate
employment opportunities for the Filipinos, the
ultimate goals of the government for such
conversion. The classification is, therefore,
germane to the purposes of the law. And as the
legal maxim goes, "The intent of a statute is the
law." 12
Certainly, there are substantial differences
between the big investors who are being lured to
establish and operate their industries in the socalled "secured area" and the present business
operators outside the area. On the one hand, we
are talking of billion-peso investments and
thousands of new, jobs. On the other hand,
definitely none of such magnitude. In the first,
the economic impact will be national; in the

second, only local. Even more important, at this


time the business activities outside the "secured
area" are not likely to have any impact in
achieving the purpose of the law, which is to turn
the former military base to productive use for the
benefit of the Philippine economy. There is, then,
hardly any reasonable basis to extend to them the
benefits and incentives accorded in RA 7227.
Additionally, as the Court of Appeals pointed
out, it will be easier to manage and monitor the
activities within the "secured area," which is
already fenced off, to prevent "fraudulent
importation of merchandise" or smuggling.
It is well-settled that the equal-protection
guarantee does not require territorial uniformity
of laws. 13 As long as there are actual and
material differences between territories, there is
no violation of the constitutional clause. And of
course, anyone, including the petitioners,
possessing the requisite investment capital can
always avail of the same benefits by channeling
his or her resources or business operations into
the fenced-off free port zone.
We believe that the classification set forth by the
executive issuance does not apply merely to
existing conditions. As laid down in RA 7227,
the objective is to establish a "self-sustaining,
industrial, commercial, financial and investment
center" in the area. There will, therefore, be a
long-term difference between such investment
center and the areas outside it.
Lastly, the classification applies equally to all the
resident individuals and businesses within the
"secured area." The residents, being in like
circumstances or contributing directly to the
achievement of the end purpose of the law, are
not categorized further. Instead, they are all
similarly treated, both in privileges granted and
in obligations required.
All told, the Court holds that no undue favor or
privilege was extended. The classification
occasioned by EO 97-A was not unreasonable,
capricious or unfounded. To repeat, it was based,
rather, on fair and substantive considerations that
were germane to the legislative purpose.
WHEREFORE, the petition is DENIED for lack
of merit. The assailed Decision and Resolution

33

are hereby AFFIRMED.


petitioners.1wphi1.nt
SO ORDERED.

Costs

against TFH) headed by petitioner Chief Superintendent


Panfilo M. Lacson; Central Police District
Command (CPDC) led by Chief Superintendent
Ricardo de Leon; and the Criminal Investigation
Command (CIC) headed by petitioner-intervenor
PANFILO M. LACSON, petitioner,
Chief Superintendent Romeo Acop.
vs.
Acting on a media expose of SPO2 Eduardo
THE EXECUTIVE SECRETARY, THE delos Reyes, a member of the CIC, that what
SANDIGANBAYAN, OFFICE OF THE actually transpired at dawn of May 18, 1995 was
SPECIAL
PROSECUTOR,
THE a summary execution (or a rub out) and not a
DEPARTMENT OF JUSTICE, MYRNA shoot-out between the Kuratong Baleleng gang
ABALORA, NENITA ALAP-AP, IMELDA members and the ABRITG, Ombudsman Aniano
PANCHO MONTERO, and THE PEOPLE Desierto formed a panel of investigators headed
OF THE PHILIPPINES, respondent.
by the Deputy Ombudsman for Military Affairs,
ROMEO M. ACOP AND FRANCISCO G. Bienvenido Blancaflor, to investigate the
ZUBIA, JR., petitioner-intervenors.
incident. This panel later absolved from any
criminal liability all the PNP officers and
MARTINEZ, J.:
personal allegedly involved in May 18, 1995
The constitutionality of Sections 4 and 7 of incident, with a finding that the said incident was
Republic Act No. 8249 an act which further a legitimate police operation. 1
defines the jurisdiction of the Sandiganbayan However, a review board led by Overall Deputy
is being challenged in this petition for Ombudsman Francisco Villa modified modified
prohibition and mandamus. Petitioner Panfilo the Blancaflor panel's finding and recommended
Lacson, joined by petitioners-intervenors Romeo the indictment for multiple murder against
Acop and Francisco Zubia, Jr., also seeks to twenty-six (26) respondents, including herein
prevent the Sandiganbayan from proceedings petitioner and intervenors. The recommendation
with the trial of Criminal Cases Nos. 23047- was approved by the Ombudsman except for the
23057 (for multiple murder) against them on the withdrawal of the charges against Chief Supt.
ground of lack of jurisdiction.
Ricardo de Leon.
The antecedents of this case, as gathered from Thus, on November 2, 1995, petitioner Panfilo
the parties' pleadings and documentary proofs, Lacson was among those charged as principal in
are as follows:
eleven (11) information for murder 2 before the
In the early morning of May 18, 1995, eleven Sandiganbayan's Second Division, while
(11) persons believed to be members of the intervenors Romeo Acop and Francisco Zubia,
Kuratong Baleleng gang, reportedly an organized Jr. were among those charged in the same
crime syndicate which had been involved in a informations as accessories after-in-the-fact.
spate of bank robberies in Metro Manila, where Upon motion by all the accused in the 11
slain along Commonwealth Avenue in Quezon information, 3 the Sandiganbayan allowed them
City by elements of the Anti-Bank Robbery and to file a motion for reconsideration of the
Intelligence Task Group (ABRITG) headed by Ombudsman's action. 4
Chieff Superintendent Jewel Canson of the After conducting a reinvestigation, the
Philippine National Police (PNP). The ABRITG Ombudsman filed on March 1, 1996 eleven (11)
5
was composed of police officers from the Traffic amended
informations
before
the
Management Command (TMC) led by Sandiganbayan, wherein petitioner was charged
petitioner-intervenor Senior Superintendent only as an accessory, together with Romeo Acop
Francisco Zubia, Jr.; Presidential Anti-Crime and Francisco Zubia, Jr. and other. One of the
Commission Task Force Habagat (PACC- accused 6 was dropped from the case.

On March 5-6, 1996, all the accused filed


separate motions questioning the jurisdiction of
the Sandiganbayan, asserting that under the
amended informations, the cases fall within the
jurisdiction of the Regional Trial Court pursuant
to Section 2 (paragraphs a and c) of Republic Act
No. 7975. 7 They contend that the said law
limited the jurisdiction of the Sandiganbayan to
cases where one or more of the "principal
accused" are government officials with Salary
Grade (SG) 27 or higher, or PNP officials with
the rank of Chief Superintendent (Brigadier
General) or higher. The highest ranking principal
accused in the amended informations has the
rank of only a Chief Inspector, and none has the
equivalent of at least SG 27.
Thereafter, in a Resolution 8 dated May 8, 1996
(promulgated on May 9, 1996), penned by
Justice Demetriou, with Justices Lagman and de
Leon concurring, and Justices Balajadia and
Garchitorena dissenting, 9 the Sandiganbayan
admitted the amended information and ordered
the cases transferred to the Quezon City
Regional Trial Court which has original and
exclusive jurisdiction under R.A. 7975, as none
of the principal accused has the rank of Chief
Superintendent or higher.
On May 17, 1996, the Office of the Special
Prosecutor moved for a reconsideration, insisting
that the cases should remain with the
Sandiganbayan. This was opposed by petitioner
and some of the accused.
While these motions for reconsideration were
pending resolution, and even before the issue of
jurisdiction cropped up with the filing of the
amended informations on March 1, 1996, House
Bill No. 2299 10 and No. 1094 11 (sponsored by
Representatives Edcel C. Lagman and Lagman
and Neptali M. Gonzales II, respectively), as
well as Senate Bill No. 844 12 (sponsored by
Senator Neptali Gonzales), were introduced in
Congress, defining expanding the jurisdiction of
the Sandiganbayan. Specifically, the said bills
sought, among others, to amend the jurisdiction
of the Sandiganbayan by deleting the word
"principal" from the phrase "principal accused"

in Section 2 (paragraphs a and c) of R.A. No.


7975.
These bills were consolidated and later approved
into law as R.A. No. 8249 13 by the President of
the Philippines on February 5, 1997.
Subsequently, on March 5, 1997, the
Sandiganbayan promulgated a Resolution 14
denying the motion for reconsideration of the
Special Prosecutor, ruling that it "stands pat in its
resolution dated May 8, 1996."
On the same day 15 the Sandiganbayan issued and
ADDENDUM to its March 5, 1997 Resolution,
the pertinent portion of which reads:
After Justice Lagman wrote the Resolution and
Justice Demetriou concurred in it, but before
Justice de Leon. Jr. rendered his concurring and
dissenting opinion, the legislature enacted
Republic Act 8249 and the President of the
Philippines approved it on February 5, 1997.
Considering the pertinent provisions of the new
law, Justices Lagman and Demetriou are now in
favor of granting, as they are now granting, the
Special Prosecutor's motion for reconsideration.
Justice de Leon has already done so in his
concurring and dissenting opinion.
xxx xxx xxx
Considering that three of the accused in each of
these cases are PNP Chief Superintendents:
namely, Jewel T. Canson, Romeo M. Acop and
Panfilo M. Lacson, and that trial has not yet
begun in all these cases in fact, no order of
arrest has been issued this court has
competence to take cognizance of these cases.
To recapitulate, the net result of all the foregoing
is that by the vote of 3 of 2, the court admitted
the Amended Informations in these cases by the
unanimous vote of 4 with 1 neither concurring
not dissenting, retained jurisdiction to try and
decide the cases 16 (Empahasis supplied)
Petitioner now questions the constitutionality of
Section 4 of R.A. No. 8249, including Section 7
thereof which provides that the said law "shall
apply to all cases pending in any court over
which trial has not begun as to the approval
hereof." Petitioner argues that:
a) The questioned provisions of the statute were
introduced by the authors thereof in bad faith as

34

it was made to precisely suit the situation in


which petitioner's cases were in at the
Sandiganbayan by restoring jurisdiction thereof
to it, thereby violating his right to procedural due
process and the equal protection clause of the
Constitution. Further, from the way the
Sandiganbayan has foot-dragged for nine (9)
months the resolution of a pending incident
involving the transfer of the cases to the
Regional Trial Court, the passage of the law may
have been timed to overtake such resolution to
render the issue therein moot, and frustrate the
exercise of petitioner's vested rights under the
old Sandiganbayan law (RA 7975)
b) Retroactive application of the law is plan from
the fact that it was again made to suit the
peculiar circumstances in which petitioner's
cases were under, namely, that the trial had not
yet commenced, as provided in Section 7, to
make certain that those cases will no longer be
remanded to the Quezon City Regional Trial
Court, as the Sandiganbayan alone should try
them, thus making it an ex post facto legislation
and a denial of the right of petitioner as an
accused in Criminal Case Nos. 23047-23057 to
procedural due process.
c) The title of the law is misleading in that it
contains the aforesaid "innocuous" provisions in
Sections 4 and 7 which actually expands rather
than defines the old Sandiganbayan law (RA
7975), thereby violating the one-title one-subject
requirement for the passage of statutes under
Section 26 (1), Article VI of the Constitution. 17
For their part, the intervenors, in their petitionin-intervention, add that "while Republic Act No.
8249 innocuously appears to have merely
expanded the jurisdiction of the Sandiganbayan,
the introduction of Section 4 and 7 in said statute
impressed upon it the character of a class
legislation and an ex-post facto statute intended
to apply specifically to the accused in the
Kuratong Baleleng case pending before the
Sandiganbayan. 18 They further argued that if
their case is tried before the Sandiganbayan their
right to procedural due process would be violated
as they could no longer avail of the two-tiered
appeal to the Sandiganbayan, which they

acquired under R.A. 7975, before recourse to the


Supreme Court.
Both the Office of the Ombudsman and the
Solicitor-General filed separate pleadings in
support of the constitutionality of the challenged
provisions of the law in question and praying
that both the petition and the petition-inintervention be dismissed.
This Court then issued a Resolution 19 requiring
the parties to file simultaneously within a
nonextendible period of ten (10) days from
notice thereof additional memoranda on the
question of whether the subject amended
informations filed a Criminal Case Nos. 2304723057 sufficiently allege the commission by the
accused therein of the crime charged within the
meaning Section 4 b of Republic Act No. 8249,
so as to bring the said cases within the exclusive
original jurisdiction of the Sandiganbayan.
The parties, except for the Solicitor General who
is representing the People of the Philippines,
filed the required supplemental memorandum
within the nonextendible reglementary period.
The established rule is that every law has in its
favor the presumption of constitutionality, and to
justify its nullification there must be a clear and
unequivocal breach of the Constitution, not a
doubtful and argumentative one. 20 The burden of
proving the invalidity of the law lies with those
who challenge it. That burden, we regret to say,
was not convincingly discharged in the present
case.
The creation of the Sandiganbayn was mandated
in Section 5, Article XIII of the 1973
Constitution, which provides:
Sec. 5. The Batasang Pambansa shall create a
special court, to be known as Sandiganbayan,
which shall have jurisdiction over criminal and
civil cases involving graft and corrupt practices
and such other offenses committed by public
officers and employees including those in
government-owned or controlled corporations, in
relation to their office as may be determined by
law.
The said special court is retained in the new
(1987) Constitution under the following
provisions in Article XI, Section 4:

Sec. 4. The present anti-graft court known as the


Sandiganbayan shall continue to function and
exercise its jurisdiction as now or hereafter may
be provided by law.
Pursuant to the constitutional mandate,
Presidential Decree No. 1486 21 created the
Sandiganbayan. Thereafter, the following laws
on the Sandiganbayan, in chronological order,
were enacted: P.D. No. 1606, 22 Section 20 of
Batas Pambansa Blg. 123, 23 P.D. No. 1860, 24
P.D. No. 1861, 25 R.A. No. 7975, 26 and R.A. No.
8249. 27 Under the latest amendments introduced
by Section 4 of R.A. No. 8249, the
Sandiganbayan has jurisdiction over the
following cases:
Sec 4. Section 4 of the same decree [P.D. No.
1606, as amended] is hereby further amended to
read as follows:
Sec. 4. Jurisdiction The Sandiganbayan shall
exercise exclusive original jurisdiction in all
cases involving:
a. Violations of Republic Act No. 3019, as
amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, Republic Act No. 1379,
and Chapter II, Section 2, Titile VII, Book II of
the Revised Penal Code, where one or more of
the accused are officials occupying the following
positions in the government, whether in a
permanent, acting or interim capacity, at the time
of the commission of the offense:
(1) Officials of the executive branch occupying
the positions of regional director and higher,
otherwise classified as Grade "27" and higher, of
the Compensation and Position Classification
Act of 1989 (Republic Act No. 6758),
specifically including:
(a) Provincial governors, vice-governors,
members of the sangguniang panlalawigan, and
provincial treasurers, assessors, engineers, and
other provincial department heads;
(b) City mayors, vice-mayors, members of the
sangguniang panlungsod, city treasurers,
assessors, engineers, and other city department
heads;
(c) Officials of the diplomatic service occupying
the position of consul and higher;

(d) Philippine Army and air force colonels, naval


captains, and all officers of higher rank;
(e) Officers of the Philippines National Police
while occupying the position of provincial
director and those holding the rank of senior
superintendent or higher.
(f) City of provincial prosecutors and their
assistants, and officials and prosecutors in the
Office of the Ombudsman and special
prosecutor;
(g) Presidents, directors or trustees or managers
of government-owned or controlled corporations,
state universities or educational institutions or
foundations;
(2) Members of Congress or officials thereof
classified as-Grade "27" and up under the
Compensation and Position Classification Act of
1989;
(3) Members of the judiciary without prejudice
to the provisions of the Constitution;
(4) Chairman and members of the Constitutional
Commissions, without prejudice to the
provisions of the Constitution;
(5) All other national and local officials
classified as Grade "27" or higher under the
Compensation and Position Classification Act of
1989.
b. Other offenses or felonies whether simple or
complexed with other crimes committed by the
public officials and employees mentioned in
Subsection a of this section in relation to their
office.
c. Civil and criminal cases filed pursuant to and
connection with Executive Orders Nos. 1,2, 14
and 14-A, issued in 1986.
In cases where none of the accused are
occupying positions corresponding to salary
Grade "27" or higher, as prescribed in the said
Republic Act 6758, or military and PNP officers
mentioned above, exclusive original jurisdiction
thereof shall be vested in the proper regional trial
court, metropolitan trial court, municipal trial
court, and municipal circuit trial court, as the
case may be, pursuant to their jurisdictions as
privided in Batas Pambansa Blg. 129, as
amended.

35

The Sandiganbayan shall exercise exclusive


appellate jurisdiction over final judgments,
resolutions or orders of regional trial courts
whether in the exercise of their own original
jurisdiction or of their appellate jurisdiction as
herein provided.
The Sandiganbayan shall have exclusive original
jurisdiction over petitions of the issuance of the
writs of mandamus, prohibition, certiorari,
habeas corpus, injunctions, and other ancillary
writs and processes in aid of its appellate
jurisdiction and over petitions of similar nature,
including quo warranto, arising or that may arise
in cases filed or which may be filed under
Executive Order Nos. 1, 2, 14 and 14-A, issued
in 1986: Provided, That the jurisdiction over
these petitions shall not be exclusive of the
Supreme Court.
The procedure prescribed in Batas Pambansa
Blg. 129, as well as the implementing rules that
the Supreme Court has promulgated and may
hereafter
promulgate,
relative
to
appeals/petitions for review to the Court of
Appeals, shall apply to appeals and petitions for
review filed with the Sandiganbayan. In all cases
elevated to the Sandiganbayan and from the
Sandiganbayan to the Supreme Court, the Office
of the Ombudsman, through its special
prosecutor, shall represent the People of the
Philippines, except in cases filed pursuant to
Executive Order Nos. 1, 2, 14, and 4-A, issued in
1986.
In case private individuals are charged as coprincipals, accomplices or accessories with the
public officers or employee, including those
employed in government-owned or controlled
corporations, they shall be tried jointly with said
public officers and employees in the proper
courts which shall exercise exclusive jurisdiction
over them.
xxx xxx xxx (Emphasis supplied)
Sec. 7 of R.A. No. 8249 states:
Sec. 7. Transitory provision This act shall
apply to all cases pending in any court over
which trial has not begun as of the approval
hereof. (Emphasis supplied)

The Sandiganbayan law prior to R.A. 8249 was


R.A. 7975. Section 2 of R.A. 7975 provides:
Sec. 2. Section 4 of the same decree [Presidential
Decree No. 1606, as amended) is hereby further
amended to read as follows:
Sec 4. Jurisdiction The Sandiganbayan shall
exercise exclusive original jurisdiction in all
cases involving:
a. Violations of Republic Act No. 3019, as
amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, Republic Act No. 1379,
and Chapter II, Section 2, Title VII, Book II of
the Revised Penal Code, where one or more of
the pricipal accused are afficials occupying the
following positions in the government, whether
in a permanent, acting or interim capacity, at the
time of the commission of the offense:
(1) Officials of the executive branch occupying
the positions of regional director and higher,
otherwise classified as Grade "27" and higher, of
the Compensation and Position Classification
Act of 1989 (Republic Act No. 6758),
specifically including:
(a) Provincial governors, vice-governors,
members of the sangguniang panlalawigan, and
provincial treasurers, assessors, engineer, and
other provincial department heads;
(b) City mayors, vice-mayors, members of the
sangguniang panlungsod, city treasurers,
assessors, engineers, and other city department
heads;
(c) Officials of the diplomatic service occupying
the position of consul and higher;
(d) Philippine Army and air force colonels, naval
captains, and all officers of higher rank;
(e) PNP chief superintendent and PNP officers of
higher rank;
(f) City and provincial prosecutors and their
assistants, and officials and prosecutors in the
Office of the Ombudsman and special
prosecutor;
(g) Presidents, directors or trustees, or managers
of government-owned or controlled corporations,
state universities or educational institutions or
foundations;
(2) Members of Congress or officials thereof
classified as Grade "27" and up under the

