1
Delegation of Powers
a. Purpose
PANGTRANCO vs PSC
The petitioner has been engaged for the past twenty years in the business of transporting passengers in the
Province of Pangasinan and Tarlac and, to a certain extent, in the Province of Nueva Ecija and Zambales,
by means of motor vehicles commonly known as TPU buses, in accordance with the terms and conditions
of the certificates of public convenience issued in its favor by the former Public Utility Commission in
cases Nos. 24948, 30973, 36830, 32014 and 53090. On August 26, 1939, the petitioner filed with the
Public Service Commission an application for authorization to operate ten additional new Brockway
trucks (case No. 56641), on the ground that they were needed to comply with the terms and conditions of
its existing certificates and as a result of the application of the Eight Hour Labor Law. In the decision of
September 26, 1939, granting the petitioner's application for increase of equipment, the Public Service
Commission ordered:
Y de acuerdo con que se provee por el articulo 15 de la ley No. 146 del Commonwealth, tal
como ha sido enmendada por el articulo 1 de la Ley No. 454, por la presente se enmienda las
condiciones de los certificados de convenciencia publica expedidos en los expedientes Nos.
24948, 30973, 36831, 32014 y la authorizacion el el expediente No. 53090, asi que se
consideran incorporadas en los mismos las dos siguientes condiciones:
Que los certificados de conveniencia publica y authorizacion arriba mencionados seran validos
y subsistentes solamente durante de veinticinco (25) anos, contados desde la fecha de la
promulgacion de esta decision.
Que la empresa de la solicitante porda ser adquirida por el Commonwealth de Filipinas o por
alguna dependencia del mismo en cualquier tiempo que lo deseare previo pago del precio d
costo de su equipo util, menos una depreciacion razonable que se ha fijar por la Comision al
tiempo de su adquisicion.
Not being agreeable to the two new conditions thus incorporated in its existing certificates, the petitioner
filed on October 9, 1939 a motion for reconsideration which was denied by the Public Service
Commission on November 14, 1939. Whereupon, on November 20, 1939, the present petition for a writ
of certiorari was instituted in this court praying that an order be issued directing the secretary of the
Public Service Commission to certify forthwith to this court the records of all proceedings in case No.
56641; that this court, after hearing, render a decision declaring section 1 of Commonwealth Act No. 454
unconstitutional and void; that, if this court should be of the opinion that section 1 of Commonwealth Act
No. 454 is constitutional, a decision be rendered declaring that the provisions thereof are not applicable to
valid and subsisting certificates issued prior to June 8, 1939. Stated in the language of the petitioner, it is
contended:
1. That the legislative powers granted to the Public Service Commission by section 1 of
Commonwealth Act No. 454, without limitation, guide or rule except the unfettered discretion
and judgment of the Commission, constitute a complete and total abdication by the Legislature
of its functions in the premises, and for that reason, the Act, in so far as those powers are
concerned, is unconstitutional and void.
2. That even if it be assumed that section 1 of Commonwealth Act No. 454, is valid delegation
of legislative powers, the Public Service Commission has exceeded its authority because: (a)
The Act applies only to future certificates and not to valid and subsisting certificates issued
prior to June 8, 1939, when said Act took effect, and (b) the Act, as applied by the
Commission, violates constitutional guarantees.
Section 15 of Commonwealth Act No. 146, as amended by section 1 of Commonwealth Act No. 454,
invoked by the respondent Public Service Commission in the decision complained of in the present
proceedings, reads as follows:
With the exception to those enumerated in the preceding section, no public service shall
operate in the Philippines without possessing a valid and subsisting certificate from the Public
Service Commission, known as "certificate of public convenience," or "certificate of
convenience and public necessity," as the case may be, to the effect that the operation of said
service and the authorization to do business will promote the public interests in a proper and
suitable manner.
The Commission may prescribed as a condition for the issuance of the certificate provided in
the preceding paragraph that the service can be acquired by the Commonwealth of the
Philippines or by any instrumentality thereof upon payment of the cost price of its useful
equipment, less reasonable depreciation; and likewise, that the certificate shall valid only for a
definite period of time; and that the violation of any of these conditions shall produce the
immediate cancellation of the certificate without the necessity of any express action on the part
of the Commission.
In estimating the depreciation, the effect of the use of the equipment, its actual condition, the
age of the model, or other circumstances affecting its value in the market shall be taken into
consideration.
The foregoing is likewise applicable to any extension or amendment of certificates actually
force and to those which may hereafter be issued, to permits to modify itineraries and time
schedules of public services and to authorization to renew and increase equipment and
properties.
Under the first paragraph of the aforequoted section 15 of Act No. 146, as amended, no public service can
operate without a certificate of public convenience or certificate of convenience and public necessity to the
effect that the operation of said service and the authorization to do business will "public interests in a
proper and suitable manner." Under the second paragraph, one of the conditions which the Public Service
Commission may prescribed the issuance of the certificate provided for in the first paragraph is that "the
service can be acquired by the Commonwealth of the Philippines or by any instrumental thereof upon
payment of the cost price of its useful equipment, less reasonable depreciation," a condition which is
virtually a restatement of the principle already embodied in the Constitution, section 6 of Article XII,
which provides that "the State may, in the interest of national welfare and defense, establish and operate
industries and means of transportation and communication, and, upon payment of just compensation,
transfer to public ownership utilities and other private enterprises to be operated by the Government.
"Another condition which the Commission may prescribed, and which is assailed by the petitioner, is that
the certificate "shall be valid only for a definite period of time." As there is a relation between the first and
second paragraphs of said section 15, the two provisions must be read and interpreted together. That is to
say, in issuing a certificate, the Commission must necessarily be satisfied that the operation of the service
under said certificate during a definite period fixed therein "will promote the public interests in a proper
and suitable manner." Under section 16 (a) of Commonwealth Act. No. 146 which is a complement of
section 15, the Commission is empowered to issue certificates of public convenience whenever it "finds
that the operation of the public service proposed and the authorization to do business will promote the
public interests in a proper and suitable manner." Inasmuch as the period to be fixed by the Commission
under section 15 is inseparable from the certificate itself, said period cannot be disregarded by the
Commission in determining the question whether the issuance of the certificate will promote the public
interests in a proper and suitable manner. Conversely, in determining "a definite period of time," the
Commission will be guided by "public interests," the only limitation to its power being that said period
shall not exceed fifty years (sec. 16 (a), Commonwealth Act No. 146; Constitution, Art. XIII, sec. 8.) We
have already ruled that "public interest" furnishes a sufficient standard. (People vs. Fernandez and
Trinidad, G. R. No. 45655, promulgated June 15, 1938; People vs. Rosenthal and Osmeña, G. R. Nos.
46076 and 46077, promulgated June 12, 1939, citing New York Central Securities Corporation vs. U.S.A.,
287 U.S. 12, 24, 25, 77 Law. ed. 138, 145, 146; Schenchter Poultry Corporation vs. I.S., 295, 540, 79 Law.
ed. 1570, 1585; Ferrazzini vs. Gsell, 34 Phil., 697, 711-712.)
Section 8 of Article XIII of the Constitution provides, among other things, that no franchise, certificate, or
any other form of authorization for the operation of a public utility shall be "for a longer period than fifty
years," and when it was ordained, in section 15 of Commonwealth Act No. 146, as amended by
Commonwealth Act No. 454, that the Public Service Commission may prescribed as a condition for the
issuance of a certificate that it "shall be valid only for a definite period of time" and, in section 16 (a) that
"no such certificates shall be issued for a period of more than fifty years," the National Assembly meant to
give effect to the aforesaid constitutional mandate. More than this, it has thereby also declared its will that
the period to be fixed by the Public Service Commission shall not be longer than fifty years. All that has
been delegated to the Commission, therefore, is the administrative function, involving the use discretion,
to carry out the will of the National Assembly having in view, in addition, the promotion of "public
interests in a proper and suitable manner." The fact that the National Assembly may itself exercise the
function and authority thus conferred upon the Public Service Commission does not make the provision in
question constitutionally objectionable.