Compensation and Position Classification Act of


1989;
(3) Members of the judiciary without prejudice
to the provisions of the Constitution;
(4) Chairman and members of the Constitutional
Commissions, without prejudice to the
provisions of the Constitution;
(5) All other national and local officials
classified as Grade "27" or higher under the
Compensation and Position Classification Act of
1989.
b. Other offenses or felonies committed by the
public officials and employees mentioned in
Subsection a of this section in relation to their
office.
c. Civil and criminal cases files pursuant to and
in connection with Executive Order Nos. 1, 2,
14, and 4-A.
In cases where none of the principal accused are
occupying positions corresponding to salary
Grade "27" or higher, as presribed in the said
Republic Act 6758, or PNP officers occupying
the rank of superintendent or higher, or their
equivalent, exclusive jurisdiction thereof shall be
vested in the proper regional trial court,
metropolitan trial court, municipal trial court,
and municipal circuit trial court, as the case may
be, pursuant to their respective jurisdictions as
provided in Batas Pambansa Blg. 129.
The Sandiganbayan shall exercise exclusive
appellate jurisdiction on appelas from the final
judgment, resolutions or orders of regular court
where all the accused are occupying positions
lower than grade "27," or not otherwise covered
by the preceding enumeration.
xxx xxx xxx
In case private individuals are charged as coprincipals, accomplices or accessories with the
public officers or employees, including those
employed in government-owned or controlled
corporations, they shall be tried jointly with said
public officers and employees in the proper
courts which shall have exclusive jurisdiction
over them.
xxx xxx xxx (Emphasis supplied)
Sec. 7 of R.A. No. 7975 reads:

Sec. 7. Upon the effectivity of this Act, all


criminal cases in which trial has not begun in the
Sandiganbayan shall be referred to the proper
courts.
Under paragraphs a and c, Section 4 of R.A.
8249, the word "principal" before the word
"accused" appearing in the above-quoted Section
2 (paragraphs a and c) of R.A. 7975, was deleted.
It is due to this deletion of the word "principal"
that the parties herein are at loggerheads over the
jurisdiction of the Sandiganbayan. Petitioner and
intervenors, relying on R.A. 7975, argue that the
Regional Trial Court, not the Sandiganbayan, has
jurisdiction over the subject criminal cases since
none of the principal accused under the amended
information has the rank of Superintendent 28 or
higher. On the other hand, the Office of the
Ombudsman, through the Special Prosecutor
who is tasked to represent the People before the
Supreme Court except in certain cases, 29
contends that the Sandiganbayan has jurisdiction
pursuant to R.A. 8249.
A perusal of the aforequoted Section 4 of R.A.
8249 reveals that to fall under the exclusive
original jurisdiction of the Sandiganbayan, the
following requisites must concur: (1) the offense
committed is a violation of (a) R.A. 3019, as
amended (the Anti-Graft and Corrupt Practices
Act), (b) R.A. 1379 (the law on ill-gotten
wealth), (c) Chapter II, Section 2, Title VII,
Book II of the Revised Penal Code (the law on
bribery), 30 (d) Executive Order Nos. 1, 2, 14, and
14-A, issued in 1986 (sequestration cases), 31 or
(e) other offenses or felonies whether simple or
complexed with other crimes; (2) the offender
comitting the offenses in items (a), (b), (c) and
(e) is a public official or employee 32 holding any
of the positions enumerated in paragraph a of
Section 4; and (3) the offense committed is in
relation to the office.
Considering that herein petitioner and
intervenors are being charged with murder which
is a felony punishable under Title VIII of the
Revised Penal Code, the governing on the
jurisdictional offense is not paragraph a but
paragraph b, Section 4 of R.A. 8249. This
paragraph b pertains to "other offenses or

36

felonies whether simple or complexed with other


crimes committed by the public officials and
employees mentioned in subsection a of (Section
4, R.A. 8249) in relation to their office. "The
phrase" other offenses or felonies" is too broad
as to include the crime of murder, provided it
was committed in relation to the accused's
officials functions. Thus, under said paragraph b,
what determines the Sandiganbayan's jurisdiction
is the official position or rank of the offender
that is, whether he is one of those public officers
or employees enumerated in paragraph a of
Section 4. The offenses mentioned in pargraphs
a, b and c of the same Section 4 do not make any
reference to the criminal participation of the
accused public officer as to whether he is
charged as a principal, accomplice or accessory.
In enacting R.A. 8249, the Congress simply
restored the original provisions of P.D. 1606
which does not mention the criminal
participation of the public officer as a requisite to
determine the jurisdiction of the Sandiganbayan.
Petitioner and entervenors' posture that Section 4
and 7 of R.A. 8249 violate their right to equal
protection of the law 33 because its enactment was
particularly directed only to the Kuratong
Baleleng cases in the Sandiganbayan, is a
contention too shallow to deserve merit. No
concrete evidence and convincing argument were
presented to warrant a declaration of an act of the
entire Congress and signed into law by the
highest officer of the co-equal executive
department
as
unconstitutional.
Every
classification made by law is presumed
reasonable. Thus, the party who challenges the
law must present proof of arbitrariness. 34
It is an established precept in constitutional law
that the guaranty of the equal protection of the
laws is not violated by a legislation based on
reasonable classification. The classification is
reasonable and not arbitrary when there is
concurrence of four elements, namely:
(1) it must rest on substantial distinction;
(2) it must be germane to the purpose of the law;
(3) must not be limited to existing conditions
only, and

(4) must apply equaly to all members of the


same class, 35
all of which are present in this case.
The challengers of Sections 4 and 7 of R.A. 8249
failed
to
rebut
the
presumption
of
constitutionality and reasonables of the
questioned provisions. The classification
between those pending cases involving the
concerned public officials whose trial has not yet
commence and whose cases could have been
affected by the amendments of the
Sandiganbayan jurisdiction under R.A. 8249, as
against those cases where trial had already
started as of the approval of the law, rests on
substantial distinction that makes real
differences. 36 In the first instance, evidence
against them were not yet presented, whereas in
the latter the parties had already submitted their
respective proofs, examined witnesses and
presented documents. Since it is within the
power of Congress to define the jurisdiction of
courts subject to the constitutional limitations, 37
it can be reasonably anticipated that an alteration
of that jurisdiction would necessarily affect
pending cases, which is why it has to privide for
a remedy in the form of a transitory provision.
Thus, petitioner and intervenors cannot now
claim that Sections 4 and 7 placed them under a
different category from those similarly situated
as them. Precisely, paragraph a of Section 4
provides that it shall apply to "all case involving"
certain public officials and, under the transitory
provision in Section 7, to "all cases pending in
any court." Contrary to petitioner and
intervenors' argument, the law is not particularly
directed only to the Kuratong Baleleng cases.
The transitory provision does not only cover
cases which are in the Sandiganbayan but also in
"any court." It just happened that Kuratong
Baleleng cases are one of those affected by the
law. Moreover, those cases where trial had
already begun are not affected by the transitory
provision under Section 7 of the new law (R.A.
8249).
In their futile attempt to have said sections
nullified, heavy reliance is premised on what is
perceived as bad faith on the part of a Senator

and two Justices of the Sandiganbaya 38 for their


participation in the passage of the said
provisions. In particular, it is stressed that the
Senator had expressed strong sentiments against
those officials involved in the Kuratong Baleleng
cases during the hearings conducted on the
matter by the committee headed by the Senator.
Petitioner further contends that the legislature is
biased against him as he claims to have been
selected from among the 67 million other
Filipinos as the object of the deletion of the word
"principal" in paragraph a, Section 4 of P.D.
1606, as amended, and of the transitory
provision of R.A. 8249. 39 R.A 8249, while still a
bill, was acted, deliberated, considered by 23
other Senators and by about 250 Representatives,
and was separately approved by the Senate and
House of Representatives and, finally, by the
President of the Philippines.
On the perceived bias that the Sandiganbayan
Justices allegedly had against petitioner during
the committe hearings, the same would not
constitute sufficient justification to nullify an
otherwise valid law. Their presence and
participation in the legislative hearings was
deemed necessary by Congress since the matter
before the committee involves the graft court of
which one is the head of the Sandiganbayan and
the other a member thereof. The Congress, in its
plenary legislative powers, is particularly
empowered by the Constitution to invite persons
to appear before it whenever it decides to
conduct inquiries in aid of legislation. 40
Petitioner and entervenors further further argued
that the retroactive application of R.A. 8249 to
the Kuratong Baleleng cases constitutes an ex
post facto law 41 for they are deprived of their
right to procedural due process as they can no
longer avail of the two-tiered appeal which they
had allegedly acquired under R.A. 7975.
Again, this contention is erroneous. There is
nothing ex post facto in R.A. 8249. In Calder v.
Bull, 42 an ex post facto law is one
(a) which makes an act done criminal before the
passing of the law and which was innocent when
committed, and punishes such action; or

(b) which aggravates a crime or makes it greater


than when it was committed; or
(c) which changes the punishment and inflicts a
greater punishment than the law annexed to the
crime when it was committed.
(d) which alters the legal rules of evidence and
recieves less or different testimony that the law
required at the time of the commission of the
offense on order to convict the defendant. 43
(e) Every law which, in relation to the offense or
its consequences, alters the situation of a person
to his disadvantage. 44
This Court added two more to the list, namely:
(f) that which assumes to regulate civil rights and
remedies only but in effect imposes a penalty or
deprivation of a right which when done was
lawful;
(g) deprives a person accussed of crime of some
lawful protection to which he has become
entitled, such as the protection of a former
conviction or acquittal, or a proclamation of a
amnesty. 45
Ex post facto law, generally, prohibits
retrospectivity of penal laws. 46 R.A. 8249 is not
penal law. It is a substantive law on jurisdiction
which is not penal in character. Penal laws are
those acts of the Legislature which prohibit
certain acts and establish penalties for their
violations; 47 or those that define crimes, treat of
their nature, and provide dor their punishment. 48
R.A 7975, which amended P.D. 1606 as regards
the Sandiganbayan's jurisdiction, its mode of
appeal and other procedural matters, has been
declared by the Court as not a penal law, but
clearly a procedural statute, i.e. one which
prescribes rules of procedure by which courts
applying laws of all kinds can properly
administer justice. 49 Not being a penal law, the
retroactive application of R.A. 8249 cannot be
challenged as unconstitutional.
Petitioner's and entervenors' contention that their
right to a two-tiered appeal which they acquired
under R.A. 7975 has been diluted by the
enactment of R.A. 8249, is incorrect. The same
contention has already been rejected by the court
several times 50 considering that the right to
appeal is not a natural right but statutory in

37

nature that can be regulated by law. The mode of


procedure provided for in the statutory right of
appeal is not included in the prohibition against
ex post facto laws. 51 R.A. 8249 pertains only to
matters of procedure, and being merely an
amendatory statute it does not partake the nature
of an ex post facto law. It does not mete out a
penalty and, therefore, does not come within the
prohibition. 52 Moreover, the law did not alter the
rules of evidence or the mode of trial. 53 It has
been ruled that adjective statutes may be made
applicable to actions pending and unresolved at
the time of their passage. 54
In any case; R.A. 8249 has preserved the
accused's right to appeal to the Supreme Court to
review questions of law. 55 On the removal of the
intermediate review of facts, the Supreme Court
still has the power of review to determine if he
presumption of innocence has been convincing
overcome. 56
Another point. The challenged law does not
violate the one-title-one-subject provision of the
Constitution. Much emphasis is placed on the
wording in the title of the law that it "defines"
the Sandiganbayan jurisdiction when what it
allegedly does is to "expand" its jurisdiction. The
expantion in the jurisdiction of the
Sandiganbayan, if it can be considered as such,
does not have to be expressly stated in the title of
the law because such is the necessary
consequence of the amendments. The
requirement that every bill must only have one
subject expressed in the title 57 is satisfied if the
title is comprehensive enough, as in this case, to
include subjects related to the general purpose
which the statute seeks to achieve. 58 Such rule is
liberally interpreted and should be given a
practical rather than a technical construction.
There is here sufficient compliance with such
requirement, since the title of R.A. 8249
expresses the general subject (involving the
jurisdiction of the Sandiganbayan and the
amendment of P.D. 1606, as amended) and all
the provisions of the law are germane to that
general subject. 59 The Congress, in employing
the word "define" in the title of the law, acted
within its power since Section 2, Article VIII of

the Constitution itself empowers the legislative


body to "define, prescribe, and apportion the
jurisdiction of various courts. 60
There being no unconstitutional infirmity in both
the subject amendatory provision of Section 4
and the retroactive procedural application of the
law as provided in Section 7 of R.A. No. 8249,
we shall now determine whether under the
allegations in the Informations, it is the
Sandiganbayan or Regional Trial Court which
has jurisdictions over the multiple murder case
against herein petitioner and entervenors.
The jurisdiction of a court is defined by the
Constitution or statute. The elements of that
definition must appear in the complaint or
information so as to ascertain which court has
jurisdiction over a case. Hence the elementary
rule that the jurisdiction of a court is determined
by the allegations in the complaint or
informations, 61 and not by the evidence
presented by the parties at the trial. 62
As stated earlier, the multiple murder charge
against petitioner and intervenors falls under
Section 4 [paragraph b] of R.A. 8249. Section 4
requires that the offense charged must be
committed by the offender in relation to his
office in order for the Sandiganbayan to have
jurisdiction over it. 63 This jurisdictional
requirement is in accordance with Section 5,
Article XIII of the 1973 Constitution which
mandated that the Sandiganbayan shall have
jurisdiction over criminal cases committed by the
public officers and employees, including those in
goverment-owned or controlled corporations, "in
relation to their office as may be determined by
law." This constitutional mandate was reiterated
in the new (1987) Constitution when it declared
in Section 4 thereof that the Sandiganbayan shall
continue to function and exercise its jurisdiction
as now or hereafter may be provided by law.
The remaining question to be resolved then is
whether the offense of multiple murder was
committed in relation to the office of the
accussed PNP officers.
In People vs. Montejo, 64 we held that an offense
is said to have been committed in relation to the
office if it (the offense) is "intimately connected"

with the office of the offender and perpetrated


while he was in the performance of his official
functions. 65 This intimate relation between the
offense charged and the discharge of official
duties "must be alleged in the informations." 66
As to how the offense charged be stated in the
informations, Section 9, Rule 110 of the Revised
Rules of Court mandates:
Sec. 9 Couse of accusation The acts or
omissions complied of as constituting the offense
must be stated in ordinary and concise language
without repetition not necessarily in the terms of
the statute defining the offense, but in such from
as is sufficient to enable a person of common
understanding to know what offense is intended
to be charged, and enable the court to
pronounce
proper
judgment.
(Emphasis
supplied)
As early as 1954 we pronounced that "the factor
that characterizes the charge is the actual recital
of the facts." 67 The real nature of the criminal
charge is determined not from the caption or
preamble of the informations nor from the
specification of the provision of law alleged to
have been violated, they being conclusions of
law, but by the actual recital of facts in the
complaint or information. 68
The noble object or written accusations cannot
be overemphasized. This was explained in U.S.
v. Karelsen: 69
The object of this written accusations was
First; To furnish the accused with such a
descretion of the charge against him as will
enable him to make his defense and second to
avail himself of his conviction or acquittal for
protection against a further prosecution for the
same cause and third, to inform the court of the
facts alleged so that it may decide whether they
are sufficient in law to support a conviction if
one should be had. In order that the requirement
may be satisfied, facts must be stated, not
conclusions of law. Every crime is made up of
certain acts and intent these must be set forth in
the complaint with reasonable particularly of
time, place, names (plaintiff and defendant) and
circumstances. In short, the complaint must
contain a specific allegation of every fact and

circumstance necessary to constitute the crime


charged. (Emphasis supplied)
It is essential, therefore, that the accused be
informed of the facts that are imputed to him as
"he is presumed to have no indefendent
knowledge of the facts that constitute the
offense." 70
Applying these legal principles and doctrines to
the present case, we find the amended
informations for murder against herein petitioner
and intervenors wanting of specific factual
averments
to
show
the
intimate
relation/connection between the offense charged
and the discharge of official function of the
offenders.
In the present case, one of the eleven (11)
amended informations 71 for murder reads:
AMENDED INFORMATIONS
The undersigned Special Prosecution Officer III.
Office of the Ombudsman hereby accuses
CHIEF INSP. MICHAEL RAY AQUINO,
CHIEF INSP. ERWIN T. VILLACORTE,
SENIOR INSP. JOSELITO T. ESQUIVEL,
INSP. RICARDO G. DANDAN, SPO4
VICENTE P. ARNADO, SPO4 ROBERTO F.
LANGCAUON,
SPO2
VIRGILIO
V.
PARAGAS, SPO2 ROLANDO R. JIMENEZ,
SPO1 WILFREDO C. CUARTERO, SPO1
ROBERTO O. AGBALOG, SPO1 OSMUNDO
B. CARINO, CHIEF SUPT. JEWEL F.
CANSON, CHIEF SUPT. ROMEO M. ACOP,
CHIEF SUPT. PANFILO M. LACSON,
SENIOR SUPT. FRANCISCO G. ZUBIA JR.,
SUPT. ALMARIO A. HILARIO, CHIEF INSP.
CESAR O. MANCAO III, CHIEF INSP. GIL L.
MENESES, SENIOR INSP. GLENN DUMLAO,
SENIOR INSP. ROLANDO ANDUYAN, INSP.
CEASAR TANNAGAN, SPO3 WILLY NUAS,
SPO3 CICERO S. BACOLOD, SPO2
NORBERTO LASAGA, PO2 LEONARDO
GLORIA, and PO2 ALEJANDRO G.
LIWANAG of the crime of Murder as defined
and penalize under Article 248 of the Revised
Penal Code committed as follows
That on or about May 18, 1995 in Mariano
Marcos Avenue, Quezon City Philippines and
within the jurisdiction of his Honorable Court,

38

the accused CHIEF INSP. MICHAEL RAY


AQUINO,
CHIEF
INSP.
ERWIN
T.
VILLACORTE, SENIOR INSP. JOSELITO T.
ESQUIVEL, INSP. RICARDO G. DANDAN,
SPO4 VICENTE ARNADO, SPO4 ROBERTO
F. LANGCAUON, SPO2 VIRGILIO V.
PARAGAS, SPO2 ROLANDO R. JIMENEZ,
SPO1 WILFREDO C. CUARTERO, SPO1
ROBERTO O. AGBALOG, and SPO1
OSMUNDO B. CARINO, all taking advantage
of their public and official positions as officers
and members of the Philippine National Police
and committing the acts herein alleged in relation
to their public office, conspiring with intent to
kill and using firearms with treachery evident
premeditation and taking advantage of their
superior strenghts did then and there willfully
unlawfully and feloniously shoot JOEL
AMORA, thereby inflicting upon the latter
mortal wounds which caused his instantaneous
death to the damage and prejudice of the heirs of
the said victim.
That accused CHIEF SUPT. JEWEL F.
CANSON, CHIEF SUPT. ROMOE M. ACOP,
CHIEF SUPT. PANFILO M. LACSON,
SENIOR SUPT. FRANCISCO G. ZUBIAM JR.,
SUPT. ALMARIO A. HILARIO, CHIEF INSP.
CESAR O. MANCAO II, CHIEF INSP. GIL L.
MENESES, SENIOR INSP. GLENN DUMLAO,
SENIOR INSP. ROLANDO ANDUYAN, INSP.
CEASAR TANNAGAN, SPO3 WILLY NUAS,
SPO3
CICERO
S.
BACOLOD,
PO2
ALEJANDRO G. LIWANAG committing the
acts in relation to office as officers and members
of the Philippine National Police are charged
herein as accessories after-the-fact for concealing
the crime herein above alleged by among others
falsely representing that there where no arrest
made during the read conducted by the accused
herein at Superville Subdivision, Paranaque,
Metro Manila on or about the early dawn of May
18, 1995.
CONTRARY LAW.
While the above-quoted information states that
the above-named principal accused committed
the crime of murder "in relation to thier public
office, there is, however, no specific allegation of

facts that the shooting of the victim by the said


principal accused was intimately related to the
discharge of their official duties as police
officers. Likewise, the amended information
does not indicate that the said accused arrested
and investigated the victim and then killed the
latter while in their custody.
Even the allegations concerning the criminal
participation of herein petitioner and intevenors
as among the accessories after-the-facts, the
amended information is vague on this. It is
alleged therein that the said accessories
concelead "the crime herein-above alleged by,
among others, falsely representing that there
were no arrests made during the raid conducted
by the accused herein at Superville Subdivision,
Paranaque Metro Manila, on or about the early
dawn of May 18, 1995." The sudden mention of
the "arrests made during the raid conducted by
the accused" surprises the reader. There is no
indication in the amended information that the
victim was one of those arrested by the accused
during the "raid." Worse, the raid and arrests
were allegedly conducted "at Superville
Subdivision, Paranaque, Metro Manila" but, as
alleged in the immediately preceding paragraph
of the amended information, the shooting of the
victim by the principal accused occurred in
Mariano Marcos Avenue, Quezon City." How the
raid, arrests and shooting happened in the two
places far away from each other is puzzling.
Again, while there is the allegation in the
amended information that the said accessories
committed the offense "in relation to office as
officers and members of the (PNP)," we,
however, do not see the intimate connection
between the offense charged and the accused's
official functions, which, as earlier discussed, is
an essential element in determining the
jurisdiction of the Sandiganbayan.
The stringent requirement that the charge be set
forth with such particularly as will reasonably
indicate the exact offense which the accused is
alleged to have committed in relation to his
office was, sad to say, not satisfied. We believe
that the mere allegation in the amended
information that the offense was committed by

the accused public officer in relation to his office


is not sufficient. That phrase is merely a
conclusion between of law, not a factual
avernment that would show the close intimacy
between the offense charged and the discharge of
the accused's official duties.
In People vs. Magallanes, 72 where the
jurisdiction between the Regional Trial Court
and the Sandiganbayan was at issue, we ruled:
It is an elementary rule that jurisdiction is
determined by the allegations in the complaint or
information and not by the result of evidence
after trial.
In (People vs) Montejo (108 Phil 613 (1960),
where the amended information alleged
Leroy S. Brown City Mayor of Basilan City, as
such, has organized groups of police patrol and
civilian commandoes consisting of regular
policeman and . . . special policemen appointed
and provided by him with pistols and higher
power guns and then established a camp . . . at
Tipo-tipo which is under his command . . .
supervision and control where his co-defendants
were stationed entertained criminal complaints
and conducted the corresponding investigations
as well as assumed the authority to arrest and
detain person without due process of law and
without bringing them to the proper court, and
that in line with this set-up established by said
Mayor of Basilan City as such, and acting upon
his orders his co-defendants arrested and
maltreated Awalin Tebag who denied in
consequence thereof.
we held that the offense charged was committed
in relation to the office of the accused because it
was perpetreated while they were in the
performance, though improper or irregular of
their official functions and would not have been
committed had they not held their office, besides,
the accused had no personal motive in
committing the crime thus, there was an intimate
connection between the offense and the office of
the accused.
Unlike in Montejo the informations in Criminal
Cases Nos. 15562 and 15563 in the court below
do not indicate that the accused arrested and
investigated the victims and then killed the latter

in the course of the investigation. The


informations merely allege that the accused for
the purpose of extracting or extortin the sum of
P353,000.00 abducted, kidnapped and detained
the two victims, and failing in their common
purpose they shot; and killed the said victims.
For the purpose of determining jurisdiction, it is
these allegations that shall control, and not the
evidence presented by the prosecution at the
trial.
In the aforecited case of People vs. Montejo, it is
noteworthy that the phrase committed in relation
to public office "does not appear in the
information, which only signifies that the said
phrase is not what determines the jurisdiction of
the Sandiganbayan. What is controlling is the
specific factual allegations in the information
that would indicate the close intimacy between
the discharge of the accused's official duties and
the commission of the offense charged, in order
to qualify the crime as having been committed in
relation to public office.
Consequently, for failure to show in the amended
informations that the charge of murder was
intimately connected with the discharge of
official functions of the accused PNP officers,
the offense charged in the subject criminal cases
is plain murder and, therefore, within the
exclusive original jurisdiction of the Regional
Trial Court, 73 not the Sandiganbayan.
WHEREFORE, the constitutionality of Sections
4 and 7 of R.A. 8249 is hereby sustained. The
Addendum to the March 5, 1997 Resolution of
the Sandiganbayan is REVERSED. The
Sandiganbayan is hereby directed to transfer
Criminal Cases Nos. 23047 to 23057 (for
multiple murder) to the Regional Trial Court of
Quezon City which has exclusive original
jurisdiction over the said cases.1wphi1.nt
SO ORDERED.
RONALD
SORIANO,
petitioner,
vs.
COURT OF APPEALS; HON. RODOLFO V.
TOLEDANO, Presiding Judge of the Regional
Trial Court, Branch 69, Third Judicial
Region, Iba Zambales; THE PROVINCIAL

39

SHERIFF, Third Judicial Region, Iba,


Zambales; Ms. NELDA DA MAYCONG,
Suprvising Parole and Probation Officer and
Officer-in-Charge, Zambales Parole and
Probation Office; and THE PEOPLE OF
THE PHILIPPINES, respondents.
QUISUMBING, J.:
This is a petition for certiorari of the decision of
the Court of Appeals in C.A. G.R. SP No. 35550,
1
which upheld the trial court's orders holding
petitioner in contempt and revoking his
probation.
The fact of the case are as follows:
Petitioner Ronald Santiago was convicted of the
crime of Reckless Imprudence resulting to
homicide, serious physical injuries and damage
to property on December 7, 1993. 2 His
application for probation was granted on March
8, 1994, and among the terms and conditions
imposed by the trial court were the following: 3
xxx xxx xxx
7. He shall meet his family responsibilities.
8. He shall devote himself to a specific
employment and shall not change employment
without prior notice to the supervising officer;
and/or shall pursue a prescribed secular study or
vocational training.
xxx xxx xxx
11. He is to indemnify the heirs of the victim
Isidrino Daluyong in the amount of P98,560.00
as ordered by the Court.
xxx xxx xxx
On April 26, 1994, Assistant Prosecutor
Benjamin A Fadera filed a motion to cancel
petitioner's probation due to his failure to satisfy
his civil liability to the heirs of the victim, and a
supplemental motion alleging petitioner's
commission of another crime for which at that
time he was awaiting arraignment. The Zambales
Parole and Probation Office filed a comment
recommending that the petitioner be allowed to
continue with his probation and that he be
required instead to submit a program of payment
of his civil liability.
On June 20, 1994, the trial court denied the
prosecutor's motion and directed petitioner to

submit a program of payment of the civil liability


imposed upon him.
Thereafter, probation officer Nelda D. Maycong
received information that petitioners father who
owned the vehicle involved in the accident which
killed Daluyong, received P16,500.00 as
insurance payment. This amount was not turned
over to the heirs of Daluyong and Da Maycong
considered this a violation of the terms and
conditions of the probation. She submitted a
manifestation to the trial court praying that the
petitioner be made to explain his non-compliance
with the court's order of June 20, 1994, or that be
cited for contempt for such non-compliance. Da
Maycong also asked that petitioner be made to
submit a program of payment as soon as
possible. The trial court granted his prayers in an
order dated August 15, 1994. Petitioner was once
again ordered to submits his program of
payment. Petitioner instead filed a motion for
reconsideration explaining that he did not receive
a copy of said order on June 23, 1994 but failed
to notify petitioner. Thus, the latter failed to
comply with said order.
On October 4, 1994, the trial court issued an
order declaring petitioner in contempt of court
for his failure to comply with its orders of June
20, 1994 and August 15, 1994. The court
likewise revoked the grant of probation to
petitioner and ordered that he be arrested to serve
the sentence originally imposed upon him.
According to the trial court, among the violation
committed by petitioner as regards his probation
are his failure to (1) meet his responsibilities to
his family, (2) engage in a specific employment,
and (3) cooperate with his program of
supervision.
Petitioner then filed a special civil action for
certiorari with the Court of Appeals. He claimed
that respondent judge committed grave abuse of
discretion amounting to lack of, or in excess of,
jurisdiction in holding petitioner in contempt and
revoking his probation. The Court of Appeals
dismissed the petition, holding that petitioner's
"stubborn unwillingness" to comply with the
orders of the trial court "shows his refusal to
reform himself and to correct a wrong." 4

According to the Court of Appeals:


Where probation was approved and probationer
has proven to be unrepentant and disrespectful
and even showed clear defiance to two lawful
court orders, as in the case of herein petitioner,
the court is not barred from revoking the same. 5
Petitioner's motion for reconsideration was
likewise denied by the Court of Appeals for lack
of merit.
Hence, this petition for review, in which
petitioner makes the following assignment of
errors. 6
1. Respondent Court of Appeals erred in failing
to rule that respondent judge committed grave
abuse of discretion in finding that there was
deliberate refusal on the part of petitioner to
comply with his orders dated June 20, 1994 and
August 15, 1994 and subsequently declaring
petitioner in contempt.
2. Respondent Court of Appeals erred in failing
to rule that respondent judge committed grave
abuse of discretion in revoking the probation
order he earlier issued in favor of petitioner on
the ground that petitioner failed to satisfy the
award of civil indemnity for the heirs of the
accident victim.
3. Respondent Court of Appeals erred in failing
to rule that respondent judge committed grave
abuse of discretion in revoking the probation
order he earlier issued in favor of petitioner on
the ground that the latter violated the conditions
of his probation three times.
Petitioner asserts that he had no intention to
ignore the orders of the trial court. The court's
order of June 20, 1994 was received by his
counsel who, however, did not notify petitioner.
Petitioner says that his "former counsel's
irresponsible delay (in informing him of the
order) should not prejudice him." 7
He explains that his non-compliance with the
order to submit a program of payment of his civil
liability is, ultimately, due to his poor financial
condition. He only relies on his parents for
support. He claims that it is impossible for him
to formulate a payment program because, in the
first place, he is in no position to comply with
the same.

Petitioner avers that to require him to satisfy his


civil liability in order to continue to avail of the
benefits of probation is to violate the
constitutional proscription against unequal
protection of the law. He says only moneyed
probationers will be able to benefit from
probation if satisfaction of civil liability is made
a condition.
Petitioner contends that his enjoyment of
probation should not be made to depend on the
satisfaction of his civil liability. He invokes the
separate opinion of Justice Isagani A. Cruz in
Salgado v. Court of Appeals, 8 particularly
Justice Cruz' reservation about the validity of
imposing satisfaction of civil liability as a
condition for probation such an imposition is in
the nature of an amendment of the decision of
the trial court in the criminal case against him,
which cannot be allowed since the decision is
already final and executory. He further invokes
the majority decision in Salgado and asserts that
"any program of payment of civil liability must
take into consideration the needs and capacity of
petitioner." 9
Petitioner claims that his failure to meet his
responsibilities to his family and to engage in
gainful employment is not deliberate but is due
to his poverty. He adds that his being unskilled,
with a criminal record to his name, does not
exactly enhance his chances for employment.
Finally, petitioner cites our decision in Baclayon
v. Mutia: 10
. . . Conditions should be interpreted with
flexibility in their application and each case
should be judged on its own merits on the
basis of the problems, needs and capacity of the
probationer. The very liberality of the probation
should not be made a tool by trial courts to
stipulate instead unrealistic terms. 11
In his comment, the Solicitor General asks for
the dismissal of the petition. The only issue to be
resolved according to him is whether or not
petitioner has violated the terms and conditions
of his probation warrant its revocation. The
Solicitor General argues that petitioner has
committed violations, thus justifying the trial
court' s revocation of the grant of probation. He

40

further points out that our ruling in Salgado is


inapplicable to the case of petitioner since what
was involved in Salgado was a program of
payment already imposed upon petitioner
therein. In this case, however, it is petitioner who
is being asked to submit his own program of
payment and he had not submitted any such
program:
The only issue for us to resolve in this case is
whether or not the revocation of petitioner's
probation is lawful and proper.
Petitioner asserts that his non-compliance with
the orders of the trial court requiring him to
submit a program of payment was not deliberate.
To our mind, his refusal to comply with said
orders cannot be anything but deliberate. He had
notice of both orders, although the notice of the
order of June 20, 1994 came belatedly. He has,
up to this point, refused to comply with the trial
court's directive, by questioning instead the
constitutionality of the requirement imposed and
harping on his alleged poverty as the reason for
his failure to comply.
Contrary to his assertion, this requirement is not
violative of the equal protection clause of the
Constitution. Note that payment of the civil
liability is not made a condition precedent to
probation. If it were, then perhaps there might be
some basis to petitioner's assertion that only
moneyed convicts may avail of the benefits of
probation. In this case, however, petitioner's
application for probation had already been
granted. Satisfaction of his civil liability was not
made a requirement before he could avail a
probation, but was a condition for his continued
enjoyment of the same.
The trial court could not have done away with
imposing payment of civil liability as a condition
for probation, as petitioner suggests. This is not
an arbitrary imposition but one required by law.
It is a consequence of petitioner's having been
convicted of a crime, 12 and petitioner is bound to
satisfy this obligation regardless of whether or
not he is placed under probation.
We fail to see why petitioner cannot comply with
a simple order to furnish the trial court with a
program of payment of his civil liability. He

may, indeed, be poor, but this is precisely the


reason why the trial court gave him the chance to
make his own program of payment. Knowing his
own financial condition, he is in the best position
to formulate a program of payment that fits his
needs and capacity.
Petitioner blames his former counsel's
"irresponsible delay" in informing him of the
trial court's order to come up with a program of
payment for his failure to make such a program.
Petitioner wants to take exception to the rule that
notice to counsel is notice to client.
We find no reason to make an exception in this
case. Petitioner's counsel has not been shown to
be grossly irresponsible as to cause prejudice to
petitioner's rights. 13 Moreover, we note that
petitioner later on discovered that such a court
order was received by his counsel. He could have
endeavored to comply with the order then. In the
June 20, 1994 order, he was given 10 days from
receipt of the order within which to comply. The
same period was given him in the order of
August 15, 1994. Petitioner does not claim that
he failed to receive notice of the latter order. In
fact, he submitted a motion for reconsideration
of said order, but still without the required
program of payment.
No justifiable reason has been given by
petitioner for ignoring those two orders. The trial
court could not be faulted for citing him in
contempt for his failure to comply with its
orders. Nor did it abuse gravely its discretion in
issuing said orders. Hence, we are in full
agreement with respondent appellate court's
decision as well.
Moreover, petitioner's continued refusal to
submit a program of payment, along with his
prayer for the deletion of the requirement of
payment of civil liability from his probation
order, creates the impression that he wants to
completely avoid paying his civil liability. This
he cannot do. He cannot escape payment of his
civil liability, with or without a program of
payment.
Petitioner's reliance on Salgado is misplaced. In
that case, the trial court itself formulated the
manner by which Salgado was to satisfy his civil

liability. He was able to comply for a few


months. When he started skipping his payments,
his victim sought the issuance of a writ of
execution to enforce full payment of the civil
liability. The trial court granted this motion and it
was sustained by the Court of Appeals which
ruled that the program of payment amounted to
an amendment of the decision of the trial court
ordering payment of civil liability but without a
program of payment. Since the trial court's
decision had already become final, it can no
longer be amended by imposing a program of
payment, in installments, of the civil liability.
We held in Salgado, that the program of payment
is not an amendment of the decision of the trial
court because it does not increase or decrease the
liability and the obligation to pay is to be
fulfilled during the period of probation.
Unlike in Salgado, herein petitioner was being
asked to make a program of payment. But he
failed to do so. Hence, in this case, there is yet
no program of payment to speak of, because of
petitioner's stubborn refusal and delay as well as
failure to abide by the trial court's orders.
Petitioner's reliance on Baclayon is likewise
misplaced. In that case, what was being assailed
as an unrealistic condition was the trial court's
requirement that petitioner therein, a teacher
convicted of Serious Oral Defamation, refrain
from exercising her profession. This condition
was deemed unreasonable because teaching was
the only profession she knew and it appeared that
she excelled in teaching. No unrealistic condition
similar to the one in Baclayan has been imposed
upon petitioner herein.
As regards the other violations committed by
petitioner, the question of whether or not
petitioner has, indeed, violated the terms and
conditions of his probation is evidently a factual
one which had already been passed upon by both
the trial court and the Court of Appeals. Settled
is the rule in this jurisdiction that findings of fact
of the trial court are entitled to great weight,
more so when they are affirmed by the Court of
Appeals, 14 as in this case.
Besides, petitioner himself admits in his petition
that he is unemployed and only depends on his

parents for support. He can barely support his


family. 15 Petitioner ought to be reminded of
what is incumbent on a probationer, including
those requirements that the trial court may set.
As Section 10 of the Probation Law states:
Sec. 10. Conditions of Probation. . . .
The court may also require the probationer to:
(a) Cooperate with a program of supervision;
(b) Meet his family responsibilities;
(c) Devote himself to a specific employment and
not to change said employment without the prior
written approval of the probation officer
xxx xxx xxx
(e) Pursue a prescribed secular study or
vocational training;
xxx xxx xxx 16
Clearly, these conditions are not whims of the
trial court but are requirements laid down by
statute. They are among the conditions that the
trial court is empowered to impose and the
petitioner, as probationer, is required to follow.
Only by satisfying these conditions may the
purposes of probation be fulfilled. These include
promoting the correction and rehabilitation of an
offender by providing him with individualized
treatment, and providing an opportunity for the
reformation of a penitent offender which might
be less probable if he were to serve a prison
sentence. 16a Failure to comply will result in the
revocation of the order granting probation,
pursuant to the Probation Law:
Sec. 11. Effetivity of Probation Order. A
probation order shall take effect upon its
issuance, at which time the court shall inform the
offender of the consequences thereof and explain
that upon his failure to comply with any of the
conditions prescribed in the said order or his
commission of another offense, he shall serve
the penalty imposed for the offense under which
he was placed on probation." 16b (Emphasis
supplied.)
Probation is not an absolute right. It is a mere
privilege whose grant rests upon the discretion of
the trial court. 17 Its grant is subject to certain
terms and conditions that may be imposed by the
trial court. Having the power to grant probation,
it follows that the trial court also has the power

41

to order its revocation in a proper case and under


appropriate circumstances.
Moreover, having admittedly violated the terms
and conditions of his probation, petitioner cannot
now assail the revocation of his probation.
Regrettably, he has squandered the opportunity
granted him by the trial court to remain outside
prison bars, and must now suffer the
consequences of those aforecited violations.
WHEREFORE, the petition is hereby DENIED
and the assailed decision of the Court of Appeals
in C.A. G.R. SP No. 35550 is AFFIRMED.
SO ORDERED.
Bellosillo, Puno, Mendoza, and Buena, JJ.,
concur.
(15) TUPAY T. LOONG, petitioner, vs.
COMMISSION ON ELECTIONS and
ABDUSAKUR TAN, respondents, YUSOP
JIKIRI, intervenor.
PUNO, JIn a bid to, improve our elections,
Congress enacted R.A. No. 8436 on December
22, 1997 prescribing the adoption of an
automated election system. The new system was
used in the May 11, 1998 regular elections held
in the Autonomous Region in Muslim Mindanao
(ARMM) which includes the Province of Sulu.
Atty. Jose Tolentino, Jr. headed the COMELEC
Task Force to have administrative oversight of
the elections in Sulu.
The voting in Sulu was relatively peaceful and
orderly. 1 The problem started during the
automated counting of votes for the local
officials of Sulu at the Sulu at the Sulu State
College. At about 6 a.m. of May 12, 1998, some
election inspectors and watchers informed Atty.
Tolentino, Jr. of discrepancies between the
election returns and the votes cast for the
mayoralty candidates in the municipality of Pata.
Some ballots picked at random by Atty.
Tolentino, Jr. confirmed that votes in favor of a
mayoralty candidate were not reflected in the
printed election returns. He suspended the
automated counting of ballots in Pata and
immediately communicated the problem to the
technical experts of COMELEC and the

suppliers of the automated machine. After the


consultations, the experts told him that the
problem was caused by misalignment of the
ovals opposite the names of candidates in the
local ballots. They found nothing wrong with the
automated machines. The error was in the
printing of the local ballots, as a consequence of
which, the automated machines failed to read
them correctly. 2
At 12:30 p.m. of the same day, Atty. Tolentino,
Jr. called for an emergency meeting of the local
candidates and the military-police officials
overseeing the Sulu elections. Those who
attended were the various candidates for
governor, namely, petitioner Tupay Loong,
private respondent Abdusakar Tan, intervenor
Yusop Jikiri and Kimar Tulawie. Also in
attendance were Brig. Gen. Edgardo Espinosa,
AFP, Marine forces, Southern Philippines, Brig.
Gen. Percival Subala, AFP, 3rd Marine Brigade,
Supt. Charlemagne Alejandrino, Provincial
Director, Sulu, PNP Command and congressional
candidate Bensandi Tulawie. 3
The meeting discussed how the ballots in Pata
should be counted in light of the misaligned
ovals. There was lack of agreement. Those who
recommended a shift to manual count were Brig.
Generals Espinosa and Subala, PNP Director
Alejandro, gubernational candidates Tan and
Tulawie and congressional candidate Bensandi
Tulawie. Those who insisted on an automated
count were gubernational candidates Loong and
Jikiri. In view of their differences in opinion,
Atty. Tolentino, Jr. requested the parties to
submit their written position papers. 4
Reports that the automated counting of ballots in
other municipalities in Sulu was not working
well were received by the COMELEC Task
Force. Local ballots in five (5) municipalities
were rejected by the automated machines. These
municipalities were Talipao, Siasi, Tudanan,
Tapul and Jolo. The ballots were rejected
because they had the wrong sequence code. 5
Private respondent Tan and Atty. Tolentino, Jr.
sent separate commucations to the COMELEC
en banc in Manila. Still, on May 12, 1998, Tan
requested for the suspension of the automated

counting of ballots throughout the Sulu province.