The theory of the separation of powers is designed by its originators to secure action and at the same time
to forestall overaction which necessarily results from undue concentration of powers, and thereby obtain

efficiency and prevent deposition. Thereby, the "rule of law" was established which narrows the range of
governmental action and makes it subject to control by certain devices. As a corollary, we find the rule
prohibiting delegation of legislative authority, and from the earliest time American legal authorities have
proceeded on the theory that legislative power must be exercised by the legislature alone. It is frankness,
however, to confess that as one delves into the mass of judicial pronouncement, he finds a great deal of
confusion. 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 delegari or delegata potestas non potest delegari,
attributed to Bracton (De Legius et Consuetedinious Angliae, 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 governments, giving rise to the adoption, within
certain limits, of the principle of "subordinate legislation," not only in the United States and England but
in practically all modern governments. (People vs. Rosenthal and Osmeña, G. R. Nos. 46076 and 46077,
promulgated June 12, 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 powers by the legislature, and toward the
approval of the practice by the court. (Dillon Catfish Drainage Dist, v. Bank of Dillon, 141 S. E. 274, 275,
143 S. Ct. 178; State vs. Knox County, 54 S. W. 2d. 973, 976, 165 Tenn. 319.) In harmony with such
growing tendency, this Court, since the decision in the case of Compañia General de Tabacos de Filipinas
vs. Board of Public Utility Commissioner (34 Phil., 136), relied upon by the petitioner, has, in instances,
extended its seal of approval to the "delegation of greater powers by the legislature." (Inchausti Steamship
Co. vs. Public Utility Commissioner, 44 Phil., Autobus Co. vs. De Jesus, 56 Phil., 446;
People vs. Fernandez & Trinidad, G. R. No. 45655, promulgated June 15, 1938; People vs. Rosenthal &
Osmeña, G. R. Nos. 46076, 46077, promulgated June 12, 1939; and Robb and Hilscher vs. People, G. R.
No. 45866, promulgated June 12, 1939.).
Under the fourth paragraph of section 15 of Commonwealth Act No. 146, as amended by Commonwealth
Act No. 454, the power of the Public Service Commission to prescribed the conditions "that the service
can be acquired by the Commonwealth of the Philippines or by any instrumentality thereof upon payment
of the cost price of its useful equipment, less reasonable," and "that the certificate shall be valid only for a
definite period of time" is expressly made applicable "to any extension or amendment of certificates
actually in force" and "to authorizations to renew and increase equipment and properties." We have
examined the legislative proceedings on the subject and have found that these conditions were purposely
made applicable to existing certificates of public convenience. The history of Commonwealth Act No. 454
reveals that there was an attempt to suppress, by way of amendment, the sentence "and likewise, that the
certificate shall be valid only for a definite period of time," but the attempt failed:
xxx xxx xxx
Sr. CUENCO. Señor Presidente, para otra enmienda. En la misma pagina, lineas 23 y 24, pido
que se supriman las palabras 'and likewise, that the certificate shall be valid only for a definite
period time.' Esta disposicion del proyecto autoriza a la Comision de Servicios Publicos a fijar
un plazo de vigencia certificado de conveniencia publica. Todo el mundo sabe que bo se puede
determinar cuando los intereses del servicio publico requiren la explotacion de un servicio
publico y ha de saber la Comision de Servisios, si en un tiempo determinado, la explotacion de
algunos buses en cierta ruta ya no tiene de ser, sobre todo, si tiene en cuenta; que la explotacion
de los servicios publicos depende de condiciones flutuantes, asi como del volumen como
trafico y de otras condiciones. Ademas, el servicio publico se concede por la Comision de
Servicios Publicos el interes publico asi lo exige. El interes publico no tiene duracion fija, no es
permanente; es un proceso mas o menos indefinido en cuanto al tiempo. Se ha acordado eso en
el caucus de anoche.
EL PRESIDENTE PRO TEMPORE. ¿Que dice el Comite?
Sr. ALANO. El Comite siente tener que rechazar esa enmienda, en vista de que esto
certificados de conveniencia publica es igual que la franquicia: sepuede extender. Si los
servicios presentados por la compañia durante el tiempo de su certificado lo require, puede
pedir la extension y se le extendera; pero no creo conveniente el que nosotros demos un
certificado de conveniencia publica de una manera que podria pasar de cincuenta anos, porque
seria anticonstitucional.
xxx xxx xxx
By a majority vote the proposed amendment was defeated. (Sesion de 17 de mayo de 1939, Asamblea
Nacional.)
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The petitioner is mistaken in the suggestion that, simply because its existing certificates had been granted
before June 8, 1939, the date when Commonwealth Act No. 454, amendatory of section 15 of
Commonwealth Act No. 146, was approved, it must be deemed to have the right of holding them in
perpetuity. Section 74 of the Philippine Bill provided that "no franchise, privilege, or concession shall be
granted to any corporation except under the conditions that it shall be subject to amendment, alteration, or
repeal by the Congress of the United States." The Jones Law, incorporating a similar mandate, provided,
in section 28, that "no franchise or right shall be granted to any individual, firm, or corporation except
under the conditions that it shall be subject to amendment, alteration, or repeal by the Congress of the
United States." Lastly, the Constitution of the Philippines provided, in section 8 of Article XIII, that "no
franchise or right shall be granted to any individual, firm, or corporation, except under the condition that it
shall be subject to amendment, alteration, or repeal by the National Assembly when the public interest so
requires." The National Assembly, by virtue of the Constitution, logically succeeded to the Congress of
the United States in the power to amend, alter or repeal any franchise or right granted prior to or after the
approval of the Constitution; and when Commonwealth Acts Nos. 146 and 454 were enacted, the National
Assembly, to the extent therein provided, has declared its will and purpose to amend or alter existing
certificates of public convenience.
Upon the other hand, statutes enacted for the regulation of public utilities, being a proper exercise by the
state of its police power, are applicable not only to those public utilities coming into existence after its
passage, but likewise to those already established and in operation.
Nor is there any merit in petitioner's contention, that, because of the establishment of
petitioner's operations prior to May 1, 1917, they are not subject to the regulations of the
Commission. Statutes for the regulation of public utilities are a proper exercise by the state of
its police power. As soon as the power is exercised, all phases of operation of established
utilities, become at once subject to the police power thus called into operation. Procedures'
Transportation Co. v. Railroad Commission, 251 U. S. 228, 40 Sup. Ct. 131, 64 Law. ed. 239,
Law v. Railroad Commission, 184 Cal. 737, 195 Pac. 423, 14 A. L. R. 249. The statute is
applicable not only to those public utilities coming into existence after its passage, but likewise
to those already established and in operation. The 'Auto Stage and Truck Transportation Act'
(Stats. 1917, c. 213) is a statute passed in pursuance of the police power. The only distinction
recognized in the statute between those established before and those established after the
passage of the act is in the method of the creation of their operative rights. A certificate of
public convenience and necessity it required for any new operation, but no such certificate is
required of any transportation company for the operation which was actually carried on in good
faith on May 1, 1917, This distinction in the creation of their operative rights in no way affects
the power of the Commission to supervise and regulate them. Obviously the power of the
Commission to hear and dispose of complaints is as effective against companies securing their
operative rights prior to May 1, 1917, as against those subsequently securing such right under a
certificate of public convenience and necessity. (Motor Transit Co. et al. v. Railroad
Commission of California et al., 209 Pac. 586.)
Moreover, Commonwealth Acts Nos. 146 and 454 are not only the organic acts of the Public Service
Commission but are "a part of the charter of every utility company operating or seeking to operate a
franchise" in the Philippines. (Streator Aqueduct Co. v. et al., 295 Fed. 385.) The business of a common
carrier holds such a peculiar relation to the public interest that there is superinduced upon it the right of
public regulation. When private property is "affected with a public interest it ceased to be juris
privati only." When, therefore, one devotes his property to a use in which the public has an interest, he, in
effect, grants to the public an interest in that use, and must submit to be controlled by the public for the
common good, to the extent of the interest he has thus created. He may withdraw his grant by discounting
the use, but so long as he maintains the use he must submit to control. Indeed, this right of regulation is so
far beyond question that it is well settled that the power of the state to exercise legislative control over
public utilities may be exercised through boards of commissioners. (Fisher vs. Yangco Steamship
Company, 31 Phil., 1, citing Munn vs. Illinois, 94 U.S. 113; Georgia R. & Bkg. Co. vs. Smith, 128 U.S.