6
On the same day, COMELEC issued Minute
Resolution No. 98-1747 ordering a manual count
but only in the municipality of Pata. The
resolution reads: 7
xxx xxx xxx
In the matter of the Petition dated May 12, 1998
of Abdusakur Tan, Governor, Sulu, to suspend or
stop counting of ballots through automation (sic)
machines for the following grounds, quoted to
wit:
1. The Election Returns for the Municipality of
Pata, Province of Sulu-District II do not reflect
or reveal the mandate of the voters:
DISCUSSIONS
That the watchers called the attention of our
political leaders and candidates regarding their
discovery that the election returns generated after
the last ballots for a precinct is scanned revealed
that some candidates obtained zero votes, among
others the Provincial Board Members, Mayor,
Vice-Mayor, and the councilors for the LAKASNUCD-UMDP;
That the top ballot, however, reveals that the
ballots contained votes for Anton Burahan,
candidate for Municipal Mayor while the
Election Return shows zero vote;
That further review of the Election Return
reveals that John Masillam, candidate for Mayor
under
the
LAKAS-NUCD-UMDP-MNLF
obtains (sic) 100% votes of the total number of
voters who actually voted;
The foregoing discrepancies were likewise noted
and confirmed by the chairmen, poll clerks and
members of the Board of Election Inspectors
(BEI) such as Rena Jawan, Amkanta Hajirul,
Dulba Kadil, Teddy Mirajuli, Rainer Talcon,
Mike Jupakal, Armina Akmad, Romulo Roldan
and Lerma Amrawali to mention some;
The Pata incident can be confirmed by no less
than Atty. Jose Tolentino, Head, task Force Sulu,
whose attention was called regarding the
discrepancies;
The foregoing is a clear evidence that the
automated machine (scanner) cannot be relied
upon as to truly reflect the contents of the
ballots. If such happened in the Municipality of

Pata, it is very possible that the same is


happening in the counting of votes in the other
municipalities of this province. If this will not be
suspended or stopped, the use of automated
machines will serve as a vehicle to frustrate the
will of the sovereign people of Sulu;
Wherefore, the foregoing premises considered
and in the interest of an honest and orderly
election, it is respectfully prayed of this
Honorable Commission that an Order be issued
immediately suspending or stopping the use of
the automated machine (scanner) in the counting
of votes for all the eighteen (18) municipalities
in the Province of Sulu and in lieu thereof, to
avoid delay, counting be done through the usual
way known tested by us.
While the commission does not agree with the
conclusions stated in the petition, and the failure
of the machine to read votes may have been
occasioned by other factors, a matter that
requires immediate investigation, but in the
public interest, the Commission,
RESOLVED to grant the Petition dated May 12,
1998 and to Order that the counting of votes
shall be done manually in the Municipality of
PATA, the only place in Sulu where the
automated machine failed to read the ballots,
subject to notice to all parties concerned.
Before midnight of May 12, 1998, Atty.
Tolentino, Jr. was able to send to the COMELEC
en banc his report and recommendation, urging
the use of the manual count in the entire
Province of Sulu, viz: 8
The undersigned stopped the counting in the
municipality of Pata since he discovered that
votes for a candidate for mayor was credited in
favor of the other candidate. Verification with the
Sulu Technical Staff, including Pat Squires of ES
& S, reveals that the cause of the errors is the
way the ballot was printed. Aside from
misalignment of the ovals and use of codes
assigned to another municipality (which caused
the rejection of all local ballots in one precinct in
Talipao), error messages appeared on the screen
although the actual condition of the ballots
would have shown a different message. Because
of these, the undersigned directed that counting

42

for all ballots in Sulu be stopped to enable the


Commission to determine the problem and
rectify the same. It is submitted that stopping the
counting is more in consonance with the
Commission's mandate than proceeding with an
automated but inaccurate count.1wphi1.nt
In view of the error discovered in Pata and the
undersigned's order to suspend that counting, the
following documents were submitted to him.
1. Unsigned letter dated May 12, 1998 submitted
by Congressman Tulawie for manual counting
and canvassing;
2. Petition of Governor Sakur Tan for manual
counting;
3. Position paper of Tupay Loong, Benjamin
Loong, and Asani Tamang for automated count;
4. MNLF Position for automated count; and
5. Recommendation of General E.V. Espinosa,
General PM Subala, and PD CS Alejandrino for
manual count;
Additional marines have been deployed at the
SSC. The undersigned is not sure if it is merely
intended to tame a disorderly crowd, inside and
outside SSC, or a show of force.
It is submitted that since an error was discovered
in a machine which is supposed to have an error
rate of 1: 1,000,000, not a few people would
believe that this error in Pata would extend to the
other municipalities. Whether or not this true, it
would be more prudent to stay away from a
lifeless thing that has sown tension and anxiety
among and between the voters of Sulu.
Respectfully submitted:
12 May 1998
(Sgd.) JOSE M. TOLENTINO, JR.
The next day, May 13, 1998, COMELEC issued
Resolution No. 98-1750 approving, Atty.
Tolentino, Jr.'s recommendation and the manner
of its implementation as suggested by Executive
Director Resurrection Z. Borra. The Resolution
reads: 9
In the matter of the Memorandum dated 13 May
1998 of Executive Director Resurrection Z.
Borra, pertinent portion of which is quoted as
follows:
In connection with Min. Res. No. 98-1747
promulgated May 12, 1998 which resolved to

order that the counting of votes shall be done


manually in the municipality of Pata, the only
place in Sulu where the automated counting
machine failed to read the ballots, subject to
notice to all parties concerned, please find the
following:
1. Handwritten Memo of Director Jose M.
Tolentino, Jr., Task Force Head, Sulu, addressed
to the Executive Director on the subject counting
and canvassing in the municipality of Pata due to
the errors of the counting of votes by the
machine brought about by the error in the
printing of the ballot, causing misalignment of
ovals and use of codes assigned to another
municipality.
He recommended to revert to the manual
counting of votes in the whole of Sulu. He
attached the stand of Congressman Tulawie,
Governor Sakur Tan and recommendation of
Brigadier General Edgardo Espinosa, General
Percival Subla, P/Supt. Charlemagne Alejandrino
for manual counting. The position paper of
former Governor Tupay Loong, Mr. Benjamin
Loong and Mr. Asani S. Tammang, who are
candidates for Governor and Congressman of 1st
and 2nd Districts respectively, who wanted the
continuation of the automated counting.
While the forces of AFP are ready to provide arm
(sic) security to our Comelec officials, BEIs and
other deputies, the political tensions and
imminent violence and bloodshed may not be
prevented, as per report received, the MNLF
forces are readying their forces to surround the
venue for automated counting and canvassing in
Sulu in order that the automation process will
continue.
Director Borra recommends, that while he
supports Minute Resolution No. 98-1747,
implementation thereof shall be done as follows:
1. That all the counting machines from Jolo, Sulu
be transported back by C130 to Manila and be
located at the available space at PICC for
purposes of both automated and manual
operations. This approach will keep the
COMELEC officials away from violence and
bloodshed between the two camps who are
determined to slug each other as above

mentioned in Jolo, Sulu. Only authorized


political party and candidate watchers will be
allowed in PICC with proper security, both
inside and outside the perimeters of the venue at
PICC.
2. With this process, there will be an objective
analysis and supervision of the automated and
manual operations by both the MIS and
Technical Expert of the ES & S away from the
thundering mortars and the sounds of
sophisticated heavy weapons from both sides of
the warring factions.
3. Lastly, it will be directly under the close
supervision and control of Commission on
Elections En Banc.
RESOLVED:
1. To transport all counting machines from Jolo,
Sulu by C130 to Manila for purposes of both
automated and manual operations, with notice to
all parties concerned;
2. To authorize the official travel of the board of
canvassers concerned for the conduct of the
automated and manual operations of the counting
of votes at PICC under the close supervision and
control of the Commission En Banc. For this
purpose, to make available a designated space at
the PICC;
3. To authorize the presence of only the duly
authorized representative of the political parties
concerned and the candidates watchers both
outside and inside the perimeters of the venue at
PICC.
Atty. Tolentino, Jr. furnished the parties with
copies of Minute Resolution No. 98-1750 and
called for another meeting the next day, May 14,
1998, to discuss the implementation of the
resolution. 10 The meeting was attended by the
parties, by Lt. Gen. Joselin Nazareno, then Chief
of the AFP Southern Command, the NAMFREL,
media, and the public. Especially discussed was
the manner of transporting the ballots and the
counting machines to the PICC in Manila. They
agreed allow each political party to have at least
one (1) escort/watcher for municipality to
acompany the flight. Two C130s were used for
purpose. 11

On May 15, 1998, the COMELEC en banc


issued Minute Resolution No. 98-1796 laying
down the rules for the manual count, viz: 12
In the matter of the Memorandum dated 15 May
1998 of Executive Director Resurrection Z.
Borra, quoted to wit:
In the implementation of COMELEC Min.
Resolution No. 98-1750 promulgated 13 May
1998 in the manual counting of votes of Pata,
Sulu, and in view of the arrival of the counting
machines, ballot boxes, documents and other
election paraphernalia for the whole province of
Sulu now stored in PICC, as well as the arrival
of the Municipal Board of Canvassers of said
Municipality in Sulu, and after conference with
some members of the Senior Staff and Technical
Committee of this Commission, the following
are hereby respectfully recommended:
1. Manual counting of the local ballots of the
automated election system in Pata, Sulu;
2. Automated counting of the national ballots
considering that there are no questions raised on
the National Elective Officials as pre-printed in
the mark-sensed ballots;
3. The creation of the following Special Boards
of Inspectors under the supervision of Atty. Jose
M. Tolentino, Jr., Task Force Head, Sulu,
namely:
a) Atty. Mamasapunod M. Aguam
Ms. Gloria Fernandez
Ms. Esperanza Nicolas
b) Director Ester L. Villaflor-Roxas
Ms. Celia Romero
Ms. Rebecca Macaraya
c) Atty. Zenaida S. Soriano
Ms. Jocelyn Guiang
Ma. Jacelyn Tan
d) Atty. Erlinda C. Echavia
Ms. Theresa A. Torralba
Ms. Ma. Carmen Llamas
e) Director Estrella P. de Mesa
Ms. Teresita Velasco
Ms. Nelly Jaena
4. Additional Special Board of Inspectors may be
created when necessary.
5. The Provincial Board of Canvassers which by
standing Resolution is headed by the Task Force

43

Sulu Head shall consolidate the manual and


automated results as submitted by the Municipal
Boards of Canvassers of the whole province with
two members composed of Directors Estrella P.
de Mesa and Ester L. Villaflor-Roxas;
6. The political parties and the candidates in Sulu
as well as the Party-List Candidates are
authorized to appoint their own watchers upon
approval of the Commission',
RESOLVED to approve the foregoing
recommendations in the implementation of Min.
Resolution No. 98-1750 promulgated on 13 May
1998 providing for the manual counting of votes
in the municipality of Pata, Sulu.
RESOLVED, moreover, considering the
recommendation of Comm. Manolo B. Gorospe,
Commissioner-In-Charge, ARMM, to conduct a
parallel manual counting on all 18 municipalities
of Sulu as a final guidance of the reliability of
the counting machine which will serve as basis
for the proclamation of the winning candidates
and for future reference on the use of the
automated counting machine.
On May 18, 1998, petitioner filed his objection
to Minute Resolution No. 98-1796, viz: 13
1. The minute resolution under agenda No. 981796 violates the provisions of Republic Act No.
8436 providing for an automated counting of the
ballots in the Autonomous Region in Muslim
Mindanao. The automated counting is mandatory
and could not be substituted by a manual
counting. Where the machines are allegedly
defective, the only remedy provided for by law is
to replace the machine. Manual counting is
prohibited by law;
2. There are strong indications that in the
municipality of Pata the ballots of the said
municipality were rejected by the counting
machine because the ballots were tampered
and/or the texture of the ballots fed to the
counting machine are not the official ballots of
the Comelec;
3. The automated counting machines of the
Comelec have been designed in such a way that
only genuine official ballots could be read and
counted by the machine;

4. The counting machines in the other


municipalities are in order. In fact, the automated
counting has already started. The automated
counting in the municipalities of Lugus and
Panglima Tahil has been completed. There is no
legal basis for the "parallel manual counting"
ordained in the disputed minute resolution.
Nonetheless, COMELEC started the manual
count on the same date, May 18, 1998.
On May 25, 1998, petitioner filed with this Court
a petition for certiorari and prohibition under
Rule 65 of the Rules of Court. He contended
that: (a) COMELEC issued Minute Resolution
Nos. 98-1747, 98-1750, and 98-1798 without
prior notice and hearing to him; (b) the order for
manual counting violated R.A. No. 8436; (c)
manual counting gave "opportunity to the
following election cheatings," namely:
(a) The counting by human hands of the
tampered, fake and counterfeit ballots which the
counting machines have been programmed to
reject (Section 7, 8 & 9 of Rep. Act 8436).
(b) The opportunity to substitute the ballots all
stored at the PICC. In fact, no less than the head
of the COMELEC Task Force of Sulu, Atty. Jose
M. Tolentino, Jr. who recommended to the
COMELEC the anomalous manual counting, had
approached the watchers of petitioners to allow
the retrival of the ballots, saying "tayo, tayo lang
mga watchers, pag-usapan natin," clearly
indicating overtures of possible bribery of the
watchers of petitioner (ANNEX E).
(c) With the creation by the COMELEC of only
22 Boards of Election Inspectors to manually
count the 1,194 precincts, the manipulators are
given sufficient time to change and tamper the
ballots to be manually counted.
(d) There is the opportunity of delaying the
proclamation of the winning candidates through
the usually dilatory moves in a pre-proclamation
controversy because the returns and certificates
of canvass are already human (sic) made. In the
automated counting there is no room for any
dilatory pre-proclamation controversy because
the returns and the MBC and PBC certificates of
canvass are machine made and immediate
proclamation is ordained thereafter.

Petitioner then prayed:


WHEREFORE, it is most especially prayed of
the Honorable Court that:
1. upon filing of this petition, a temporary
restraining order be issued enjoining the
COMELEC from conducting a manual counting
of the ballots of the 1,194 precincts of the 18
municipalities of the Province of Sulu but
instead proceed with the automated counting of
the ballots, [preparation of the election returns
and MBC, PBC certificates of canvass and
proclaim the winning candidates on the basis of
the automated counting and consolidation of
results;
2. this petition be given due course and the
respondents be required to answer;
3. after due hearing, the questioned COMELEC
En Banc Minute Resolutions of May 12, 13, 15,
and 17, 1998 be all declared null and void ab
initio for having been issued without jurisdiction
and/or with grave abuse of discretion amounting
to lack of jurisdiction and for being in violation
of due process of law;
4. the winning candidates of the Province of Sulu
be proclaimed on the basis of the results of the
automated counting, automated election returns,
automated MBC and PBC certificates of
canvass;
xxx xxx xxx
On June 8, 1998, private respondents Tan was
proclaimed governor-elect of Sulu on the basis of
the manual count. 14 Private respondents
garnered 43,573 votes. Petitioner was third with
35,452 votes or a difference of 8,121 votes.
On June 23, 1998, this Court required the
respondents to file their Comment to the petition
and directed the parties "to maintain the status
quo prevailing at the time of the filing of the
petition." 15 The vice-governor elect was allowed
to temporarily discharge the powers and
functions of governor.
On August 20, 1998, Yusop Jikiri, the LAKASNUCD-UMDP-MNLF candidate for governor
filed a motion for intervention and a
Memorandum in Intervention. 16 The result of the
manual count showed he received 38,993 votes
and placed second. Similarly, he alleged denial

of due process, lack of factual basis of the


COMELEC resolutions and illegality of manual
count in light of R.A. No. 8436. The Court noted
his intervention. 17 A similar petition for
intervention filed by Abdulwahid Sahidulla, a
candidate for vice-governor, on October 7, 1998
was denied as it was filed too late.
In due time, the parties filed their respective
Comments. On September 25, 1998, the Court
heard the parties in oral argument 18 which was
followed by the submission of their written
memoranda.
The issues for resolution are the following:
1. Whether or not a petition for certiorari and
prohibition under Rule 65 of the Rules of Court
is the appropriate remedy to invalidate the
disputed COMELEC resolutions.
2. Assuming the appropriateness of the remedy,
whether or not COMELEC committed grave
abuse of discretion amounting to lack of
jurisdiction in ordering a manual count.
2.a. Is there a legal basis for the manual count?
2.b. Are its factual bases reasonable?
2.c. Were the petitioner and the intervenor denied
due process by the COMELEC when it ordered a
manual count?
3. Assuming the manual count is illegal and that
its result is unreliable, whether or not it is proper
to call for a special election for the position of
governor of Sulu.
We shall resolve the issues in seriatim.
First. We hold that certiorari is the proper
remedy of the petitioner. Section 7, Article IX
(A) of the 1987 Constitution states that "unless
provided by this Constitution or by law, any
decision, order or ruling of each Commission
may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty
days from receipt of a copy thereof." We have
interpreted this provision to mean final orders,
rulings and decisions of the powers. 19
Contrariwise, administrative orders of the
COMELEC are not, as a general rule, fit subjects
of a petition for certiorari. The main issue in the
case at bar is whether the COMELEC gravely
abused its discretion when it ordered a manual
count of the 1998 Sulu local elections. A

44

resolution of the issue will involve an


interpretation of R.A. No. 8436 on automated
election in relation to the broad power of the
COMELEC under Section 2(1), Article IX(C) of
the Constitution "to enforce and administer all
laws and regulations relative to the conduct of an
election . . .." The issue is not only legal but one
of first impression and undoubtedly suffered
with significance to the entire nation. It is
adjudicatory of the right of the petitioner, the
private respondents and the intervenor to the
position of governor of Sulu. These are enough
considerations to call for an exercise of the
certiorari jurisdiction of this Court.
Second. The big issue, one of first impression, is
whether the COMELEC committed grave abuse
of discretion amounting to lack of jurisdiction
when it ordered a manual count in light of R.A.
No. 8436. The post election realities on ground
will show that the order for a manual count
cannot be characterized as arbitrary, capricious
or whimsical.
a. It is well established that the automated
machines failed to read correctly the ballots in
the municipality of Pata. A mayoralty candidate,
Mr. Anton Burahan, obtained zero votes despite
the representations of the Chairman of the Board
of Election Inspectors and others that they voted
for him. Another candidate garnered 100% of the
votes.
b. It is likewise conceded that the automated
machines rejected and would not count the local
ballots in the municipalities of Pata, Talipao,
Siasi, Indanan, Tapal and Jolo.
c. These flaws in the automated counting of local
ballots in the municipalities of Pata, Talipao,
Siasi, Indanan, Tapal and Jolo were carefully
analyzed by the technical experts of COMELEC
and the supplier of the automated machines. All
of them found nothing wrong the automated
machines. They traced the problem to the
printing of local ballots by he National Printing
Office. In the case of the of the municipality of
Pata, it was discovered that the ovals of the local
ballots were misaligned and could not be read
correctly by the automated machines. In the case
of the municipalities of Talipao, Siasi, Indanan,

Tapal and Jolo, it turned out that the local ballots


contained the wrong sequence code. Each
municipality was assigned a sequence code as a
security measure. Ballots with the wrong
sequence code were programmed to be rejected
by the automated machines.
It is plain that to continue with the automated
count in these five (5) municipalities would
result in a grossly erroneous count. It cannot also
be gainsaid that the count in these five (5)
municipalities will affect the local elections in
Sulu. There was no need for more sampling of
locals ballots in these municipalities as they
suffered from the same defects. All local ballots
in Pata with misaligned ovals will be erroneously
read by the automated machines. Similarly, all
local ballots in Talipao, Siasi, Indanan, Tapal and
Jolo with wrong sequence codes are certain to be
rejected by the automated machines. There is no
showing in the records that the local ballots in
these five (5) municipalities are dissimilar which
could justify the call for their greater sampling.
Third. These failures of automated counting
created post election tension in Sulu, a province
with a history of violent elections. COMELEC
had to act desively in view of the fast
deteriorating peace and order situation caused by
the delay in the counting of votes. The evidence
of this fragile peace and order cannot be
downgraded. In his handwritten report to the
COMELEC dated May 12, 1998, Atty. Tolentino,
Jr. stated:
xxx xxx xxx
Additional marines have been deployed at the
SSC. The undersigned is not sure if it is merely
intended to tame a disorderly crowd inside and
outside SSC, or a show of force.
It is submitted that since an error was discovered
in a machine which is supposed to have an error
rate of 1:1,000,000, not a few people would
believe that this error in Pata would extend to the
other municipalities. Whether or not this is true,
it would be more prudent to stay away from a
lifeless thing that has shown tension and anxiety
among and between the voters of Sulu.

Executive Director Resurreccion Z. Borra, Task


Force Head, ARMM in his May 13, 1998
Memorandum to the COMELEC likewise stated:
xxx xxx xxx
While the forces of AFP are ready to provide arm
(sic) security to our COMELEC officials, BEI's
and other deputies, the political tensions and
imminent violence and bloodshed may not be
prevented, as per report received, the MNLF
forces are readying their forces to surround the
venue for automated counting and canvassing in
Sulu in order that automation process will
continue.
Last but not the least, the military and the police
authorities unanimously recommended manual
counting to preserve peace and order. Brig. Gen.
Edgardo V. Espinosa, Commanding General,
Marine Forces Southern Philippines, Brig. Gen.
Percival M. Subala, Commanding General, 3rd
Marine Brigade, and Supt. Charlemagne S.
Alejandrino, Provincial Director, Sulu PNP
Command explained that it". . . will not only
serve the interest of majority of the political
parties involved in the electoral process but also
serve the interest of the military and police
forces in maintaining peace and order throughout
the province of Sulu."
An automated count of the local votes in Sulu
would have resulted in a wrong count, a travesty
of the sovereignty of the electorate. Its aftermath
could have been a bloodbath. COMELEC
avoided this imminent probality by ordering a
manual count of the votes. It would be the height
of irony if the Court condemns COMELEC for
aborting violence in the Sulu elections.
Fourth. We also find that petitioner Loong and
intervenor Jikiri were not denied process. The
Tolentino memorandum clearly shows that they
were given every opportunity to oppose the
manual in count of the local ballots in Sulu. They
were orally heard. They later submitted written
position papers. Their representatives escorted
the transfer of the ballots and the automated
machines from Sulu to Manila. Their watchers
observed the manual count from beginning to
end. We quote the Tolentino memorandum, viz:
xxx xxx xxx

On or about 6:00 a.m. of May 12, 1998, while


automated counting of all the ballots for the
province of Sulu was being conducted at the
counting center located at the Sulu State College,
the COMELEC Sulu Task Force Head (TF Head)
proceeded to the room where the counting
machine assigned to the municipality of Pata was
installed to verify the cause of the commotion
therein.
During the interview conducted by the TF Head,
the members of the Board of Election Inspectors
(BEI) and watchers present in said room stated
that the counting machine assigned to the
municipality of Pata did not reflect the true
results of the voting thereat. The members of the
BEI complained that their votes were not
reflected in the printout of the election returns
since per election returns of their precincts, the
candidate they voted for obtained "zero". After
verifying the printout of some election returns as
against the official ballots, the TF Head
discovered that votes cast in favor of a mayoralty
candidate were credited in favor of his opponent.
In his attempt to remedy the situation, the TF
Head suspended the counting of all ballots for
said municipality to enable COMELEC field
technicians to determine the cause of the
technical error, rectify the same, and thereafter
proceed with automated counting. In the
meantime, the counting of the ballots for the
other municipalities proceeded under the
automated system.
Technical experts of the supplier based in Manila
were informed of the problem and after
numerous consultations through long distance
calls, the technical experts concluded that the
cause of the error was in the manner the ballots
for local positions were printed by the National
Printing Office (NPO), namely, that the ovals
opposite the names of the candidates were not
properly aligned. As regards the ballots for
national positions, no error was found.
Since the problem was not machine-related, it
was obvious that the use of counting machines
from other municipalities to count the ballots of
the municipality of Pata would still result in the
same erroneous count. Thus, it was found

45

necessary to determine the extent of the error in


the ballot printing process before proceeding
with the automated counting.
To avoid a situation where proceeding with
automation will result in an erroneous count, the
TF Head, on or about 11:45 a.m. ordered the
suspension of the counting of all ballots in the
province to enable him to call a meeting with the
heads of the political parties which fielded
candidates in the province, inform them of the
technical error, and find solutions to the problem.
On or about 12:30 p.m., the TF Head presided
over a conference at Camp General Bautista (3rd
Marine Brigade) to discuss the process by which
the will of the electorate could be determined.
Present during the meeting were:
1. Brig. Gen. Edgardo Espinoza
Marine Forces, Southern Philippines.
2. Brig. Gen. Percival Subala
3rd Marine Brigade
3. Provincial Dir. Charlemagne Alejandrino
Sulu PNP Command
4. Gubernatorial Candidate Tupay Loong
LAKAS-NUCD Loong Wing
5. Gubernatorial Candidate Abdusakur Tan
LAKAS-NUCD Tan Wing
6. Gubernatorial Candidate Yusop Jikiri
LAKAS-NUCD Tan Wing
7. Gubernatorial Candidate Kimar Tulawie
LAMMP
8. Congressional Candidate Bensaudi Tulawie
LAMMP
During said meeting, all of the above parties
verbally advanced their respective positions.
Those in favor of a manual count were:
1. Brig. Gen. Edgardo Espinoza
2. Brig. Gen. Percival Subala
3. Provincial Dir. Charlemagne Alejandrino
4. Gubernatorial Candidate Abdusakur Tan
5. Gubernatorial Candidate Kimar Tulawie
6. Congressional Candidate Bensaudi Tulawie
and those in favor of an automated count were:
1. Gubernatorial Candidate Tupay Loong
2. Gubernatorial Candidate Yusop Jikiri
Said parties were then requested by the TF Head
to submit their respective position papers so that
the same map be forwarded to the Commission

en banc, together with the recommendations of


the TF Head.
The TF Head returned to the counting center at
the Sulu State College and called his technical
staff to determine the extent of the technical
error and to enable him to submit the appropriate
recommendation to the Commission en banc.
Upon consultation with the technical staff, it was
discovered that in the Municipality of Talipao,
some of the local ballots were rejected by the
machine. Verification showed that while the
ballots were genuine, ballot paper bearing a
wrong "sequence code" was used by the NPO
during the printing process.
Briefly, the following is the manner by which a
"sequence code" determined genuineness of a
ballot. A municipality is assigned a specific
(except for Jolo, which assigned two (2)
machines, and sharing of one (1) machine by two
(2) municipalities, namely, H.P. Tahil and
Maimbung, Apandami and K. Caluang, Pata and
Tongkil and Panamao and Lugus). A machine is
then assigned a specific "sequence code" as one
of the security features to detect whether the
ballots passing through it are genuine. Since a
counting machine is programmed to read the
specific "sequence code" assigned to it, ballots
which bear a "sequence code" assigned to
another machine/municipality, even if said
ballots were genuine will be rejected by the
machine.
Other municipalities, such as Siasi, Indanan,
Tapul and Jolo also had the same problem of
rejected ballots. However, since the operators
were not aware that one of the reasons for
rejection of ballots is the use of wrong "sequence
code", they failed to determine whether the cause
for rejection of ballots for said municipalities
was the same as that for the municipality of
Talipao.
In the case of "misaligned ovals", the counting
machine will not reject the ballot because all the
security features, such as "sequence code", are
present in the ballot, however, since the oval is
misaligned or not placed in its proper position,
the machine will credit the shaded oval for the
position where the machine is programmed to

"read" the oval. Thus, instead of rejecting the


ballot, the machine will credit the votes of a
candidate in favor of his opponent, or in the
adjacent space where the oval should be properly
placed.
It could not be determined if the other
municipalities also had the same technical error
in their official ballots since the "misaligned
ovals" were discovered only after members of
the Board of Election Inspectors of the
Municipality of Pata complained that their votes
were not reflected in the printout of the election
results.
As the extent or coverage of the technical errors
could not be determined, the TF Head, upon
consultation with his technical staff, was of the
belief that it would be more prudent to count the
ballots manually than to proceed with an
automated system which will result in an
erroneous count.
The TF Head thus ordered the indefinite
suspension of counting of ballots until such time
as the Commission shall have resolved the
petition/position papers to be submitted by the
parties. The TF Head and his staff returned to
Camp General Bautista to await the submission
of the position papers of the parties concerned.
Upon receipt of the position papers of the parties,
the TF Head faxed the same in the evening of
May 12, 1998, together with his handwritten
recommendation to proceed with a manual count.
Attached are copies of the recommendations of
the TF Head (Annex "1"), and the position
papers of the Philippine Marines and Philippine
National Police (Annex "2"), LAKAS-NUCD
Tan Wing Annex (Annex "3"), Lakas-NUCD
Loong Wing (Annex "4"), LAKAS-NUCDMNLF Wing (Annex "5") and LAMMP (Annex
"6"). Said recommendations and position papers
were the bases for the promulgation of
COMELEC Minute Resolution No. 98-1750
dated May 13, 1998 (Annex "7"), directing,
among other things, that the ballots and counting
machines be transported by C130 to Manila for
both automated and manual operations.
Minute Resolution No. 98-1750 was received by
the TF Head through fax on or about 5:30 in the

evening of May 13, 1998. Copies were then


served through personal delivery to the heads of
the political parties, with notice to them that
another conference will be conducted at the 3rd
Marine Brigade on May 14, 1998 at 9:00 o'clock
in the morning, this time, with Lt. General
Joselin Nazareno, then AFP Commander,
Southern Command. Attached is a copy of said
notice (Annex "8") bearing the signatures of
candidates Tan (Annex "8-A") and Loong
(Annex "8-B") and the representatives of
candidates Tulawie (Annex "8-C") and Jikiri
(Annex "8-D").
On May 14, 1998, the TF Head presided over
said conference in the presence of the heads of
the political parties of Sulu, together with their
counsel, including Lt. Gen. Nazareno, Brig. Gen.
Subala, representatives of the NAMFREL, media
and the public.
After hearing the sides of all parties concerned,
including that of NAMFREL, the procedure by
which the ballots and counting machines were to
be transported to Manila was finalized, with each
political party authorized to send at least one (1)
escort/watcher for every municipality to
accompany the ballot boxes and counting
machines from the counting center at the Sulu
State College to the Sulu Airport to the PICC,
where the COMELEC was then conducting its
Senatariol Canvass. There being four parties, a
total of seventy-two (72) escorts/watchers
accompanied the ballots and counting machines.
Two C130s left Sulu on May 15, 1998 to
transport all the ballot boxes and counting
machines, accompanied by all the authorized
escorts. Said ballots boxes reached the PICC on
the same day, with all escorts/watchers allowed
to station themselves at the ballot box storage
area. On May 17, 1998, another C130 left Sulu
to ferry the members of the board of canvassers.
Fifth. The evidence is clear that the integrity of
the local ballots was safeguarded when they were
transferred from Sulu to Manila and when they
were manually counted.
A shown by the Tolentino memorandum,
representatives of the political parties escorted
the transfer of ballots from Sulu to PICC. Indeed,

46

in his May 14, 1992 letter to Atty. Tolentino, Jr.,


petitioner Tupay Loong himself submitted the
names of his representative who would company
the ballot boxes and other election paraphernalia,
viz: 20
Dear Atty. Tolentino:
Submitted herewith are the names of escort(s) to
accompany the ballot boxes and other election
pharaphernalia to be transported to COMELEC,
Manila, to wit:
1. Jolo Joseph Lu
2. Patikul Fathie B. Loong
3. Indanan Dixon Jadi
4. Siasi Jamal Ismael
5. K. Kaluang Enjimar Abam
6. Pata Marvin Hassan
7. Parang Siyang Loong
8. Pangutaran Hji. Nasser Loong
9. Marunggas Taib Mangkabong
10. Luuk Jun Arbison
11. Pandami Orkan Osman
12. Tongkil Usman Sahidulla
13. Tapul Alphawanis Tupay
14. Lugus Patta Alih
15. Maimbong Mike Bangahan
16. P. Estino Yasir Ibba
17. Panamso Hamba Loong
18. Talipao Ismael Sali
Hoping for your kind and (sic) consideration for
approval on this matter.
Thank you.
Very truly yours,
(Sgd.) Tupay T. Loong
(sgd.) Asani S. Tammang
The ballot boxes were consistently under the
watchful eyes of the parties representatives. They
were placed in an open space at the PICC. The
watchers stationed themselves some five (5)
meters away form the ballot boxes. They
watched 24 hours a day and slept at the PICC. 21
The parties' watchers again accompanied the
transfer of the ballot boxes from PICC to the
public schools of Pasay City where the ballots
were counted. After the counting, they once more
escorted the return of the ballot boxes to
PICC. 22

In fine, petitioner's charge that the ballots could


have been tampered with before the manual
counting is totally unfounded.
Sixth. The evidence also reveals that the result of
the manual count is reliable.
It bears stressing that the ballots used in the case
at bar were specially made to suit an automated
election. The ballots were uncomplicated. They
had fairly large ovals opposite the names of
candidates. A voter needed only to check the oval
opposite the name of his candidate. When the
COMELEC ordered a manual count of the votes,
it issued special rules as the counting involved a
different kind of ballot, albeit, more simple
ballots. The Omnibus Election Code rules on
appreciation of ballots cannot apply for they only
apply to elections where the names of candidates
are handwritten in the ballots. The rules were
spelled out in Minute Resolution 98-1798, viz: 23
In the matter of the Memorandum dated 17 May
1998 of Executive Director Resurreccion Z.
Borra, reprocedure of the counting of votes for
Sulu for the convening of the Board of Election
Inspectors, the Municipal Board of Canvassers
and the Provincial Board on May 18, 1998 at
9:00 a.m. at the Philippine International
Convention Center (PICC).
RESOLVED to approve the following procedure
for the counting of votes for Sulu at the PICC:
I. Common Provisions:
1. Open the ballot box, retrieve the Minutes of
Voting and the uncounted ballots or the envelope
containing the counted ballots as the case may
be;
2. Segregate the national ballots from the local
ballots;
3. Count the number of pieces of both the
national and local ballots and compare the same
with the number of votes who actually voted as
stated in the Minutes of Voting:
If there is no Minutes of Voting, refer to the
Voting Records at the back of the VRRs to
determine the number of voters who actually
voted.
If there are more ballots than the number of
voters who actually voted, the poll clerk shall
draw out as many local and national ballots as

may be equal to the excess and place them in the


envelope for excess ballots.
II. Counting of Votes
A. National Ballots:
1. If the national ballots have already been
counted, return the same inside the envelope for
counted ballots, reseal and place the envelope
inside the ballot box;
2. If the national ballots have not yet been
counted, place them inside an envelope and give
the envelope through a liaison officer to the
machine operator concerned for counting and
printing of the election returns;
3. The machine operator shall affix his signature
and thumbmark thereon, and return the same to
the members of the BEI concerned for their
signatures and thumbmarks;
4. The said returns shall then be placed in
corresponding envelopes for distribution;
B. Local Ballots:
1. Group the local ballots in piles of fifty (50);
2. The Chairman shall read the votes while the
poll clerk and the third member shall
simultaneously accomplish the election returns
and the tally board respectively.
If the voters shaded more ovals than the number
of positions to be voted for, no vote shall be
counted in favor of any candidate.
3. After all the local ballots shall have been
manually counted, the same shall be given to the
machine operator concerned for counting by the
scanning machine. The machine operator shall
then save the results in a diskette and print out
the election returns for COMELEC reference.
4. The BEI shall accomplish the certification
portion of the election returns and announce the
results;
5. Place the election returns in their respective
envelopes and distribute them accordingly;
6. Return all pertinent election documents and
paraphernalia inside the ballot box.
III. Consolidation of Results
A. National Ballots
1. The results of the counting for the national
ballots for each municipality shall be
consolidated by using the ERs of the automated
election system;

2. After the consolidation, the Machine Operator


shall print the certificate of canvass by
municipality and statement of votes by precinct;
3. To consolidate the provincial results, the MO
shall load all the diskettes used in the scanner to
the ERs;
4. The MO shall print the provincial certificate of
canvass and the SOV by municipality;
5. In case there is system failure in the counting
and/or consolidation of the results, the
POBC/MOBC
shall revert
to manual
consolidation.
B. Local Ballots
1. The consolidation of votes shall be done
manually by the Provincial/Municipal Board of
Canvassers;
2. The proclamation of winning candidates shall
be based manual consolidation.
RESOLVED, moreover that the pertinent
provisions of COMELEC Resolution Nos. 2971
and 3030 shall apply.
Let the Executive Director implement this
resolution.
As aforestated, five (5) Special Boards were
initially created under Atty. Tolentino, Jr. to
undertake the manual counting, 24 viz:
a) Atty. Mamasapunod M. Aguam
Ms. G1oria Fernandez
Ms. Esperanza Nicolas
b) Director Ester L. Villaflor-Roxas
Ms. Celia Romero
Ms. Rebecca Macaraya
c) Atty. Zenaida S. Soriano
Ms. Jocelyn Guiang
Ma. Jocelyn Tan
d) Atty. Erlinda C. Echavia
Ms. Teresa A. Torralba
Ms. Ma. Carmen Llamas
e) Director Estrella P. de Mesa
Ms. Teresita Velasco
Ms. Nelly Jaena
Later, the COMELEC utilized the services of
600 public school teachers from Pasay City to do
the manual counting. Five (5) elementary schools
served as the venues of the counting, viz: 25

47

1. Gotamco Elementary School, Gotamco Street,


Pasay City for the municipalities of Indanan,
Pangutaran, Panglima Tahil, Maimbung;
2. Zamora Elementary School, Zamora Street,
Pasay City for the municipalities of Jolo,
Talipao, Panglima Estino, and Tapul;
3. Epifanio Elementary School, Tramo Street,
Pasay City for the municipalities of Parang,
Lugus, Panamao;
4. Burgos Elementary School, Burgos Street,
Pasay City for the municipalities of Luuk and
Tongkil;
5. Palma Elementary School for the
municipalities of Siasi and Kalingalang Caluang.
From beginning to end, the manual counting was
done with the watchers of the parties concerned
in attendance. Thereafter, the certificates of
canvass were prepared and signed by the
City/Municipal Board of Canvassers composed
of the Chairman, Vice-Chairman, and Secretary.
They were also signed by the parties' watchers. 26
The correctness of the manual count cannot
therefore be doubted. There was no need for an
expert to count the votes. The naked eye could
see the checkmarks opposite the big ovals.
Indeed, nobody complained that the votes could
not be read and counted. The COMELEC
representatives had no difficulty counting the
votes. The 600 public school teachers of Pasay
City had no difficulty. The watchers of the
parties had no difficulty. Petitioner did not object
to the rules on manual count on the ground that
the ballots cannot be manually counted. Indeed,
in his original Petition, petitioner did not
complain that the local ballots could not be
counted by a layman. Neither did the intervenor
complain in his petition for intervention. The
allegation that it will take a trained eye to read
the ballots is more imagined than real.
This is not all. As private respondent Tan alleged,
the manual count could not have been
manipulated in his favor because the results
shows that most of his political opponents won.
Thus, "the official results show that the two
congressional seats in Sulu were won by
Congressman Hussin Amin of the LAKASMNLF Wing for the 1st District and