174; Budd vs. New York, 143 U.S. 517; New York etc. R. Co. vs. Bristol 151 U.S. 556, 571; Connecticut
etc. R. Co. vs. Woodruff, 153 U.S. 689; Louisville etc. Ry Co. vs. Kentucky, 161 U.S. 677, 695.) This
right of the state to regulate public utilities is founded upon the police power, and statutes for the control
and regulation of utilities are a legitimate exercise thereof, for the protection of the public as well as of the
utilities themselves. Such statutes are, therefore, not unconstitutional, either impairing the obligation of
contracts, taking property without due process, or denying the equal protection of the laws, especially

inasmuch as the question whether or not private property shall be devoted to a public and the consequent
burdens assumed is ordinarily for the owner to decide; and if he voluntarily places his property in public
service he cannot complain that it becomes subject to the regulatory powers of the state. (51 C. J., sec. 21,
pp. 9-10.) in the light of authorities which hold that a certificate of public convenience constitutes neither
a franchise nor contract, confers no property right, and is mere license or privilege. (Burgess vs. Mayor &
Alderman of Brockton, 235 Mass. 95, 100, 126 N. E. 456; Roberto vs. Commisioners of Department of
Public Utilities, 262 Mass. 583, 160 N. E. 321; Scheible vs. Hogan, 113 Ohio St. 83, 148 N. E. 581;
Martz vs. Curtis [J. L.] Cartage Co. [1937], 132 Ohio St. 271, 7 N. E. [d] 220; Manila Yellow Taxicab
Co. vs. Sabellano, 59 Phil., 773.)
Whilst the challenged provisions of Commonwealth Act No. 454 are valid and constitutional, we are,
however, of the opinion that the decision of the Public Service Commission should be reversed and the
case remanded thereto for further proceedings for the reason now to be stated. The Public Service
Commission has power, upon proper notice and hearing, "to amend, modify or revoke at any time any
certificate issued under the provisions of this Act, whenever the facts and circumstances on the strength of
which said certificate was issued have been misrepresented or materially changed." (Section 16, par. [m],
Commonwealth Act No. 146.) The petitioner's application here was for an increase of its equipment to
enable it to comply with the conditions of its certificates of public convenience. On the matter of
limitation to twenty five (25) years of the life of its certificates of public convenience, there had been
neither notice nor opportunity given the petitioner to be heard or present evidence. The Commission
appears to have taken advantage of the petitioner to augment petitioner's equipment in imposing the
limitation of twenty-five (25) years which might as well be twenty or fifteen or any number of years. This
is, to say the least, irregular and should not be sanctioned. There are cardinal primary rights which must be
respected even in proceedings of this character. The first of these rights is the right to a hearing, which
includes the right of the party interested or affected to present his own case and submit evidence in support
thereof. In the language of Chief Justice Hughes, in Morgan v. U.S., (304 U.S. 1, 58 S. Ct. 773, 999, 82
Law. ed. 1129), "the liberty and property of the citizen shall be protected by the rudimentary requirements
of fair play." Not only must the party be given an opportunity to present his case and to adduce evidence
tending to establish the rights which he asserts but the tribunal must consider the evidence presented.
(Chief Justice Hughes in Morgan vs. U.S., 298 U.S. 468, 56 S. Ct. 906, 80 :Law. ed. 1288.) In the
language of this Court in Edwards vs. McCoy (22 Phil., 598), "the right to adduce evidence, without the
corresponding duty on the part of the board to consider it, is vain. Such right is conspicuously futile if the
person or persons to whom the evidence is presented can thrust it aside without or consideration." While
the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which
cannot be disregarded, namely, that of having something to support its decision. A decision with
absolutely nothing to support it is a nullity, at least when directly attacked. (Edwards vs. McCoy, supra.)
This principle emanates from the more fundamental principle that the genius of constitutional government
is contrary to the vesting of unlimited power anywhere. Law is both a grant and a limitation upon power.
The decision appealed from is hereby reversed and the case remanded to the Public Service Commission
for further proceedings in accordance with law and this decision, without any pronouncement regarding
costs. So ordered.
Avanceña, C.J., Imperial, Diaz, Concepcion and Moran, JJ., concur.
Jaworski v PAGCOR
VELASCO, JR., J.:
In this petition for review under Rule 45, the May 19, 2009 Decision of the Court of Appeals (CA) in CA-
G.R. SP No. 107247 is questioned for not nullifying the November 18, 2008 Order of the Regional Trial
Court (RTC) in Manila in Civil Case No. 08-120338 that issued a temporary restraining order (TRO)
against petitioner Philippine Amusement and Gaming Corporation (PAGCOR), barring PAGCOR from
committing acts that allegedly violate the rights of respondent Fontana Development Corporation (FDC)
under a December 23, 1999 Memorandum of Agreement (MOA).
The antecedents as culled by the CA from the records are:
Petitioner Philippine Amusement and Gaming Corporation (PAGCOR) is a government owned and
controlled corporation created under Presidential Decree (PD) No. 1869 to enable the Government to
3
regulate and centralize all games of chance authorized by existing franchise or permitted by law. Section
10 thereof conferred on PAGCOR a franchise of twenty-five (25) years or until July 11, 2008, renewable
for another twenty-five (25) years. Under Section 9 thereof, it was given regulatory powers over persons
and/or entities with contract or franchise with it, viz:
SECTION 9. Regulatory Power.—The Corporation shall maintain a Registry of the affiliated entities, and
shall exercise all the powers, authority and the responsibilities vested in the Securities and Exchange
Commission over such affiliated entities mentioned under the preceding section, including but not limited
to amendments of Articles of Incorporation and By-Laws, changes in corporate term, structure,
capitalization and other matters concerning the operation of the affiliating entities, the provisions of the
Corporation Code of the Philippines to the contrary notwithstanding, except only with respect to original
incorporation.
On March 13, 1992, Republic Act No. 7227 was enacted to provide for the conversion and development of
existing military reservations, including former United States military bases in the Philippines, into
Special Economic Zones (SEZ). The law also provides for the creation of the Subic Bay Metropolitan
Authority (SBMA).
On April 3, 1993, then President Fidel V. Ramos issued Executive Order (EO) No. 80. Under Section 5
thereof, the Clark Special Economic Zone (CSEZ) was given all the applicable incentives granted to Subic
Bay Special Economic Zone (SSEZ), viz:
SECTION 5. Investments Climate in the CSEZ.—Pursuant to Section 5(m) and Section 15 of RA 7227,
the BCDA shall promulgate all necessary policies, rules and regulations governing the CSEZ, including
investment incentives, in consultation with the local government units and pertinent government
departments for implementation by the CDC.
Among others, the CSEZ shall have all the applicable incentives in the Subic Special Economic and Free
Port Zone under RA 7227 and those applicable incentives granted in the Export Processing Zones, the
Omnibus Investments Code of 1987, the Foreign Investments Act of 1991 and new investments laws
which may hereinafter be enacted.
The CSEZ Main Zone covering the Clark Air Base proper shall have all the aforecited investment
incentives, while the CSEZ Sub-Zone covering the rest of the CSEZ shall have limited incentives. The full
incentives in the Clark SEZ Main Zone and the limited incentives in the Clark SEZ Sub-Zone shall be
determined by the BCDA.
On December 23, 1999, PAGCOR granted private respondent Fontana Development Corporation (FDC)
(formerly RN Development Corporation) the authority to operate and maintain a casino inside the CSEZ
under a Memorandum of Agreement (MOA), stating inter alia:
xxxx
1. RNDC Improvements
xxxx
4. Non-exclusivity, PAGCOR and RNDC agree that the license granted to RNDC to engage in gaming and
amusement operations within CSEZ shall be non-exclusive and co-terminus with the Charter of PAGCOR,
or any extension thereof, and shall be for the period hereinabove defined. (Emphasis supplied.)
xxxx

On April 12, 2000, Clark Development Corporation (CDC) issued Certificate of Registration No. 2000-24.
Pursuant to Article VII-11 thereof, the MOA was amended on July 28, 2000, September 6, 2000,
December 6, 2001, June 3, 2002, October 13, 2003 and March 31, 2004.
Sometime in 2005, the Coconut Oil Refiners Association challenged before the Supreme Court the
constitutionality, among others, of EO No. 80 on the ground that the incentives granted to SSEZ under RA
No. 7227 was exclusive and cannot be made applicable to CSEZ by a mere executive order. The case was
decided in favor of Coconut Oil Refiners Association and Section 5 aforequoted was declared of no legal
force and effect.