Congressman Asani Tammang of the LAKASLoong Wing for the 2nd District. In the
provincial level, of the eight (8) seats for the
Sangguniang Panlalawigan, two (2) were won by
the camp of respondent Tan; three (3) by the
camp of petitioner Loong; two (2) by the MNLF;
and one (1) by LAMMP. In the mayoral race,
seven (7) out of eighteen (18) victorious
municipal mayors were identified with
respondent Tan; four (4) with petitioner Loong;
three (3) with the MNLF; two (2) with LAMMP
and one (1) with REPORMA. 27 There is logic to
private respondent Tan's contention that if the
manual count was tampered, his candidates
would not have miserably lost.1wphi1.nt
Seventh. We further hold that petitioner cannot
insist on automated counting under R.A. No.
8436 after the machines misread or rejected the
local ballots in five (5) municipalities in Sulu.
Section 9 of R.A. No. 8436 provides:
Sec. 9. Systems Breakdown in the Counting
Center. In the event of a systems breakdown
of all assigned machines in the counting center,
the Commission shall use any available machine
or any component thereof from another
city/municipality upon approval of the
Commission En Banc or any of its divisions.
The transfer of such machines or any component
thereof shall be undertaken in the presence of
representatives of political parties and citizens'
arm of the Commission who shall be notified by
the election officer of such transfer.
There is a systems breakdown in the counting
center when the machine fails to read the ballots
or fails to store/save results or fails to print the
results after it has read the ballots; or when the
computer fails to consolidate election
results/reports or fails to print election resultsreports after consolidation.
As the facts show, it was inutile for the
COMELEC to use other machines to count the
local votes in Sulu. The errors in counting were
due to the misprinting of ovals and the use of
wrong sequence codes in the local ballots. The
errors were not machine-related. Needless to
state, to grant petitioner's prayer to continue the
machine count of the local ballots will certainly

result in an erroneous count and subvert the will


of the electorate.
Eighth. In enacting R.A. No. 8436, Congress
obviously failed to provide a remedy where the
error in counting is not machine-related for
human foresight is not all-seeing. We hold,
however, that the vacuum in the law cannot
prevent the COMELEC from levitating above
the problem. Section 2(1) of Article IX(C) of the
Constitution gives the COMELEC the broad
power "to enforce and administer all laws and
regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall."
Undoubtedly, the text and intent of this provision
is to give COMELEC all the necessary and
incidental powers for it to achieve the objective
of holding free, orderly, honest, peaceful, and
credible elections. Congruent to this intent, this
Court has not been niggardly in defining the
parameters of powers of COMELEC in the
conduct of our elections. Thus, we held in
Sumulong v. COMELEC: 28
Politics is a practical matter, and political
questions must be dealt with realistically not
from the standpoint of pure theory. The
Commission on Elections, because of its factfinding facilities, its contacts with political
strategists, and its knowledge derived from
actual experience in dealing with political
controversies, is in a peculiarly advantageous
position
to
decide
complex
political
questions . . .. There are no ready made formulas
for solving public problems. Time and
experience are necessary to evolve patterns that
will serve the ends of good government. In the
matter of the administration of laws relative to
the conduct of election, . . . we must not by any
excessive zeal take away from the Commission
on Elections the initiative which by
constitutional and legal mandates properly
belongs to it.
In the case at bar, the COMELEC order for a
manual count was not reasonable. It was the only
way to count the decisive local votes in the six
(6) municipalities of Pata, Talipao, Siasi,
Tudanan, Tapul and Jolo. The bottom line is that
by means of the manual count, the will of the

voters of Sulu was honestly determined. We


cannot kick away the will of the people by giving
a literal interpretation to R.A. 8436. R.A. 8436
did not prohibit manual counting when machine
count does not work. Counting is part and parcel
of the conduct of an election which is under the
control and supervision of the COMELEC. It
ought to be self-evident that the Constitution did
not envision a COMELEC that cannot count the
result of an election.
Ninth. Our elections are not conducted under
laboratory conditions. In running for public
offices, candidates do not follow the rules of
Emily Post. Too often, COMELEC has to make
snap
judgments
to
meet
unforeseen
circumstances that threaten to subvert the will of
our voters. In the process, the actions of
COMELEC may not be impeccable, indeed, may
even be debatable. We cannot, however, engage
in a swivel chair criticism of these actions often
taken under very difficult circumstances. Even
more, we cannot order a special election unless
demanded by exceptional circumstances. Thus,
the plea for this Court to call a special election
for the governorship of Sulu is completely offline. The plea can only be grounded on failure of
election. Section 6 of the Omnibus Election
Code tells us when there is a failure of election,
viz:
Sec. 6. Failure of election. If, on account of
force majeure, terrorism, fraud, or other
analogous causes, the election in any polling
place has not been held on the date fixed, or had
been suspended before the hour fixed by law for
the closing of the voting, or after the voting and
during the preparation and the transmission of
the election returns or in the custody or canvass
thereof, such election results in a failure to elect,
and in any of such cases the failure or suspension
of election would affect the result of the election,
the Commission shall on the basis of a verified
petition by any interested party and after due
notice and hearing, call for the holding or
continuation of the election, not held, suspended
or which resulted in a failure to elect but not later
than thirty days after the cessation of the cause of

48

such postponement or suspension of the election


or failure to elect.
To begin with, the plea for a special election
must be addressed to the COMELEC and not to
this Court. Section 6 of the Omnibus Election
Code should be read in relation to Section 4 of
R.A. No. 7166 which provides:
Sec. 4. Postponement, Failure of Election and
Special Elections. The postponement,
declaration of failure of elections and the calling
of special elections as provided in Sections 5, 6,
and 7 of the Omnibus Election Code shall be
decided by the Commission en banc by a
majority vote of its members. The causes for the
declaration of a failure of election may occur
before or after casting of votes or on the day of
the election.
The grounds for failure of election force
majeure, terrorism, fraud or other analogous
causes clearly involve questions of fact. It is
for this reason that they can only be determined
by the COMELEC en banc after due notice and
hearing to the parties. In the case at bar,
petitioner never asked the COMELEC en banc to
call for a special election in Sulu. Even his
original petition with this Court, petitioner did
not pray for a special election. His plea for a
special election is a mere afterthought. Too late
in the day and too unprocedural. Worse, the
grounds for failure of election are inexistent. The
records show that the voters of Sulu were able to
cast their votes freely and fairly. Their votes
were counted correctly, albeit manually. The
people have spoken. Their sovereign will has to
be obeyed.
There is another reason why a special election
cannot be ordered by this Court. To hold a
special election only for the position of Governor
will be discriminatory and will violate the right
of private respondent to equal protection of the
law. The records show that all elected officials in
Sulu have been proclaimed and are now
discharging their powers and duties. Thus, two
(2) congressmen, a vice-governor, eight (8)
members of the Sangguniang Panlalawigan and
eighteen (18) mayors, numerous vice-mayors
and municipal councilors are now serving in

their official capacities. These officials were


proclaimed on the basis of the same manually
counted votes of Sulu. If manual counting is
illegal, their assumption of office cannot also be
countenanced. Private respondent's election
cannot be singled out as invalid for alikes cannot
be treated unalikes.
A final word. Our decision merely reinforces our
collective efforts to endow COMELEC with
enough power to hold free, honest, orderly and
credible elections. A quick flashback of its
history is necessary lest our efforts be lost in the
labyrinth of time.
The COMELEC was organized under
Commonwealth Act No. 607 enacted on August
22, 1940. The power to enforce our election laws
was originally vested in the President and
exercised through the Department of Interior.
According to Dean Sinco, 29 the view ultimately
that an independent body could better protect the
right of suffrage of our people. Hence, the
enforcement of our election laws, while an
executive power, was transferred to the
COMELEC.
From a statutory creation, the COMELEC was
transformed to a constitutional body by virtue of
the 1940 amendments to the 1935 Constitution
which took effect on December 2, 1940.
COMELEC was generously granted the power to
"have exclusive charge of the enforcement and
administration of all laws relative to the conduct
of elections . . .. 30
Then came the 1973 Constitution. It further
broadened the powers of COMELEC by making
it the sole judge of all election contests relating
to the election, returns and qualifications of
members of the national legislature and elective
provincial and city officials. 31 In fine, the
COMELEC was given judicial power aside from
its traditional administrative and executive
functions.
The 1987 Constitution quickened this trend of
strengthening
the
COMELEC.
Today,
COMELEC enforces and administers all laws
and regulations relative to the conduct of
elections, plebiscites, initiatives, referenda and
recalls. Election contests involving regional,

provincial and city elective officials are under its


exclusive original jurisdiction. All contests
involving elective municipal and barangay
officials are under its appellate jurisdiction. 32
Our decisions have been in cadence with the
movement towards empowering the COMELEC
in order that it can more effectively perform its
duty of safeguarding the sanctity of our
elections. In Cauton vs. COMELEC, 33 we laid
down this liberal approach, viz:
xxx xxx xxx
The purpose of the Revised Election Code is to
protect the integrity of elections and to suppress
all evils that may violate its purity and defeat the
will of the voters. The purity of the elections is
one of the most fundamental requisites of
popular government. The Commission on
Elections, by constitutional mandate, must do
everything in its power to secure a fair and
honest canvass of the votes cast in the elections.
In the performance of its duties, the Commission
must be given a considerable latitude in adopting
means and methods that will insure the
accomplishment of the great objective for which
it was created to promote free, orderly, and
honest elections. The choice of means taken by
the Commission on Elections, unless they are
clearly illegal or constitute grave abuse of
discretion, should not be interfered with.
In Pacis vs. COMELEC, 34 we reiterated the
guiding principle that "clean elections control the
appropriateness of the remedy." The dissent, for
all its depth, is out of step with this movement. It
condemns COMELEC for exercising its
discretion to resort to manual count when this
was its only viable alternative. It would set aside
the results of the manual count even when the
results are free from fraud and irregularity.
Worse, it would set aside the judgment of the
people electing the private respondent as
Governor. Upholding the sovereignty of the
people is what democracy is all about. When the
sovereignty of the people expressed thru the
ballot is at stake, it is not enough for this Court
to make a statement but it should do everything
have that sovereignty obeyed by all. Well done is
always better than well said.

IN VIEW WHEREOF, the petition of Tupay


Loong and the petition in intervention of Yusop
Jikiri are dismissed, there being no showing that
public respondent gravely abused its discretion
in issuing Minute Resolution Nos. 98-1748, 981750, 98-1796 and 98-1798. Our status quo
order of June 23, 1998 is lifted. No costs.
SO ORDERED.
INTERNATIONAL SCHOOL ALLIANCE
OF EDUCATORS (ISAE), petitioner,
vs.
HON. LEONARDO A. QUISUMBING in his
capacity as the Secretary of Labor and
Employment; HON. CRESENCIANO B.
TRAJANO in his capacity as the Acting
Secretary of Labor and Employment; DR.
BRIAN MACCAULEY in his capacity as the
Superintendent of International SchoolManila; and INTERNATIONAL SCHOOL,
INC., respondents.
KAPUNAN, J.:
Receiving salaries less than their counterparts
hired abroad, the local-hires of private
respondent School, mostly Filipinos, cry
discrimination. We agree. That the local-hires are
paid more than their colleagues in other schools
is, of course, beside the point. The point is that
employees should be given equal pay for work of
equal value. That is a principle long honored in
this jurisdiction. That is a principle that rests on
fundamental notions of justice. That is the
principle we uphold today.1wphi1.nt
Private respondent International School, Inc. (the
School, for short), pursuant to Presidential
Decree 732, is a domestic educational institution
established primarily for dependents of foreign
diplomatic personnel and other temporary
residents.1 To enable the School to continue
carrying out its educational program and
improve its standard of instruction, Section 2(c)
of the same decree authorizes the School to
employ its own teaching and management
personnel selected by it either locally or abroad,
from Philippine or other nationalities, such
personnel being exempt from otherwise
applicable laws and regulations attending their

49

employment, except laws that have been or will


be enacted for the protection of employees.
Accordingly, the School hires both foreign and
local teachers as members of its faculty,
classifying the same into two: (1) foreign-hires
and (2) local-hires. The School employs four
tests to determine whether a faculty member
should be classified as a foreign-hire or a local
hire:
a. What is one's domicile?
b. Where is one's home economy?
c. To which country does one owe economic
allegiance?
d. Was the individual hired abroad specifically to
work in the School and was the School
responsible for bringing that individual to the
Philippines?2
Should the answer to any of these queries point
to the Philippines, the faculty member is
classified as a local hire; otherwise, he or she is
deemed a foreign-hire.
The School grants foreign-hires certain benefits
not accorded local-hires.1avvphi1 These include
housing, transportation, shipping costs, taxes,
and home leave travel allowance. Foreign-hires
are also paid a salary rate twenty-five percent
(25%) more than local-hires. The School justifies
the difference on two "significant economic
disadvantages" foreign-hires have to endure,
namely: (a) the "dislocation factor" and (b)
limited tenure. The School explains:
A foreign-hire would necessarily have to uproot
himself from his home country, leave his family
and friends, and take the risk of deviating from a
promising career path all for the purpose of
pursuing his profession as an educator, but this
time in a foreign land. The new foreign hire is
faced with economic realities: decent abode for
oneself and/or for one's family, effective means
of transportation, allowance for the education of
one's children, adequate insurance against illness
and death, and of course the primary benefit of a
basic salary/retirement compensation.
Because of a limited tenure, the foreign hire is
confronted again with the same economic reality
after his term: that he will eventually and
inevitably return to his home country where he

will have to confront the uncertainty of obtaining


suitable employment after along period in a
foreign land.
The compensation scheme is simply the School's
adaptive measure to remain competitive on an
international level in terms of attracting
competent professionals in the field of
international education.3
When negotiations for a new collective
bargaining agreement were held on June 1995,
petitioner International School Alliance of
Educators, "a legitimate labor union and the
collective bargaining representative of all faculty
members"4 of the School, contested the
difference in salary rates between foreign and
local-hires. This issue, as well as the question of
whether foreign-hires should be included in the
appropriate bargaining unit, eventually caused a
deadlock between the parties.
On September 7, 1995, petitioner filed a notice
of strike. The failure of the National Conciliation
and Mediation Board to bring the parties to a
compromise prompted the Department of Labor
and Employment (DOLE) to assume jurisdiction
over the dispute. On June 10, 1996, the DOLE
Acting Secretary, Crescenciano B. Trajano,
issued an Order resolving the parity and
representation issues in favor of the School.
Then DOLE Secretary Leonardo A. Quisumbing
subsequently denied petitioner's motion for
reconsideration in an Order dated March 19,
1997. Petitioner now seeks relief in this Court.
Petitioner claims that the point-of-hire
classification employed by the School is
discriminatory to Filipinos and that the grant of
higher salaries to foreign-hires constitutes racial
discrimination.
The School disputes these claims and gives a
breakdown of its faculty members, numbering 38
in all, with nationalities other than Filipino, who
have been hired locally and classified as local
hires.5 The Acting Secretary of Labor found that
these non-Filipino local-hires received the same
benefits as the Filipino local-hires.
The compensation package given to local-hires
has been shown to apply to all, regardless of
race. Truth to tell, there are foreigners who have

been hired locally and who are paid equally as


Filipino local hires.6
The Acting secretary upheld the point-of-hire
classification for the distinction in salary rates:
The Principle "equal pay for equal work" does
not find applications in the present case. The
international character of the School requires the
hiring of foreign personnel to deal with different
nationalities and different cultures, among the
student population.
We also take cognizance of the existence of a
system of salaries and benefits accorded to
foreign hired personnel which system is
universally recognized. We agree that certain
amenities have to be provided to these people in
order to entice them to render their services in
the Philippines and in the process remain
competitive in the international market.
Furthermore, we took note of the fact that
foreign hires have limited contract of
employment unlike the local hires who enjoy
security of tenure. To apply parity therefore, in
wages and other benefits would also require
parity in other terms and conditions of
employment which include the employment
which include the employment contract.
A perusal of the parties' 1992-1995 CBA points
us to the conditions and provisions for salary and
professional compensation wherein the parties
agree as follows:
All members of the bargaining unit shall be
compensated only in accordance with Appendix
C hereof provided that the Superintendent of the
School has the discretion to recruit and hire
expatriate teachers from abroad, under terms and
conditions that are consistent with accepted
international practice.
Appendix C of said CBA further provides:
The new salary schedule is deemed at equity
with the Overseas Recruited Staff (OSRS) salary
schedule. The 25% differential is reflective of the
agreed value of system displacement and
contracted status of the OSRS as differentiated
from the tenured status of Locally Recruited
Staff (LRS).
To our mind, these provisions demonstrate the
parties' recognition of the difference in the status

of two types of employees, hence, the difference


in their salaries.
The Union cannot also invoke the equal
protection clause to justify its claim of parity. It
is an established principle of constitutional law
that the guarantee of equal protection of the laws
is not violated by legislation or private covenants
based
on
reasonable
classification. A
classification is reasonable if it is based on
substantial distinctions and apply to all members
of the same class. Verily, there is a substantial
distinction between foreign hires and local hires,
the former enjoying only a limited tenure, having
no amenities of their own in the Philippines and
have to be given a good compensation package
in order to attract them to join the teaching
faculty of the School.7
We cannot agree.
That public policy abhors inequality and
discrimination is beyond contention. Our
Constitution and laws reflect the policy against
these evils. The Constitution8 in the Article on
Social Justice and Human Rights exhorts
Congress to "give highest priority to the
enactment of measures that protect and enhance
the right of all people to human dignity, reduce
social, economic, and political inequalities." The
very broad Article 19 of the Civil Code requires
every person, "in the exercise of his rights and in
the performance of his duties, [to] act with
justice, give everyone his due, and observe
honesty and good faith.
International law, which springs from general
principles of law,9 likewise proscribes
discrimination. General principles of law include
principles of equity, 10 i.e., the general principles
of fairness and justice, based on the test of what
is reasonable. 11 The Universal Declaration of
Human Rights, 12 the International Covenant on
Economic, Social, and Cultural Rights, 13 the
International Convention on the Elimination of
All Forms of Racial Discrimination, 14 the
Convention against Discrimination in Education,
15
the Convention (No. 111) Concerning
Discrimination in Respect of Employment and
Occupation 16 all embody the general
principle against discrimination, the very