On June 20, 2007, RA No. 9487 was enacted, extending PAGCOR’s franchise up to July 10, 2033
renewable for another twenty-five (25) years, viz:
SECTION 1. The Philippine Amusement and Gaming Corporation (PAGCOR) franchise granted under
Presidential Decree No. 1869, otherwise known as the PAGCOR Charter, is hereby further amended to
read as follows:
(1) Section 10, Nature and Term of Franchise, is hereby amended to read as follows:
SEC. 10. Nature and Term of Franchise.—Subject to the terms and conditions established in this Decree,
the Corporation is hereby granted from the expiration of its original term on July 11, 2008, another period
of twenty-five (25) years, the rights, privileges and authority to operate and license gambling casinos,
gaming clubs and other similar recreation or amusement places, gaming pools, i.e., basketball, football,
bingo, etc. except jai-alai, whether on land or sea, within the territorial jurisdiction of the Republic of the
Philippines: Provided, That the corporation shall obtain the consent of the local government unit that has
territorial jurisdiction over the area chosen as the site for any of its operations.
xxxx
On July 18, 2008, PAGCOR informed FDC that it was extending the MOA on a month-to-month basis
until the finalization of the renewal of the contract. FDC protested, claiming that the extension of
PAGCOR’s franchise had automatically extended the MOA: that the SC decisions, including RA Nos.
9400 and 9399, had no effect on the authority of CDC to allow the establishment of a casino inside the
CSEZ; and that in Coconut Oil Refiners Association, Inc., the SC did not declare void the entire EO No.
80 but only Section 5 thereof.
On October 6, 2008, after a series of dialogues and exchange of position papers, PAGCOR notified FDC
that its [new] standard Authority to Operate shall now govern and regulate FDC’s casino operations in
place of the previous MOA. FDC moved for the reconsideration of the said decision but the same was
denied. On November 5, 2008, PAGCOR instructed FDC to remit its franchise fees in accordance with the
Authority to Operate.
On the same date of November 5, 2008, FDC filed before the RTC of Manila the instant complaint for
Injunction against PAGCOR, contending that it could not be covered by a month-to-month extension nor
by the standard Authority to Operate since the MOA was automatically renewed and extended up to 2033;
that the MOA clearly provided that the same was co-terminus with PAGCOR’s franchise including any
extension thereof; that it had faithfully complied with the conditions under the MOA; that pursuant to the
MOA, it had built a hotel-casino complex and put up other investments equivalent to P1 Billion; that it
had adopted a marketing strategy to attract high roller casino players from Asia and had scrupulously met
all its obligations to PAGCOR and other government agencies; and that the provisions invalidated in
Coconut Oil Refiners Association, Inc., principally pertained to tax and customs duty, privileges or
incentives which was thereafter restored by the enactment of RA No. 9400. The complaint was docketed
as the herein Civil Case No. 08-120338 and raffled to Branch 7.
4
The RTC summoned PAGCOR and set the hearing on the application for TRO. On November 13, 2008,
PAGCOR filed its Special Appearance (for Dismissal of the Petition and the Opposition to the Prayer for a
Temporary Restraining Order and/or Writ of Preliminary Injunction), praying that the complaint be
dismissed for lack of jurisdiction. PAGCOR contended that its decision to replace the MOA with the
Authority to Operate was pursuant to its regulatory powers under Sections 8 and 9 of PD No. 1869; that
under the said provisions, it was given all the powers, authority and responsibilities of the Securities and
Exchange Commission (SEC) over corporations engaged in gambling; that consequently, being the SEC
of said corporations, the appeal or review of its decision should have been made directly to the SC under
PD No. 1869 in relation to the last paragraph of Section 6, PD No. 902-A; PAGCOR argued that
administrative agencies are co-equal with RTC’s; that application or operation of presidential decrees are
appealable to the SC under Article VIII, Section 4(2) of the 1987 Constitution; and that there was no basis
for the issuance of TRO/Writ of Preliminary Injunction since the franchise or license granted to FDC was
not a property right but was merely a privilege and not a contract.
On November 18, 2008, the RTC issued the first assailed Order denying PAGCOR’s motion to dismiss
and granting FDC’s application for a TRO. The RTC held that the SC had no exclusive jurisdiction over
cases involving PAGCOR; that the cases of Del Mar vs. PAGCOR, Sandoval II vs. PAGCOR, Jaworski
vs. PAGCOR were decided by the SC in the exercise of its discretionary power to take cognizance of
cases; that it had jurisdiction over the instant complaint under Section 21(1) of Batas Pambansa (BP) No.
129 in relation to Article VIII, Section 5(1) of the 1987 Constitution and the rule on hierarchy of courts;
that although PAGCOR was granted regulatory powers, it was not extended quasi-judicial functions; and
that PAGCOR is not an administrative agency but a government owned and controlled corporation. Upon
the posting by FDC of the required bond of P500,000.00, the RTC issued on November 19, 2008 the
second assailed Order, a TRO enjoining the implementation of the Standard Authority to Operate within a
period of twenty (20) days. PAGCOR’s motion for reconsideration was denied in the third assailed Order.
On December 8, 2008, the RTC issued an Order likewise denying FDC’s application for the issuance of a
Writ of Preliminary Injunction. The RTC ruled that FDC failed to present a clear legal right to justify its
issuance; that PAGCOR was granted with legislative right to franchise to other entities the operation of
gambling casinos; and that since what was granted was a license to operate and not a contract, no vested
property right was at stake.
Both PAGCOR and Fontana moved for the reconsideration of the aforesaid Order. Fontana maintained
that it was entitled to a Writ of Preliminary Injunction while PAGCOR wanted deleted the finding that it
had the authority to issue casino license to FDC under PD No. 1869.1
On February 5, 2009, PAGCOR filed a petition for certiorari and prohibition before the CA docketed as
CA-G.R. SP No. 107247 entitled PAGCOR represented by Atty. Carlos R. Bautista, Jr. v. Hon. Ma.
Theresa Dolores Estoesta and Fontana Development Corporation, questioning the November 18, 2008
Order, the November 19, 2008 Order and the December 4, 2008 Order of respondent judge.
Meanwhile, on January 30, 2009, the RTC issued an order, which reconsidered its December 8, 2008
Order and granted the writ of preliminary injunction in favor of FDC. The trial court held that since public
interest is not prejudiced, the license issued may not be revoked or rescinded by mere executive action.
The fallo reads:
WHEREFORE, having sufficiently established a prima facie proof of violation of its right as a casino
licensee under the MOA, FDC’s application for the issuance of a writ of preliminary injunction is
GRANTED.
This reconsiders the Order dated December 8, 2008 insofar as it denied the issuance of a writ of
preliminary injunction.

Let a writ of preliminary injunction therefore ISSUE to become effective only upon posting of ONE
HUNDRED MILLION PESOS (P100,000,000.00).
SO ORDERED.
The Writ of Preliminary Injunction2 was issued on February 25, 2009.
On February 17, 2009, PAGCOR filed its Motion for Reconsideration and to Dissolve the Preliminary
Injunction for Insufficiency of Bond and Irreparable Injury to the Government, which was opposed by
FDC. By Order issued on March 31, 2009, the RTC denied PAGCOR’s motion for reconsideration of its
Order dated January 30, 2009 that granted a writ of preliminary injunction in favor of FDC.
On May 19, 2009, the CA rejected the petition in CA-G.R. SP No. 107247 for lack of merit.
In dismissing PAGCOR’s petition, the CA threw out PAGCOR’s postulation that the RTC had no
jurisdiction over the case and that the proper remedy is an original action before this Court, as the
corporation is a body equal to the Securities and Exchange Commission (SEC). The appellate court
reasoned that nowhere in Presidential Decree No. (PD) 1869 and Republic Act No. (RA) 9487 does it state
that the instant petition can only be filed with this Court. Moreover, under RA 8799, the quasi-judicial
powers earlier granted to the SEC under PD 902-A were transferred to the RTC, while the powers retained
by the Commission are now subject to appeal to the CA.
An examination of the allegations of the complaint further revealed that it was an original action for
injunction, and under Batas Pampansa Blg. (BP) 129, the RTC shall exercise original jurisdiction over
writs of injunction. Lastly, the CA stressed that the case has been rendered moot and academic, as the
TRO issued by Judge Estoesta lapsed on December 9, 2008 and its issuance has ceased to be a justiciable
controversy. On the other hand, PAGCOR did not assail the writ of preliminary injunction issued by Judge
Estoesta on February 25, 2009 after the CA petition was filed.
In the instant petition, PAGCOR puts forward the following issues for the consideration of the Court, to
wit:
—The Court a quo and the trial court decided the question of substance (i.e. What is the proper remedy
available to a party claiming to be aggrieved by PAGCOR in the exercise of its authority to operate games
of chance/gambling and to license and regulate others to operate games of chance/gambling?) not
theretofore determined by the Supreme Court.