50

antithesis of fairness and justice. The


Philippines, through its Constitution, has
incorporated this principle as part of its national
laws.
In the workplace, where the relations between
capital and labor are often skewed in favor of
capital, inequality and discrimination by the
employer are all the more reprehensible.
The Constitution 17 specifically provides that
labor is entitled to "humane conditions of work."
These conditions are not restricted to the
physical workplace the factory, the office or
the field but include as well the manner by
which employers treat their employees.
The Constitution 18 also directs the State to
promote "equality of employment opportunities
for all." Similarly, the Labor Code 19 provides
that the State shall "ensure equal work
opportunities regardless of sex, race or creed." It
would be an affront to both the spirit and letter of
these provisions if the State, in spite of its
primordial obligation to promote and ensure
equal employment opportunities, closes its eyes
to unequal and discriminatory terms and
conditions of employment. 20
Discrimination, particularly in terms of wages, is
frowned upon by the Labor Code. Article 135,
for example, prohibits and penalizes 21 the
payment of lesser compensation to a female
employee as against a male employee for work
of equal value. Article 248 declares it an unfair
labor practice for an employer to discriminate in
regard to wages in order to encourage or
discourage
membership
in
any
labor
organization.
Notably, the International Covenant on
Economic, Social, and Cultural Rights, supra, in
Article 7 thereof, provides:
The States Parties to the present Covenant
recognize the right of everyone to the enjoyment
of just and favourable conditions of work, which
ensure, in particular:
a. Remuneration which provides all workers, as a
minimum, with:
(i) Fair wages and equal remuneration for work
of equal value without distinction of any kind, in
particular women being guaranteed conditions of

work not inferior to those enjoyed by men, with


equal pay for equal work;
xxx
xxx
xxx
The
foregoing
provisions
impregnably
institutionalize in this jurisdiction the long
honored legal truism of "equal pay for equal
work." Persons who work with substantially
equal
qualifications,
skill,
effort
and
responsibility, under similar conditions, should
be paid similar salaries. 22 This rule applies to the
School,
its
"international
character"
notwithstanding.
The School contends that petitioner has not
adduced evidence that local-hires perform work
equal to that of foreign-hires. 23 The Court finds
this argument a little cavalier. If an employer
accords employees the same position and rank,
the presumption is that these employees perform
equal work. This presumption is borne by logic
and human experience. If the employer pays one
employee less than the rest, it is not for that
employee to explain why he receives less or why
the others receive more. That would be adding
insult to injury. The employer has discriminated
against that employee; it is for the employer to
explain why the employee is treated unfairly.
The employer in this case has failed to discharge
this burden. There is no evidence here that
foreign-hires perform 25% more efficiently or
effectively than the local-hires. Both groups have
similar functions and responsibilities, which they
perform under similar working conditions.
The School cannot invoke the need to entice
foreign-hires to leave their domicile to
rationalize the distinction in salary rates without
violating the principle of equal work for equal
pay.
"Salary" is defined in Black's Law Dictionary
(5th ed.) as "a reward or recompense for services
performed." Similarly, the Philippine Legal
Encyclopedia states that "salary" is the
"[c]onsideration paid at regular intervals for the
rendering of services." In Songco v. National
Labor Relations Commission, 24 we said that:
"salary" means a recompense or consideration
made to a person for his pains or industry in
another man's business. Whether it be derived

from "salarium," or more fancifully from "sal,"


the pay of the Roman soldier, it carries with it
the fundamental idea of compensation for
services rendered. (Emphasis supplied.)
While we recognize the need of the School to
attract foreign-hires, salaries should not be used
as an enticement to the prejudice of local-hires.
The local-hires perform the same services as
foreign-hires and they ought to be paid the same
salaries as the latter. For the same reason, the
"dislocation factor" and the foreign-hires' limited
tenure also cannot serve as valid bases for the
distinction in salary rates. The dislocation factor
and limited tenure affecting foreign-hires are
adequately compensated by certain benefits
accorded them which are not enjoyed by localhires, such as housing, transportation, shipping
costs, taxes and home leave travel allowances.
The Constitution enjoins the State to "protect the
rights of workers and promote their welfare," 25
"to afford labor full protection." 26 The State,
therefore, has the right and duty to regulate the
relations between labor and capital. 27 These
relations are not merely contractual but are so
impressed with public interest that labor
contracts, collective bargaining agreements
included, must yield to the common good. 28
Should such contracts contain stipulations that
are contrary to public policy, courts will not
hesitate to strike down these stipulations.
In this case, we find the point-of-hire
classification employed by respondent School to
justify the distinction in the salary rates of
foreign-hires and local hires to be an invalid
classification. There is no reasonable distinction
between the services rendered by foreign-hires
and local-hires. The practice of the School of
according higher salaries to foreign-hires
contravenes public policy and, certainly, does not
deserve the sympathy of this Court.1avvphi1
We agree, however, that foreign-hires do not
belong to the same bargaining unit as the localhires.
A bargaining unit is "a group of employees of a
given employer, comprised of all or less than all
of the entire body of employees, consistent with
equity to the employer, indicate to be the best

suited to serve the reciprocal rights and duties of


the parties under the collective bargaining
provisions of the law." 29 The factors in
determining the appropriate collective bargaining
unit are (1) the will of the employees (Globe
Doctrine); (2) affinity and unity of the
employees' interest, such as substantial similarity
of work and duties, or similarity of compensation
and working conditions (Substantial Mutual
Interests Rule); (3) prior collective bargaining
history; and (4) similarity of employment status.
30
The basic test of an asserted bargaining unit's
acceptability is whether or not it is
fundamentally the combination which will best
assure to all employees the exercise of their
collective bargaining rights. 31
It does not appear that foreign-hires have
indicated their intention to be grouped together
with local-hires for purposes of collective
bargaining. The collective bargaining history in
the School also shows that these groups were
always treated separately. Foreign-hires have
limited tenure; local-hires enjoy security of
tenure. Although foreign-hires perform similar
functions under the same working conditions as
the local-hires, foreign-hires are accorded certain
benefits not granted to local-hires. These
benefits, such as housing, transportation,
shipping costs, taxes, and home leave travel
allowance, are reasonably related to their status
as foreign-hires, and justify the exclusion of the
former from the latter. To include foreign-hires in
a bargaining unit with local-hires would not
assure either group the exercise of their
respective collective bargaining rights.
WHEREFORE, the petition is GIVEN DUE
COURSE. The petition is hereby GRANTED IN
PART. The Orders of the Secretary of Labor and
Employment dated June 10, 1996 and March 19,
1997, are hereby REVERSED and SET ASIDE
insofar as they uphold the practice of respondent
School of according foreign-hires higher salaries
than local-hires.
SO ORDERED.
(17) DE GUZMAN JR, VS COMELEC

51

PURISIMA, J.:
At bar is a petition for certiorari and prohibition
with urgent prayer for the issuance of a writ of
preliminary injunction and temporary restraining
order, assailing the validity of Section 44 of
Republic Act No. 8189 (RA 8189) otherwise
known as "The Voters Registration Act of
1996".
RA 8189 was enacted on June 10, 1996 and
approved by President Fidel V. Ramos on June
11, 1996. Section 44 thereof provides:
"SEC. 44. Reassignment of Election Officers. No Election Officer shall hold office in a
particular city or municipality for more than four
(4) years. Any election officer who, either at the
time of the approval of this Act or subsequent
thereto, has served for at least four (4) years in a
particular city or municipality shall automatically
be reassigned by the Commission to a new
station outside the original congressional
district."
By virtue of the aforequoted provision of law, the
Commission
on
Elections
(COMELEC)
promulgated Resolution Nos. 97-00021 and 9706102 for the implementation thereof. Thereafter,
the COMELEC issued several directives 3
reassigning the petitioners, who are either City or
Municipal Election Officers, to different stations.
Aggrieved by the issuance of the aforesaid
directives and resolutions, petitioners found their
way to this Court via the present petition
assailing the validity of Section 44 of RA 8189,
contending that:
I
SECTION 44 OF REPUBLIC ACT NO. 8189
VIOLATES THE EQUAL PROTECTION
CLAUSE
ENSHRINED
IN
THE
CONSTITUTION;
II
SECTION 44 OF REPUBLIC ACT NO. 8189
VIOLATES
THE
CONSTITUTIONAL
GUARANTEE ON SECURITY OF TENURE
OF CIVIL SERVANTS;
III
SECTION 44 OF REPUBLIC ACT NO. 8189
CONSTITUTES
A DEPRIVATION
OF

PROPERTY WITHOUT DUE PROCESS OF


LAW;
IV
SECTION 44 OF REPUBLIC ACT NO. 8189
UNDERMINES THE CONSTITUTIONAL
INDEPENDENCE OF COMELEC AND
COMELECS
CONSTITUTIONAL
AUTHORITY TO NAME, DESIGNATE AND
APPOINT AND THEN REASSIGN AND
TRANSFER ITS VERY OWN OFFICIALS
AND EMPLOYEES;
V
SECTION 44 OF REPUBLIC ACT NO. 8189
CONTRAVENES
THE
BASIC
CONSTITUTIONAL PRECEPT [Article VI,
SECTION 26(1), Phil. Constitution] THAT
EVERY BILL PASSED BY CONGRESS
SHALL EMBRACE ONLY ONE SUBJECT
WHICH MUST BE EXPRESSED IN THE
TITLE THEREOF; and
VI
SECTION 44 OF REPUBLIC ACT NO. 8189 IS
VOID FOR FAILURE TO COMPLY WITH
THE CONSTITUTIONAL REQUIREMENT
[ARTICLE VI, SECTION 26 (2)] OF THREE
READINGS ON SEPARATE DAYS AND
DISTRIBUTION OF PRINTED COPIES IN ITS
FINAL FORM THREE DAYS BEFORE ITS
PASSAGE.
Petitioners contentions revolve on the pivotal
issue, whether Section 44 of RA 8189 is valid
and constitutional.
The petition is barren of merit. Section 44 of RA
8189 enjoys the presumption of validity, and the
Court discerns no ground to invalidate it.
Petitioners theorize that Section 44 of RA 8189
is violative of the "equal protection clause" of
the 1987 Constitution because it singles out the
City and Municipal Election Officers of the
COMELEC as prohibited from holding office in
the same city or municipality for more than four
(4) years. They maintain that there is no
substantial distinction between them and other
COMELEC officials, and therefore, there is no
valid classification to justify the objective of the
provision of law under attack.

The Court is not persuaded by petitioners


arguments. The "equal protection clause" of the
1987 Constitution permits a valid classification
under the following conditions:
1. The classification must rest on substantial
distinctions;
2. The classification must be germane to the
purpose of the law;
3. The classification must not be limited to
existing conditions only; and
4. The classification must apply equally to all
members of the same class.4
After a careful study, the ineluctable conclusion
is that the classification under Section 44 of RA
8189 satisfies the aforestated requirements.
The singling out of election officers in order to
"ensure the impartiality of election officials by
preventing them from developing familiarity
with the people of their place of assignment"
does not violate the equal protection clause of
the Constitution.
In Lutz vs. Araneta,5 it was held that "the
legislature is not required by the Constitution to
adhere to a policy of all or none". This is so for
underinclusiveness is not an argument against a
valid classification. It may be true that all the
other officers of COMELEC referred to by
petitioners are exposed to the same evils sought
to be addressed by the statute. However, in this
case, it can be discerned that the legislature
thought the noble purpose of the law would be
sufficiently served by breaking an important link
in the chain of corruption than by breaking up
each and every link thereof. Verily, under Section
3(n) of RA 8189, election officers are the highest
officials or authorized representatives of the
COMELEC in a city or municipality. It is safe to
say that without the complicity of such officials,
large scale anomalies in the registration of voters
can hardly be carried out.
Moreover, to require the COMELEC to reassign
all employees (connected with the registration of
voters) who have served at least four years in a
given city or municipality would entail a lot of
administrative burden on the part of the
COMELEC.

Neither does Section 44 of RA 8189 infringe the


security of tenure of petitioners nor unduly
deprive them of due process of law. As held in
Sta. Maria vs. Lopez.6
"xxx the rule that outlaws unconsented transfers
as anathema to security of tenure applies only to
an officer who is appointed - not merely assigned
- to a particular station. Such a rule does not
pr[o]scribe a transfer carried out under a specific
statute that empowers the head of an agency to
periodically reassign the employees and officers
in order to improve the service of the agency.
xxx" (italics supplied)
The guarantee of security of tenure under the
Constitution is not a guarantee of perpetual
employment.1wphi1 It only means that an
employee cannot be dismissed (or transferred)
from the service for causes other than those
provided by law and after due process is
accorded the employee. What it seeks to prevent
is capricious exercise of the power to dismiss.
But, where it is the law-making authority itself
which furnishes the ground for the transfer of a
class of employees, no such capriciousness can
be raised for so long as the remedy proposed to
cure a perceived evil is germane to the purposes
of the law.
Untenable is petitioners contention that Section
44 of RA 8189 undermines the authority of
COMELEC to appoint its own officials and
employees. As stressed upon by the Solicitor
General, Section 44 establishes a guideline for
the COMELEC to follow. Said section provides
the criterion or basis for the reassignment or
transfer of an election officer and does not
deprive the COMELEC of its power to appoint,
and maintain its authority over its officials and
employees. As a matter of fact, the questioned
COMELEC resolutions and directives illustrate
that it is still the COMELEC which has the
power to reassign and transfer its officials and
employees. But as a government agency tasked
with the implementation and enforcement of
election laws, the COMELEC is duty bound to
comply with the laws passed by Congress.
The independence of the COMELEC is not at
issue here. There is no impairment or

52

emasculation of its power to appoint its own


officials and employees. In fact, Section 44 even
strengthens the COMELECs power of
appointment, as the power to reassign or transfer
is within its exclusive jurisdiction and domain.
Petitioners contention that Section 44 has an
isolated and different subject from that of RA
8189 and that the same is not expressed in the
title of the law, is equally untenable.
The objectives of Section 26(1), Article VI of the
1987 Constitution, that "[e]very bill passed by
the Congress shall embrace only one subject
which shall be expressed in the title thereof", are:
1. To prevent hodge-podge or log-rolling
legislation;
2. To prevent surprise or fraud upon the
legislature by means of provisions in bills of
which the titles gave no information, and which
might therefore be overlooked and carelessly and
unintentionally adopted; and
3. To fairly apprise the people, through such
publication of legislative proceedings as is
usually made, of the subjects of legislation that
are being considered, in order that they may have
opportunity of being heard thereon by petition or
otherwise if they shall so desire.7
Section 26(1) of Article VI of the 1987
Constitution is sufficiently complied with where,
as in this case, the title is comprehensive enough
to embrace the general objective it seeks to
achieve, and if all the parts of the statute are
related and germane to the subject matter
embodied in the title or so long as the same are
not inconsistent with or foreign to the general
subject and title.8 Section 44 of RA 8189 is not
isolated considering that it is related and
germane to the subject matter stated in the title of
the law. The title of RA 8189 is "The Voters
Registration Act of 1996" with a subject matter
enunciated in the explanatory note as "AN ACT
PROVIDING
FOR
A
GENERAL
REGISTRATION OF VOTERS, ADOPTING A
SYSTEM OF CONTINUING REGISTRATION,
PRESCRIBING
THE
PROCEDURES
THEREOF AND AUTHORIZING THE
APPROPRIATION OF FUNDS THEREFOR."
Section 44, which provides for the reassignment

of election officers, is relevant to the subject


matter of registration as it seeks to ensure the
integrity of the registration process by providing
a guideline for the COMELEC to follow in the
reassignment of election officers. It is not an
alien provision but one which is related to the
conduct and procedure of continuing registration
of voters. In this regard, it bears stressing that the
Constitution does not require Congress to
employ in the title of an enactment, language of
such precision as to mirror, fully index or
catalogue, all the contents and the minute details
therein.9
In determining the constitutionality of a statute
dubbed as defectively titled, the presumption is
in favor of its validity.10
As regards the issue raised by petitioners whether Section 44 of RA 8189 was enacted in
accordance with Section 26 (2), Article VI of the
1987 Constitution, petitioners have not
convincingly shown grave abuse of discretion on
the part of Congress. Respect due to co-equal
departments of the government in matters
entrusted to them by the Constitution, and the
absence of a clear showing of grave abuse of
discretion suffice to stay the judicial hand.11
WHEREFORE, the petition is DISMISSED; and
the constitutionality and validity of Section 44 of
RA 8189 UPHELD. No pronouncement as to
costs.
SO ORDERED.
(18) ABDULLAH D. DIMAPORO, petitioner,
vs.
HOUSE
OF
REPRESENTATIVES
ELECTORAL TRIBUNAL and ABDULLAH
S. MANGOTARA, respondents.
DECISION
TINGA, J.:
Before the Court is a petition brought by
Congressman
Abdullah
D.
Dimaporo
(Dimaporo), as petitioner, seeking to nullify the
twin
Resolutions1
of
the
House
of
Representatives Electoral Tribunal (HRET)
which denied his Motion for Technical
Evaluation of the Thumbmarks and Signatures
Affixed in the Voters Registration Records and

Voting Records 2 and Motion for Reconsideration


of Resolution No. 03-408 Denying the Motion
for Technical Examination of Voting Records .3
A brief factual background is in order.
On July 20, 2001, Dimaporo was proclaimed a
Member of the House of Representatives,
representing the 2nd Legislative District of Lanao
del Norte.
Pursuant to the 1998 Rules of the HRET (HRET
Rules),4 congressional candidate Abdullah S.
Mangotara (Mangotara) filed on July 30, 2001 a
Petition of Protest (Ad Cautelam),5 seeking,
among others, the technical examination of the
signatures and thumbmarks appearing on the
Voters Registration Records (VRRs)/Book of
Voters and the List of Voters with Voting Records
in all the protested precincts of the municipality
of Sultan Naga Dimaporo (SND). Mangotara
alleged that the massive substitution of voters
and other electoral irregularities perpetrated by
Dimaporos supporters will be uncovered and
proven by the revision of ballots and the
comparison between the signatures and
thumbmarks appearing in the VRRs/Book of
Voters and those appearing in the List of Voters
with Voting Records used on election day or
those affixed at the back of the VRRs. From this
and other premises, he concluded that he is the
duly-elected representative of the 2 nd District of
Lanao del Norte.
On October 10, 2001, Dimaporo filed an Answer
with Counter-Protest6 impugning all the ballots
and votes counted in favor of Mangotara in all
precincts of all the 15 municipalities of Lanao
del Norte, except SND. He alleged that
irregularities and electoral frauds, consisting of
massive substitute voting, i.e., persons other than
the registered voters voted in favor of
Mangotara, were committed in the counterprotested precincts. Moreover, pairs or groups of
ballots written by only one person were counted
in favor of Mangotara. Accordingly, Dimaporo
prayed for, among others, the technical
examination of the signatures and thumbmarks
of the voters who allegedly voted in the
questioned precincts.

Before revision proceedings were conducted,


Mangotara filed an Urgent Motion for Technical
Examination7 dated May 3, 2002, praying for the
technical examination of the signatures and
thumbmarks appearing on the Registration
Records/Book of Voters and List of Voters with
Voting Records in all the precincts of SND.
According to him, the fire that gutted all the
ballot boxes used in SND made the revision of
ballots in the said municipality physically
impossible. Hence, technical examination was
the only means by which the HRET can
determine Mangotaras claim of massive
substitute voting. Mangotara also argued that the
Commission on Elections (Comelec) had started
retrieving the election records needed for the
forthcoming Sangguniang Kabataan (SK)
elections. There was no assurance that the
integrity of these records will be preserved.
Thus, there was an urgent need for technical
examination of the election records. Moreover,
Mangotara averred that the results of the
technical examination are determinative of the
final resolution of the election protest in view of
the fact that Dimaporos presumptive lead over
him was only 5,487 votes.
Dimaporo filed an Opposition to the Motion for
Technical Examination on May 24, 2002.
Noting that "the Tribunal cannot evaluate the
questioned ballots because there are no ballots
but only election documents to consider," the
HRET granted Mangotaras motion and
permitted the latter "to engage an expert to assist
him in the prosecution of his case." 8
Accordingly,
the
National
Bureau
of
Investigation
conducted
the
technical
examination of the signatures and thumbmarks
of the voters of SND affixed in their VRRs and
other voting records.
After the completion of the revision of ballots,
Dimaporo filed on November 11, 2002 a Motion
for Technical Examination of the Thumbmarks
and Signatures Affixed in the Voters Registration
Records and Voting Records9 of: (a) 198 revised
pilot counter-protested precincts; (b) 47 pilot
counter-protested precincts; and (c) 36 precincts
of the municipality of Tangcal (Tangcal). The

53

motion was filed allegedly in order to


substantiate Dimaporos claims that pairs or
groups of ballots were written by only one
person and that there was massive substitute
voting in the counter-protested precincts.
Dimaporo further alleged that, upon opening 47
ballot boxes of the 47 counter-protested
precincts, it was discovered that the boxes did
not contain any ballot. Hence, no revision could
be made. Likewise, the ballots for 36 precincts of
Tangcal could no longer be revised because the
ballot boxes had been burned. Citing these
circumstances as akin to those mentioned by
Mangotara in his motion, Dimaporo moved that
his request for technical examination be granted.
The HRET denied Dimaporos motion in its
assailed Resolution No. 03-408.10 The Tribunal
declared that Dimaporos allegations that pairs or
groups of ballots were written by only one
person and that substitute voting took place in
the first and second groups of precincts are
matters which are "well within the judicial
determination of the Tribunal and which may be
determined without resort to technical
examination."11 As regards the 36 precincts of
Tangcal, the HRET found it physically
impossible to conduct a technical examination of
the signatures and thumbmarks of voters as
found in the VRRs and Book of Voters due to the
destruction of the pertinent election documents.
In its questioned Resolution No. 03-166,12 the
Tribunal denied Dimaporos Motion for
Reconsideration of Resolution No. 03-408
Denying the Motion for Technical Examination
of Voting Records.13
Hence, Dimaporo filed the instant Petition for
Certiorari and/or Mandamus with Prayer for the
Issuance of a Writ of Preliminary Injunction on
June 8, 2003.14
Dimaporo claims that the HRET deprived him of
equal protection when the latter denied his
motion for technical examination even as it had
previously granted Mangotaras similar motion.
According to him, his motion should have been
granted because there is no valid distinction
between the counter-protested precincts and the
precincts in SND subject of Mangotaras motion

since, in both instances, the ballots were no


longer available for revision. He also asserts that
the denial of his motion deprived him of
procedural due process or the right to present
scientific evidence to show the massive
substitute voting committed in the counterprotested precincts.
On July 21, 2003, Mangotara filed his
Comment15 averring that the petition is an
obvious dilatory tactic to render the election
protest moot and academic by the expiration of
the term involved. He points out that there are
substantial differences between his own motion
for technical examination and that of petitioner.
For instance, in SND, all the ballot boxes were
destroyed by fire, whereas those of the 47
counter-protested precincts were not. In fact,
except for the ballots themselves, the election
documents and other paraphernalia remained
intact. Another difference is that Mangotara
specifically contested16 the election results in
SND on the ground of substitution of voters,
whereas massive substitute voting was allegedly
a mere general averment in Dimaporos counterprotest. Moreover, Mangotara moved for
technical examination even before the revision
proceedings, whereas Dimaporos motion was
anchored on Rule 4217 of the HRET Rules and
was filed only after the revision of ballots. As
regards the counter-protested precincts of
Tangcal, Mangotara avers that destruction of the
ballot boxes is not among the grounds for
technical examination under Rule 42 of the
HRET Rules, the provision cited by Dimaporo.
Mangotara further claims that the former cannot
ask for technical examination under Rule 42 of
the HRET Rules in order to substantiate
allegations of substitute voting because this was
not cited as a ground for objection in the course
of the revision of ballots. Rule 42 of the HRET
Rules provides that the party moving for
technical examination must specify the
objections made in the course of the revision of
ballots which the movant intends to substantiate
with the results of the technical examination.
Furthermore, Dimaporo was not deprived of his
right to present evidence because the questioned

Resolution No. 03-408 itself states that all


election documents "are still subject to the
scrutiny of the Tribunal during the appreciation
of evidence." Hence, at the appropriate time and
in accordance with HRET Rules, Dimaporo will
be given an opportunity to present his evidence.
The Solicitor General filed a Comment18 on July
29, 2003 arguing that there is a distinction
between the motions filed by Mangotara and
Dimaporo. Whereas Mangotaras motion was
filed before the completion of the reviefore the
completion of the reviro was filed after the
revision of ballots. The HRET acted within the
confines of its discretion. Hence, there is no need
for this Court to exercise its extraordinary power
of certiorari.
Dimaporo filed a Consolidated Reply to the
Comments of the Public and Private
Respondent19 on August 12, 2003. Thereafter, the
parties filed their respective Memoranda20 as
required by the Court.
We are not prepared to conclude that the assailed
Resolutions of the HRET offend the equal
protection clause. Equal protection simply means
that all persons and things similarly situated
must be treated alike both as to the rights
conferred and the liabilities imposed. 21 It follows
that the existence of a valid and substantial
distinction justifies divergent treatment.
It should be mentioned that Dimaporo does not
question the HRET Rules but only the Tribunals
exercise or implementation thereof as manifested
in the questioned Resolutions. According to him,
since the ballot boxes subject of his petition and
that of Mangotara were both unavailable for
revision, his motion, like Mangotaras, should be
granted.
This argument is rather simplistic. Purposely or
not, it fails to take into account the distinctions
extant in Mangotaras protest vis--vis
Dimaporos counter-protest which validate the
grant of Mangotaras motion and the denial of
Dimaporos.
First. The election results in SND were the sole
subjects of Mangotaras protest. The opposite is
true with regard to Dimaporos counter-protest as

he contested the election results in all


municipalities but SND.
Significantly, the results of the technical
examination of the election records of SND are
determinative of the final outcome of the election
protest against Dimaporo. The same cannot be
said of the precincts subject of Dimaporos
motion.
The election results show that Mangotara won
over Dimaporo in 10 out of 15 municipalities of
Lanao del Norte. Dimaporo prevailed only in
five (5) municipalities, including SND. His
winning margin in four (4) of these
municipalities was small, but in SND, Dimaporo
obtained 22,358 votes as opposed to Mangotaras
477 votes. This means that Dimaporo won by a
margin of 21,881 votes over Mangotara in SND.
Further, the election results show that Mangotara
was credited with zero (0) vote in 73 out of 130
precincts of the said municipality. That
Dimaporo won the elections by a margin of
5,487 votes establishes the fact that the results of
the election in SND handed the victory to him.22
The technical examination of the election records
of SND and the consequent determination of the
true will of the electorate therein, therefore,
serves the interest not only of the parties but also
of the constituency of the 2 nd District of Lanao
del Norte.
Second. Mangotara filed a motion for technical
examination before the start of the revision
proceedings on the ground that the destruction of
the ballot boxes of all precincts of SND rendered
revision physically impossible. The urgency of
technical examination was due to the impending
SK elections and the resultant need for the
Comelec to retrieve the election records of the
municipality.
On the other hand, Dimaporo filed a motion for
technical examination after the revision of
ballots. No circumstance of necessity or urgency
was averred in the motion.
Third. The HRET was informed and it is not
disputed that the ballot boxes and other
election documents pertaining to Tangcal were
totally gutted by fire making technical
examination an impossibility.23

54

On the other hand, although the ballot boxes of


the precincts of SND were also destroyed by fire,
the other election records, e.g., Lists of Voters
with Voting Records and Voters Affidavits
contained in the Book of Voters, were not. Thus,
technical examination of the available election
records could still be had.
Fourth. With regard to the other counterprotested precincts, the HRET correctly pointed
out that Dimaporos claims that pairs or groups
of ballots were written by only one person and
that massive substitute voting took place may be
resolved by the Tribunal without need for
technical examination. Although no ballots were
found inside the ballot boxes of 47 counterprotested precincts, the election returns and tally
boards were still intact. These documents may
yet be considered by the Tribunal in its
resolution of the election protest. Thus, technical
examination was uncalled for as it was not
absolutely necessary.
It should be emphasized that the grant of a
motion for technical examination is subject to the
sound discretion of the HRET.24 In this case, the
Tribunal deemed it useful in the conduct of the
revision proceedings to grant Mangotaras
motion for technical examination. Conversely, it
found Dimaporos motion unpersuasive and
accordingly denied the same. In so doing, the
HRET merely acted within the bounds of its
Constitutionally-granted jurisdiction.25 After all,
the Constitution confers full authority on the
electoral tribunals of the House of
Representatives and the Senate as the sole judges
of all contests relating to the election, returns,
and qualifications of their respective members.
Such jurisdiction is original and exclusive.26
Anent Dimaporos contention that the assailed
Resolutions denied him the right to procedural
due process and to present evidence to
substantiate his claim of massive substitute
voting committed in the counter-protested
precincts, suffice it to state that the HRET itself
may ascertain the validity of Dimaporos
allegations without resort to technical
examination. To this end, the Tribunal declared
that the ballots, election documents and other

election paraphernalia are still subject to its


scrutiny in the appreciation of evidence.27
Moreover, it should be noted that the records are
replete with evidence, documentary and
testimonial, presented by Dimaporo. He has, in
fact, already filed a Formal Offer of Evidence on
January 29, 200428 to which Mangotara filed a
Comment29 on February 4, 2004. Hence,
Dimaporos allegation of denial of due process is
an indefensible pretense.
For the reasons above-mentioned, we are not
convinced that the Tribunal committed grave
abuse of discretion, much less exceeded its
jurisdiction
in
issuing
the
questioned
Resolutions.
WHEREFORE, the instant petition is
DISMISSED for lack of merit.
SO ORDERED.
(19) MA. CHONA M. DIMAYUGA, FELIPE
T.
AGUINALDO,
AND
NOEL
C.
INUMERABLE, petitioners, vs. OFFICE OF
THE OMBUDSMAN, respondent.
ECISION
AZCUNA, J.:
This is a petition for certiorari with a plea for
temporary restraining order and writ of
preliminary injunction. Petitioners, Ma. Chona
M. Dimayuga, Felipe T. Aguinaldo and Noel C.
Inumerable, seek to enjoin respondent, Office of
the Ombudsman, from conducting a preliminary
investigation and any further proceedings in
OMB 0-95-0430. Petitioners likewise seek to
annul the following: an order dated June 27,
1996, which denied a motion for the suspension
of the preliminary investigation;1 an order dated
November 18, 1996, which denied a motion for
reconsideration of the earlier order; 2 and an order
dated March 13, 1997, which denied a letterappeal questioning the last mentioned order.3
The factual antecedents are not in dispute:
Petitioners Maria Chona Dimayuga, Noel
Inumerable and Felipe Aguinaldo were
employees of the Traffic Regulatory Board
(TRB) of [the] Department of Public Works and
Highways (DPWH). Petitioner Dimayuga used
to be the TRBs executive director.

In June 1992, an anonymous complaint was filed


against
petitioners
concerning
certain
transactions of the TRB from 1989 to May 1992.
Consequently, a special audit was conducted by
the Special Audit Office (SAO) of the
Commission on Audit (COA).
The SAO report, detailing the audit of selected
transactions of the TRB was finalized on
November 4, 1994. As a consequence of said
report, certain irregularities were uncovered, in
which petitioners were implicated. It therefore
recommended appropriate action against
petitioners.
Petitioners filed a motion for reconsideration of
said report on February 28, 1995. The COA
Chairman, however, denied the same on August
30, 1995. Undaunted, petitioners then filed a
Notice of Appeal with a corresponding Motion
for Extension of Time to File Memorandum on
Appeal before the COA Chairman. In a letter
addressed to petitioner Dimayuga, the COA
Chairman acknowledged receipt of said
documents and granted petitioners request for
extension of time to file their Memorandum on
Appeal. Petitioners filed said Memorandum on
Appeal on November 20, 1995.
Meanwhile, the audit report was forwarded to the
DPWH Secretary, who then indorsed the same to
respondent Ombudsman for appropriate action
on February 16, 1995. Accordingly, petitioners
were charged with violation of the Anti-Graft
Law or Republic Act 3019, docketed as OMB 095-0430. On June 15, 1995, respondent
Ombudsman required state auditors Eleanor M.
Tejada and Jose Rey Binamira of the COAs
Special Action Team to submit their sworn
complaint on the basis of their report for
purposes of initiating the preliminary
investigation, which was set on June 28, 1995. In
view of this, petitioners filed a Motion for
Suspension of Preliminary Investigation on June
26, 1996 with the Evaluation and Preliminary
Investigation Bureau of respondent. In said
motion, petitioners argue that the SAO report
was not yet final, considering that their appeal
with the Commission had not yet been resolved.

Respondent, however, denied petitioners motion


for reconsideration on June 27, 1996 x x x.
xxx
Unsatisfied with the said Order, petitioners filed
an "Omnibus Motion for Reconsideration" dated
June 27, 1996, reiterating as ground therefor, the
pendency of their appeal before the Comission.
In arguing for the suspension of the preliminary
investigation before respondent, petitioners cited
the supposedly similar case of COA v. Gabor,
OMB-0-93-0718. The COA on the other hand,
through the Special Audit Office, filed a
Manifestation with Motion dated September 9,
1996, concurring with the position of respondent
Ombudsman, denying the previous Motion for
Reconsideration of petitioners.
On November 18, 1996, respondent denied
petitioners Omnibus Motion x x x.
xxx
Subsequent to these Motions, petitioners
likewise filed a "Letter-Appeal" dated December
5, 1996, addressed to Ombudsman Aniano
Desierto, based on the same grounds stated in
previous motions. Respondent denied said
"Letter-Appeal" in an Order dated March 13,
1997 x x x.4
On May 27, 1997, petitioners filed this petition.
This Court issued a temporary restraining order
on August 20, 1997 enjoining respondent from
conducting a preliminary investigation and any
further proceedings in OMB 0-95-0430.5
Petitioners raise the following issues:
I
The investigation of the charges in the complaint
filed by the SAO-COA against petitioners is
premature, because their appeal from the
findings of the SAO-COA is still pending
resolution before the Commission Proper. In the
exactly similar case of COA v. Gabor, OMB 093-0714, respondent Ombudsman had dismissed
and considered undocketed the complaint on the
same grounds.
II
Respondent Ombudsman violated petitioners
constitutional right to equal protection of the
laws, guaranteed under Section 1 of Article II of
the Constitution, in not affording petitioners the

55

same relief it afforded to the public official


involved in COA v. Gabor, supra.6
As to the first issue: In deference to the virtually
unlimited investigatory and prosecutorial powers
granted to the Ombudsman by the Constitution
and by law, the Court has maintained a policy of
non-interference with such powers. Sections 12
and 13, Article XI of the Constitution provide:
Sec. 12. 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 governmentowned or
controlled corporations, and shall, in appropriate
cases, notify the complainants of the action taken
and results thereof.
Sec. 13. The Office of the Ombudsman shall
have the following powers, functions, and duties:
(1) Investigate on its own, or on complaint by
any person, any act or omission of any public
official, employee, office or agency, when such
act or omission appears to be illegal, unjust,
improper, or inefficient.
Section 15 of the Ombudsman Act of 1989
states:
Sec. 15. Powers, Functions and Duties.The
Office of the Ombudsman shall have the
following powers, functions and duties:
(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 this
primary jurisdiction, it may take over, at any
stage, from any investigatory agency of
government, the investigation of such cases;
x x x.7
This Court in Quiambao v. Desierto8 stated that:
As a rule, we have consistently adopted a policy
of non-interference in the conduct of preliminary
investigations and provided sufficient latitude of
discretion to the investigating prosecutor to
determine what constitutes sufficient evidence as
will establish probable cause. As we held in the

case of The Presidential Ad-Hoc Fact Finding


Committee on Behest Loans v. Ombudsman
Aniano Desierto (418 Phil. 715; 362 SCRA 730,
735-736 [2001]):
The prosecution of offenses committed by public
officers is vested in the Office of the
Ombudsman. To insulate the Office from outside
pressure
and
improper
influence,
the
Constitution as well as R.A. 6770 has endowed it
with a wide latitude of investigatory and
prosecutor[ial] powers virtually free from
legislative, executive or judicial intervention.
This court consistently refrains from interfering
with the exercise of its powers, and respects the
initiative and independence inherent in the
Ombudsman who, "beholden to no one, acts as
the champion of the people and the preserver of
the integrity of the public service.9
In Kara-an v. Office of the Ombudsman,10 this
Court further expounded, thus:
x x x The consistent policy of the Court is not to
interfere with the Ombudsmans exercise of his
investigatory and prosecutory powers. We held
in Alba v. Nitorreda that:
x x x this Court has consistently refrained from
interfering with the exercise by the Ombudsman
of his constitutionally mandated investigatory
and prosecutor[ial] powers. Otherwise stated, it
is beyond the ambit of this Court to review the
exercise of discretion of the Ombudsman in
prosecuting or dismissing a complaint filed
before it. Such initiative and independence are
inherent in the Ombudsman who, beholden to no
one, acts as the champion of the people and
preserver of the integrity of the public service.
The Court explained the rationale underlying its
policy of non-interference in this wise:
x x x The rule is based not only upon respect for
the investigatory and prosecutor[ial] powers
granted by the Constitution to the Office of the
Ombudsman but upon practicality as well.
Otherwise, the functions of the courts will be
grievously hampered by innumerable petitions
assailing the dismissal of investigatory
proceedings conducted by the Office of the
Ombudsman with regard to complaints filed
before it, in much the same way that the courts

would be extremely swamped if they would be


compelled to review the exercise of discretion on
the part of the fiscals or prosecuting attorneys
each time they decide to file an information in
court or dismiss a complaint by a private
complainant.11
It is thus the practice of this Court to uphold the
constitutionally conferred investigatory and
prosecutorial independence of the Ombudsman.
It is precisely this independence that allows the
Office of the Ombudsman to achieve its
constitutional purpose and objective.
Furthermore, although the Commission on Audit
(COA) report may aid the Office of the
Ombudsman in conducting its preliminary
investigation, such report is not a prerequisite.
Both the Constitution and the Ombudsman Act
of 1989 state that the Office of the Ombudsman
may undertake an investigation on complaint or
on its own initiative. Therefore, with or without
the report from COA, the Ombudsman can
conduct a preliminary investigation. This Court
has declared that the findings in a COA report or
the finality or lack of finality of such report is
irrelevant to the investigation of the Office of the
Ombudsman in its determination of probable
cause. In Cabrera v. Marcelo,12 this Court
declared:
Petitioners cannot fault the Ombudsman for
relying on the
COA Audit Report,
notwithstanding that it had not yet attained
finality. The initial basis for the Ombudsman's
investigation was not the COA Audit Report, but
the complaints filed by Casanova. While the
allegations in the complaint happened to be
similar with those contained in the COA Audit
Report, the Ombudsman could very well conduct
an independent investigation based on the
complaints for the purpose of whether criminal
charges should be filed against the petitioners.
The Ombudsman is reposed with broad
investigatory powers in the pursuit and of its
constitutional mandate as protector of the people
and investigator of complaints filed against
public officials. It is even empowered to request
from any government agency such as the COA,
the information necessary in the discharge of its

responsibilities and to examine, if necessary,


pertinent records and documents.
It should be borne in mind that the interest of the
COA is solely administrative, and that its
investigation
does
not
foreclose
the
Ombudsman's authority to investigate and
determine whether there is a crime to be
prosecuted for which a public official is
answerable. In Ramos v. Aquino, the Court ruled
that the fact that petitioners' accounts and
vouchers had passed in audit is not a ground for
enjoining the provincial fiscal from conducting a
preliminary investigation for the purpose of
determining the criminal liability of petitioners
for malversation. Clearly then, a finding of
probable cause does not derive its veracity from
the findings of the COA, but from the
independent determination of the Ombudsman.13
Further, this Court in Aguinaldo v.
Sandiganbayan14 said:
Therefore, as correctly stated by the
Sandiganbayan in its order of April 12, 1996,
while the COA may assist in gathering evidence
to substantiate a charge of malversation, any
determination made by it will not be conclusive
as to whether adequate cause exists to prosecute
a case. This is so because the Ombudsman is
given the power to investigate on its own an
illegal act or omission of a public official. 15
And Layus v. Sandiganbayan16 pronounced:
The contention that a prior COA Report is
necessary to determine LAYUS' culpability is
without merit. Under R.A. No. 6770, the
Ombudsman has the power to investigate and
prosecute individuals on matters and complaints
referred to or filed before it. Such power is
plenary.
We likewise disagree with LAYUS' reliance on
the regularity of her COA Report. A COA
approval of a government official's disbursement
only relates to the administrative aspect of his
accountability, but it does not foreclose the
Ombudsman's authority to investigate and
determine whether there is a crime to be
prosecuted for which such official may be
answerable. For, while the COA may regard a
government official to have substantially

56

complied with its accounting rules, this fact is


not sufficient to dismiss the criminal case.17
Therefore, the investigation of the charges in the
complaint filed by the Special Audit Office-COA
against petitioners is not premature.
Regarding the second issue:
As stated, the Office of the Ombudsman has
been granted virtually plenary investigatory
powers by the Constitution and by law. Thus, as
a rule, the Office of the Ombudsman may, for
every particular investigation, whether instigated
by a complaint or on its own initiative, decide

how best to pursue each investigation. This


power gives the Office of the Ombudsman the
discretion to dismiss without prejudice a
preliminary investigation if it finds that the final
decision of COA is necessary for its
investigation and the future prosecution of the
case. In another case with similar factual
antecedents, it may pursue the investigation
because it realizes that the decision of COA is
irrelevant or unnecessary to the investigation and
prosecution of the case. Since the Office of the
Ombudsman is granted such latitude, its varying

treatment of similarly situated investigations


cannot by itself be considered a violation of any
of the parties rights to the equal protection of the
laws.
Thus, petitioners have not shown that respondent
committed a grave abuse of discretion amounting
to lack or excess of jurisdiction in denying their
motions to dismiss the case or to suspend the
proceedings.
WHEREFORE, the petition is DISMISSED and
the prayer for a writ of preliminary injunction is
DENIED. The temporary restraining order issued

through the resolution dated August 20, 1997 is


LIFTED and respondent Office of the
Ombudsman may proceed with the preliminary
investigation and/or any further proceedings in
OMB 0-95-0430 entitled Commission on Audit v.
Chona Dimayuga, et al.
No costs.
SO ORDERED.
(20)

57