—The trial court’s TRO and later a Writ of Preliminary Injunction in favor of the private respondent
prevented herein Petitioner from implementing the standard Authority to Operate. In issuing such
processes the trial court has so far departed from the accepted and usual course of judicial proceedings, as
to call for an exercise of the power of supervision.
—The trial court’s TRO and later a Writ of Preliminary Injunction in favor of private respondent
prevented herein Petitioner from collecting Government revenues in the form of the new license fee from
private respondent under the standard Authority to Operate. In issuing such processes the trial court has so
far departed from the accepted and usual course of judicial proceedings, as to call for an exercise of the
power of supervision.
—The Court a quo in declaring moot and academic the question of the TRO issued by the trial court had
sanctioned the trial court’s departure from the accepted and usual course of judicial proceedings, as to call
for an exercise of the power of supervision.
5
—The trial court in declaring that herein Petitioner issued the license (MOA) to herein private respondent
under the authority of PD 1869 and not under E.O. 80, Section 5 decided such question of substance in a
way not in accord with law or with the applicable decisions of the Supreme Court.
We synthesize petitioner’s issues to two core issues:
(1) Whether the Manila RTC or this Court has jurisdiction over FDC’s complaint for injunction and
specific performance; and
(2) Did PAGCOR issue the license (MOA) under PD 1869 or under Executive Order No. (EO) 80, Section
5?
On the threshold issue of jurisdiction, PAGCOR insists lack of jurisdiction of the trial court over the
complaint of FDC and, hence, all the processes and writs issued by said court are null and void. It posits
that the proper legal remedy of FDC is not through an injunction complaint before the trial court, but a
petition for review on purely questions of law before this Court or an appeal to the Office of the President.
It heavily relies on Sec. 9 of PD 1869, which states that PAGCOR "shall exercise all the powers, authority
and responsibilities vested in the Securities and Exchange Commission," and Sec. 6 of PD 902-A which
provides for a petition for review to this Court from SEC’s decisions.
We are not convinced.
Jurisdiction of a court over the subject matter of the action is a matter of law and is conferred only by the
Constitution or by statute.3 It is settled that jurisdiction is determined by the allegations of the complaint
or the petition irrespective of whether plaintiff is entitled to all or some of the claims or reliefs asserted.4
A perusal of FDC’s complaint in Civil Case No. 08-120338 easily reveals that it is an action for injunction
based on an alleged violation of contract—the MOA between the parties—which granted FDC the right to
operate a casino inside the Clark Special Economic Zone (CSEZ). As such, the Manila RTC has
jurisdiction over FDC’s complaint anchored on Sec. 19, Chapter II of BP 129, which grants the RTCs
original exclusive jurisdiction over "all civil actions in which the subject of the litigation is incapable of
pecuniary estimation." Evidently, a complaint for injunction or breach of contract is incapable of
pecuniary estimation. Moreover, the RTCs shall exercise original jurisdiction "in the issuance of writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in
any part of their respective regions" under Sec. 21 of BP 129.
PAGCOR’s claim of jurisdiction of this Court over the complaint in question heavily leans on Sec. 9 of
PD 1869, PAGCOR’s Charter, which provides:
Section 9. Regulatory Power.—The Corporation shall maintain a Registry of the affiliated entities and
shall exercise all the powers, authority and responsibilities vested in the Securities and Exchange
Commission over such affiliated entities x x x.
In view of the vestment to PAGCOR by PD 1869 of the powers, authority, and responsibilities of the SEC,
PAGCOR concludes that any decision or ruling it renders has to be brought to this Court via a petition for
review based on Sec. 6 of SEC’s Charter, PD 902-A, which reads:
The aggrieved party may appeal the order, decision or ruling of the Commission sitting en banc to the
Supreme Court by petition for review in accordance with the pertinent provisions of the Rules of Court.
This reasoning is flawed. A scrutiny of PD 1869 demonstrates that it has no procedure for the appeal or
review of PAGCOR’s decisions or orders. Neither does it make any express reference to an exclusive
remedy that can be brought before this Court. Even a review of PD 1869’s predecessor laws—PD 1067-A,

1067-B, 1067-C, 1399, and 1632, as well as its amendatory law, RA 9487––do not confer original
jurisdiction to this Court to review PAGCOR’s actions and decisions.
PAGCOR, however, insists that this Court has jurisdiction over an action contesting its exercise of
licensing and regulatory powers, i.e., the revocation of FDC’s license to operate a casino in CSEZ and that
FDC’s complaint is a case of first impression.
PAGCOR’s argument is bereft of merit.
A similar factual setting was presented by PAGCOR in PAGCOR v. Viola,5 which involves the
controversy between PAGCOR and the Mimosa Regency Casino that operated inside the CSEZ. Mimosa
filed a case for injunction and prayed for the issuance of a TRO before the Pampanga RTC when
PAGCOR decided to close down the casino. In this case, PAGCOR likewise assailed the jurisdiction of
the trial court by claiming that an original action before the CA is the proper remedy.
In PAGCOR v. Viola, we ruled that PAGCOR, in the exercise of its licensing and regulatory powers, has
no quasi-judicial functions, as Secs. 8 and 9 of PD 1869 do not grant quasi-judicial powers to PAGCOR.
As such, direct resort to this Court is not allowed. While we allowed said recourse in Del Mar v.
PAGCOR6 and Jaworski v. PAGCOR,7 that is an exception to the principle of hierarchy of courts on the
grounds of expediency and the importance of the issues involved. More importantly, we categorically
ruled in PAGCOR v. Viola that cases involving revocation of a license falls within the original jurisdiction
of the RTC, thus:
Having settled that PAGCOR’s revocation of MONDRAGON’s authority to operate a casino was not an
exercise of quasi-judicial powers then it follows that the case was properly filed before the Regional Trial
Court. Hence, as the Regional Trial Court had jurisdiction to take cognizance of the case, petitioner’s
contention that the temporary restraining order and the preliminary injunction by the trial court are void
must fail.8
Moreover, it is settled that the normal rule is to strictly follow the hierarchy of courts, thus:
The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily perform the
functions assigned to it by the fundamental charter and immemorial tradition. A direct invocation of this
Court’s original jurisdiction to issue said writs should be allowed only when there are special and
important reasons therefor, clearly and specifically set out in the petition. This is established policy—a
policy that is necessary to prevent inordinate demands upon the Court’s time and attention which are
better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of
the Court’s docket.9
While it is the trial court that has original jurisdiction over FDC’s complaint, PAGCOR nevertheless prays
that this Court "suspend the Rules and directly decide the entire controversy in this proceeding instead of
remanding the same to the trial court."10
In the exercise of its broad discretionary power, we will resolve FDC’s complaint on the merits, instead of
remanding it to the trial court for further proceedings. Moreover, the dispute between the parties involves
a purely question of law—whether the license or MOA was issued pursuant to PD 1869 or Sec. 5, EO 80,
in relation to RA 7227, which does not necessitate a full blown trial. Demands of substantial justice and
equity require the relaxation of procedural rules.11 In Lianga Bay v. Court of Appeals,12 the Court held:
Remand of case to the lower court for further reception of evidence is not necessary where the court is in a
position to resolve the dispute based on the records before it. On many occasions, the Court, in the public
interest and the expeditious administration of justice, has resolved actions on the merits instead of
remanding them to the trial court for further proceedings, such as where the ends of justice would not be
6
subserved by the remand of the case or when public interest demands an early disposition of the case or
where the trial court had already received all the evidence of the parties.
The core issue to be resolved is whether the trial court erred in declaring that PAGCOR issued the license
(MOA) to FDC under the authority of PD 1869 and not under EO 80, Sec. 5.
PAGCOR maintains that the license it issued to the FDC was based on Sec. 5 of EO 80 and that its charter
PD 1869 should be read together with said EO. When Sec. 5 was nullified in Coconut Oil Refiners
Association, Inc. v. Torres,13 the MOA it entered into with FDC was consequently voided.
Such postulation must fail.
Sec. 5 of EO 80 provides:
SECTION 5. Investments Climate in the CSEZ.—Pursuant to Section 5(m) and Section 15 of RA 7227,
the BCDA shall promulgate all necessary policies, rules and regulations governing the CSEZ, including
investment incentives, in consultation with the local government units and pertinent government
departments for implementation by the CDC.
Among others, the CSEZ shall have all the applicable incentives in the Subic Special Economic and Free
Port Zone under RA 7227 and those applicable incentives granted in the Export Processing Zones, the
Omnibus Investments Code of 1987, the Foreign Investments Act of 1991 and new investments laws
which may hereinafter be enacted.
On the other hand, we quote Sec. 13 of RA 7227 in relation to Sec. 5 of EO 80:
Sec. 13. The Subic Bay Metropolitan Authority.—
(a) Creation of the Subic Bay Metropolitan Authority.—A body corporate to be known as the Subic Bay
Metropolitan Authority is hereby created as an operating and implementing arm of the Conversion
Authority.
(b) Powers and functions of the Subic Bay Metropolitan Authority.—The Subic Bay Metropolitan
Authority, otherwise known as the Subic Authority, shall have the following powers and function:
xxxx
7) To operate directly or indirectly or license tourism related activities subject to priorities and standards
set by the Subic Authority including games and amusements, except horse racing, dog racing and casino
gambling which shall continue to be licensed by the Philippine Amusement and Gaming Corporation
(PAGCOR) upon recommendation of the Conversion Authority; to maintain and preserve the forested
areas as a national park.
A reading of the aforequoted provisions does not point to any authority granted to PAGCOR to license
casinos within Subic, Clark, or any other economic zone. As a matter of fact, Sec. 13 of RA 7227 simply
shows that SBMA has no power to license or operate casinos. Rather, said casinos shall continue to be
licensed by PAGCOR. Hence, the source of PAGCOR’s authority lies in its basic charter, PD 1869, as
amended, and neither in RA 7227 nor its extension, EO 80, for the latter merely recognizes PAGCOR’s
power to license casinos. Indeed, PD 1869 empowers PAGCOR to regulate and control all games of
chance within the Philippines, and clearly, RA 7227 or EO 80 cannot be the source of its powers, but its
basic charter, PD 1869.

Basco v. PAGCOR14 points to PD 1869 as the source of authority for PAGCOR to regulate and centralize
all games of chance authorized by existing franchise or law, thus:
P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize thru an
appropriate institution all games of chance authorized by existing franchise or permitted by law" (1st
Whereas Clause, PD 1869). As was subsequently proved, regulating and centralizing gambling operations
in one corporate entity – the PAGCOR, was beneficial not just to the Government but to society in
general. It is a reliable source of much needed revenue for the cash strapped Government. It provided
funds for social impact projects and subjected gambling to "close scrutiny, regulation, supervision and
control of the Government" (4th Whereas Clause, PD 1869).
Lastly, only PD 1869, particularly Secs. 8 and 9 and not any other law, requires registration and affiliation
of all persons primarily engaged in gambling with PAGCOR. We quote Secs. 8 and 9:
TITLE III—AFFILIATION PROVISIONS
Section 8. Registration.—All persons primarily engaged in gambling, together with their allied business,
with contract or franchise from the Corporation, shall register and affiliate their businesses with the
Corporation. The Corporation shall issue the corresponding certificates of affiliation upon compliance by
the registering entity with the promulgated rules and regulations.
Section 9. Regulatory Power.—The Corporation shall maintain a Registry of the affiliated entities, and
shall exercise all the powers, authority and the responsibilities vested in the Securities and Exchange
Commission over such affiliated entities mentioned under the preceding section, including but not limited
to amendments of Articles of Incorporation and By-Laws, changes in corporate term, structure,
capitalization and other matters concerning the operation of the affiliating entities, the provisions of the
Corporation Code of the Philippines to the contrary notwithstanding, except only with respect to original
incorporation.
In the light of the foregoing provisions, it is unequivocal that PAGCOR draws its authority and power to
operate and regulate casinos from PD 1869, and neither from Sec. 5 of EO 80 nor from RA 7227. Hence,
since PD 1869 remains unaffected by the unconstitutionality of Sec. 5 of EO 80, then PAGCOR has no
legal basis for nullifying or recalling the MOA with FDC and replacing it with its new Standard Authority
to Operate (SAO). There is no infirmity in the MOA, as it was validly entered by PAGCOR under PD
1869 and remains valid until legally terminated in accordance with the MOA.1avph!1
The reliance of PAGCOR on Coconut Oil Refiners Association, Inc.15 to buttress its position that the
MOA with FDC can be validly supplanted with the 10-year SAO is clearly misplaced. That case cannot be
a precedent to the instant case, as it dealt solely with the void grant of tax and duty-free incentives inside
CSEZ. The Court ruled in Coconut Oil Refiners Association, Inc. that the tax incentives within the CSEZ
were an invalid exercise of quasi-legislative powers, thus:
In the present case, while Section 12 of Republic Act No. 7227 expressly provides for the grant of
incentives to the SSEZ, it fails to make any similar grant in favor of other economic zones, including the
CSEZ. Tax and duty-free incentives being in the nature of tax exemptions, the basis thereof should be
categorically and unmistakably expressed from the language of the statute. Consequently, in the absence
of any express grant of tax and duty-free privileges to the CSEZ in Republic Act No. 7227, there would be
no legal basis to uphold the questioned portions of two issuances: Section 5 of Executive Order No. 80
and Section 4 of BCDA Board Resolution No. 93-05-034, which both pertain to the CSEZ. (Emphasis
supplied.)
Lastly, the Court has to point out that the issuance of the 10-year SAO by PAGCOR in lieu of the MOA
with FDC is a breach of the MOA. The MOA in question was validly entered into by PAGCOR and FDC
7
on December 23, 1999. It embodied the license and authority to operate a casino, the nature and extent of
PAGCOR’s regulatory powers over the casino, and the rights and obligations of FDC. Thus, the MOA is a
valid contract with all the essential elements required under the Civil Code. The parties are then bound by
the stipulations of the MOA subject to the regulatory powers of PAGCOR. Well-settled is the rule that a
contract voluntarily entered into by the parties is the law between them and all issues or controversies
shall be resolved mainly by the provisions thereof.16
On the revocation, termination, or suspension of the license or grant of authority to operate a casino,
PAGCOR agreed to the following stipulations on the revocation or termination of the MOA, viz:
VI. REVOCATION/TERMINATION
1. This grant of authority may be revoked or suspended at any time at the sole option of PAGCOR by
giving written notice to RNDC [FDC] of such revocation or suspension stating therein the reason(s) for
such revocation or suspension, on any of the following grounds:
a. RNDC makes any default which PAGCOR considers material in the due and punctual performance or
observance of any of the obligations or undertakings contained in the Agreement, and RNDC shall fail to
remedy such default, within fifteen (15) working days after notice specifying the default. Should the
default consist in the non-remittance of the consideration as hereinabove specified, PAGCOR shall, in
addition have the right to proceed against the Surety Bond, unless RNDC was able to cure the default so
specified by PAGCOR within seventy-two (72) hours after notice specifying the default. RNDC shall be
liable for interest at the prevailing commercial rates on all or portion of the amounts due.
b. There shall be any failure on the part of RNDC which PAGCOR considers material to comply with any
provision of the Agreement and RNDC fails to remedy the same within fifteen (15) working days after
notice specifying the default;
c. RNDC has become bankrupt;
d. After the RNDC casino shall have formally commenced gaming and amusement operations within the
CSEZ, RNDC’s continuous cumulative non-operation of the casino for a period of one (1) month except
upon lawful order of the Court or force majeure, provided that upon the cessation of such cause or causes,
RNDC shall immediately continue its casino operations, otherwise, such continuous non-operation for the
period provided above shall be sufficient ground for revocation or suspension;
e. Failure of RNDC to comply with and observe any pertinent law, rule, regulation and/or ordinance
promulgated by a competent authority, including PAGCOR, relative to the operation of the casino;
f. Such other situations analogous to the above.17
Central to the present controversy is the term or period of effectivity of the MOA, as provided under the
definition of terms in Title I and Title II, No. 4, which, for clarity, we reiterate in full:
"Period" refers to the period of time co-terminus with that of the franchise granted to PAGCOR in
accordance with Section 10 of Presidential Decree No. 1869 including any extension thereof;18
xxxx
4. Non-exclusivity. PAGCOR and RNDC agree that the license granted to RNDC to engage in gaming and
amusement operations within the CSEZ shall be non-exclusive and co-terminus with the Charter of
PAGCOR, or any extension thereof, and shall be for the period hereinabove defined.19 (Emphasis
supplied.)

As parties to the MOA, FDC and PAGCOR bound themselves to all its provisions. After all, the terms of a
contract have the force of law between the parties, and courts have no choice but to enforce such contract
so long as they are not contrary to law, morals, good customs, or public policy.20 A stipulation for the
term or period for the effectivity of the MOA to be co-terminus with term of the franchise of PAGCOR
including any extension is not contrary to law, morals, good customs, or public policy.
It is beyond doubt that PAGCOR did not revoke or terminate the MOA based on any of the grounds
enumerated in No. 1 of Title VI, nor did it terminate it based on the period of effectivity of the MOA
specified in Title I and Title II, No. 4 of the MOA. Without explicitly terminating the MOA, PAGCOR
simply informed FDC on July 18, 2008 that it is giving the latter an extension of the MOA on a month-to-
month basis in gross contravention of the MOA. Worse, PAGCOR informed FDC only on October 6,
2008 that the MOA is deemed expired on July 11, 2008 without an automatic renewal and is replaced with
a 10-year SAO. Clearly it is in breach of the MOA’s stipulated effectivity period which is co-terminus
with that of the franchise granted to PAGCOR in accordance with Sec. 10 of PD 1869 including any
extension. Hence, PAGCOR’s disregard of the MOA is without legal basis and must be nullified.
PAGCOR has to respect the December 23, 1999 MOA it entered into with FDC, especially considering
the huge investment poured into the project by the latter in reliance and pursuant to the MOA in question.
WHEREFORE, the petition is hereby DENIED for lack of merit. The Decision dated May 19, 2009 of the
CA in CA-G.R. SP No. 107247 affirming the Orders dated November 18, 2008 and December 4, 2008 of
the RTC, Branch 7 in Manila is hereby AFFIRMED. The writ of injunction issued on February 25, 2009
by the trial court pursuant to the January 30, 2009 Order in Civil Case No. 08-120338 is hereby made
PERMANENT. PAGCOR is ordered to honor and comply with the stipulations of the MOA dated
December 23, 1999, as amended, that it executed with FDC.
SO ORDERED.
B. Permissible delegations (Tarrif powers to the president)
SECTION 28. (1) The rule of taxation shall be uniform and equitable. The Congress shall evolve a
progressive system of taxation.
(2) The Congress may, by law, authorize the President to fix within specified limits, and subject to
such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage
and wharfage dues, and other duties or imposts within the framework of the national development
program of the Government.
(3) Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques,
non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively
used for religious, charitable, or educational purposes shall be exempt from taxation.
(4) No law granting any tax exemption shall be passed without the concurrence of a majority of all
the Members of the Congress.
CONGRESSMAN ENRIQUE T. GARCIA (Second District of Bataan), petitioner,
vs.
THE EXECUTIVE SECRETARY, THE COMMISSIONER OF CUSTOMS, THE NATIONAL
ECONOMIC AND DEVELOPMENT AUTHORITY, THE TARIFF COMMISSION, THE
SECRETARY OF FINANCE, and THE ENERGY REGULATORY BOARD, respondents.
8
FELICIANO, J.:
On 27 November 1990, the President issued Executive Order No. 438 which imposed, in addition to any
other duties, taxes and charges imposed by law on all articles imported into the Philippines, an additional
duty of five percent (5%) ad valorem. This additional duty was imposed across the board on all imported
articles, including crude oil and other oil products imported into the Philippines. This additional duty was
subsequently increased from five percent (5%) ad valorem to nine percent (9%) ad valorem by the
promulgation of Executive Order No. 443, dated 3 January 1991.
On 24 July 1991, the Department of Finance requested the Tariff Commission to initiate the process
required by the Tariff and Customs Code for the imposition of a specific levy on crude oil and other
petroleum products, covered by HS Heading Nos. 27.09, 27.10 and 27.11 of Section 104 of the Tariff and
Customs Code as amended. Accordingly, the Tariff Commission, following the procedure set forth in
Section 401 of the Tariff and Customs Code, scheduled a public hearing to give interested parties an
opportunity to be heard and to present evidence in support of their respective positions.
Meantime, Executive Order No. 475 was issued by the President, on 15 August 1991 reducing the rate of
additional duty on all imported articles from nine percent (9%) to five percent (5%) ad valorem, except in
the cases of crude oil and other oil products which continued to be subject to the additional duty of nine
percent (9%) ad valorem.
Upon completion of the public hearings, the Tariff Commission submitted to the President a "Report on
Special Duty on Crude Oil and Oil Products" dated 16 August 1991, for consideration and appropriate
action. Seven (7) days later, the President issued Executive Order No. 478, dated 23 August 1991, which
levied (in addition to the aforementioned additional duty of nine percent (9%) ad valorem and all other
existing ad valorem duties) a special duty of P0.95 per liter or P151.05 per barrel of imported crude oil
and P1.00 per liter of imported oil products.
In the present Petition for Certiorari, Prohibition and Mandamus, petitioner assails the validity of
Executive Orders Nos. 475 and 478. He argues that Executive Orders Nos. 475 and 478 are violative of
Section 24, Article VI of the 1987 Constitution which provides as follows:
Sec. 24: All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of
local application, and private bills shall originate exclusively in the House of Representatives, but the
Senate may propose or concur with amendments.
He contends that since the Constitution vests the authority to enact revenue bills in Congress, the President
may not assume such power by issuing Executive Orders Nos. 475 and 478 which are in the nature of
revenue-generating measures.
Petitioner further argues that Executive Orders No. 475 and 478 contravene Section 401 of the Tariff and
Customs Code, which Section authorizes the President, according to petitioner, to increase, reduce or
remove tariff duties or to impose additional duties only when necessary to protect local industries or
products but not for the purpose of raising additional revenue for the government.
Thus, petitioner questions first the constitutionality and second the legality of Executive Orders Nos. 475
and 478, and asks us to restrain the implementation of those Executive Orders. We will examine these
questions in that order.
Before doing so, however, the Court notes that the recent promulgation of Executive Order No. 507 did
not render the instant Petition moot and academic. Executive Order No. 517 which is dated 30 April 1992
provides as follows:

Sec. 1. Lifting of the Additional Duty. — The additional duty in the nature of ad valorem imposed on
all imported articles prescribed by the provisions of Executive Order No. 443, as amended, is hereby
lifted; Provided, however, that the selected articles covered by HS Heading Nos. 27.09 and 27.10 of
Section 104 of the Tariff and Customs Code, as amended, subject of Annex "A" hereof, shall continue to
be subject to the additional duty of nine (9%) percent ad valorem.
Under the above quoted provision, crude oil and other oil products continue to be subject to the additional
duty of nine percent (9%) ad valorem under Executive Order No. 475 and to the special duty of P0.95 per
liter of imported crude oil and P1.00 per liter of imported oil products under Executive Order No. 478.
Turning first to the question of constitutionality, under Section 24, Article VI of the Constitution, the
enactment of appropriation, revenue and tariff bills, like all other bills is, of course, within the province of
the Legislative rather than the Executive Department. It does not follow, however, that therefore
Executive Orders Nos. 475 and 478, assuming they may be characterized as revenue measures, are
prohibited to the President, that they must be enacted instead by the Congress of the Philippines. Section
28(2) of Article VI of the Constitution provides as follows:
(2) The Congress may, by law, authorize the President to fix within specified limits, and subject to
such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonage and
wharfage dues, and other duties or imposts within the framework of the national development program of
the Government. (Emphasis supplied)
There is thus explicit constitutional permission 1 to Congress to authorize the President "subject to such
limitations and restrictions is [Congress] may impose" to fix "within specific limits" "tariff rates . . . and
other duties or imposts . . ."
The relevant congressional statute is the Tariff and Customs Code of the Philippines, and Sections 104 and
401, the pertinent provisions thereof. These are the provisions which the President explicitly invoked in
promulgating Executive Orders Nos. 475 and 478. Section 104 of the Tariff and Customs Code provides
in relevant part:
Sec. 104. All tariff sections, chapters, headings and subheadings and the rates of import duty under
Section 104 of Presidential Decree No. 34 and all subsequent amendments issued under Executive Orders
and Presidential Decrees are hereby adopted and form part of this Code.
There shall be levied, collected, and paid upon all imported articles the rates of duty indicated in the
Section under this section except as otherwise specifically provided for in this Code: Provided, that, the
maximum rate shall not exceed one hundred per cent ad valorem.
The rates of duty herein provided or subsequently fixed pursuant to Section Four Hundred One of this
Code shall be subject to periodic investigation by the Tariff Commission and may be revised by the
President upon recommendation of the National Economic and Development Authority.
xxx xxx xxx
(Emphasis supplied)
Section 401 of the same Code needs to be quoted in full:
Sec. 401. Flexible Clause. —
9
a. In the interest of national economy, general welfare and/or national security, and subject to the
limitations herein prescribed, the President, upon recommendation of the National Economic and
Development Authority (hereinafter referred to as NEDA), is hereby empowered: (1) to increase, reduce
or remove existing protective rates of import duty (including any necessary change in classification). The
existing rates may be increased or decreased but in no case shall the reduced rate of import duty be lower
than the basic rate of ten (10) per cent ad valorem, nor shall the increased rate of import duty be higher
than a maximum of one hundred (100) per cent ad valorem; (2) to establish import quota or to ban imports
of any commodity, as may be necessary; and (3) to impose an additional duty on all imports not exceeding
ten (10) per cent ad valorem, whenever necessary; Provided, That upon periodic investigations by the
Tariff Commission and recommendation of the NEDA, the President may cause a gradual reduction of
protection levels granted in Section One hundred and four of this Code, including those subsequently
granted pursuant to this section.
b. Before any recommendation is submitted to the President by the NEDA pursuant to the
provisions of this section, except in the imposition of an additional duty not exceeding ten (10) per cent ad
valorem, the Commission shall conduct an investigation in the course of which they shall hold public
hearings wherein interested parties shall be afforded reasonable opportunity to be present, produce
evidence and to be heard. The Commission shall also hear the views and recommendations of any
government office, agency or instrumentality concerned. The Commission shall submit their findings and
recommendations to the NEDA within thirty (30) days after the termination of the public hearings.
c. The power of the President to increase or decrease rates of import duty within the limits fixed
in subsection "a" shall include the authority to modify the form of duty. In modifying the form of duty, the
corresponding ad valorem or specific equivalents of the duty with respect to imports from the principal
competing foreign country for the most recent representative period shall be used as bases.
d. The Commissioner of Customs shall regularly furnish the Commission a copy of all customs
import entries as filed in the Bureau of Customs. The Commission or its duly authorized representatives
shall have access to, and the right to copy all liquidated customs import entries and other documents
appended thereto as finally filed in the Commission on Audit.
e. The NEDA shall promulgate rules and regulations necessary to carry out the provisions of this
section.
f. Any Order issued by the President pursuant to the provisions of this section shall take effect
thirty (30) days after promulgation, except in the imposition of additional duty not exceeding ten (10) per
cent ad valorem which shall take effect at the discretion of the President. (Emphasis supplied)
Petitioner, however, seeks to avoid the thrust of the delegated authorizations found in Sections 104 and
401 of the Tariff and Customs Code, by contending that the President is authorized to act under the Tariff
and Customs Code only "to protect local industries and products for the sake of the national economy,
general welfare and/or national security." 2 He goes on to claim that:
E.O. Nos. 478 and 475 having nothing to do whatsoever with the protection of local industries and
products for the sake of national economy, general welfare and/or national security. On the contrary, they
work in reverse, especially as to crude oil, an essential product which we do not have to protect, since we
produce only minimal quantities and have to import the rest of what we need.
These Executive Orders are avowedly solely to enable the government to raise government finances,
contrary to Sections 24 and 28 (2) of Article VI of the Constitution, as well as to Section 401 of the Tariff
and Customs Code. 3 (Emphasis in the original)

The Court is not persuaded. In the first place, there is nothing in the language of either Section 104 or of
401 of the Tariff and Customs Code that suggest such a sharp and absolute limitation of authority. The
entire contention of petitioner is anchored on just two (2) words, one found in Section 401 (a)(1): "existing
protective rates of import duty," and the second in the proviso found at the end of Section 401 (a):
"protection levels granted in Section 104 of this Code . . . . " We believe that the words "protective" and
''protection" are simply not enough to support the very broad and encompassing limitation which
petitioner seeks to rest on those two (2) words.
In the second place, petitioner's singular theory collides with a very practical fact of which this Court may
take judicial notice — that the Bureau of Customs which administers the Tariff and Customs Code, is one
of the two (2) principal traditional generators or producers of governmental revenue, the other being the
Bureau of Internal Revenue. (There is a third agency, non-traditional in character, that generates lower but
still comparable levels of revenue for the government — The Philippine Amusement and Games
Corporation [PAGCOR].)
In the third place, customs duties which are assessed at the prescribed tariff rates are very much like taxes
which are frequently imposed for both revenue-raising and for regulatory purposes. 4 Thus, it has been
held that "customs duties" is "the name given to taxes on the importation and exportation of commodities,
the tariff or tax assessed upon merchandise imported from, or exported to, a foreign country." 5 The
levying of customs duties on imported goods may have in some measure the effect of protecting local
industries — where such local industries actually exist and are producing comparable goods.
Simultaneously, however, the very same customs duties inevitably have the effect of producing
governmental revenues. Customs duties like internal revenue taxes are rarely, if ever, designed to achieve
one policy objective only. Most commonly, customs duties, which constitute taxes in the sense of
exactions the proceeds of which become public funds 6 — have either or both the generation of revenue
and the regulation of economic or social activity as their moving purposes and frequently, it is very
difficult to say which, in a particular instance, is the dominant or principal objective. In the instant case,
since the Philippines in fact produces ten (10) to fifteen percent (15%) of the crude oil consumed here, the
imposition of increased tariff rates and a special duty on imported crude oil and imported oil products may
be seen to have some "protective" impact upon indigenous oil production. For the effective, price of
imported crude oil and oil products is increased. At the same time, it cannot be gainsaid that substantial
revenues for the government are raised by the imposition of such increased tariff rates or special duty.
In the fourth place, petitioner's concept which he urges us to build into our constitutional and customs law,
is a stiflingly narrow one. Section 401 of the Tariff and Customs Code establishes general standards with
which the exercise of the authority delegated by that provision to the President must be consistent: that
authority must be exercised in "the interest of national economy, general welfare and/or national security."
Petitioner, however, insists that the "protection of local industries" is the only permissible objective that
can be secured by the exercise of that delegated authority, and that therefore "protection of local
industries" is the sum total or the alpha and the omega of "the national economy, general welfare and/or
national security." We find it extremely difficult to take seriously such a confined and closed view of the
legislative standards and policies summed up in Section 401. We believe, for instance, that the protection
of consumers, who after all constitute the very great bulk of our population, is at the very least as
important a dimension of "the national economy, general welfare and national security" as the protection
of local industries. And so customs duties may be reduced or even removed precisely for the purpose of
protecting consumers from the high prices and shoddy quality and inefficient service that tariff-protected
and subsidized local manufacturers may otherwise impose upon the community.
It seems also important to note that tariff rates are commonly established and the corresponding customs
duties levied and collected upon articles and goods which are not found at all and not produced in the
Philippines. The Tariff and Customs Code is replete with such articles and commodities: among the more
interesting examples are ivory (Chapter 5, 5.10); castoreum or musk taken from the beaver (Chapter 5,
5.14); Olives (Chapter 7, Notes); truffles or European fungi growing under the soil on tree roots (Chapter
10
7, Notes); dates (Chapter 8, 8.01); figs (Chapter 8, 8.03); caviar (Chapter 16, 16.01); aircraft (Chapter 88,
88.0l); special diagnostic instruments and apparatus for human medicine and surgery (Chapter 90, Notes);
X-ray generators; X-ray tubes;
X-ray screens, etc. (Chapter 90, 90.20); etc. In such cases, customs duties may be seen to be imposed
either for revenue purposes purely or perhaps, in certain cases, to discourage any importation of the items
involved. In either case, it is clear that customs duties are levied and imposed entirely apart from whether
or not there are any competing local industries to protect.
Accordingly, we believe and so hold that Executive Orders Nos. 475 and 478 which may be conceded to
be substantially moved by the desire to generate additional public revenues, are not, for that reason alone,
either constitutionally flawed, or legally infirm under Section 401 of the Tariff and Customs Code.
Petitioner has not successfully overcome the presumptions of constitutionality and legality to which those
Executive Orders are entitled. 7
The conclusion we have reached above renders it unnecessary to deal with petitioner's additional
contention that, should Executive Orders Nos. 475 and 478 be declared unconstitutional and illegal, there
should be a roll back of prices of petroleum products equivalent to the "resulting excess money not be
needed to adequately maintain the Oil Price Stabilization Fund (OPSF)." 8
WHEREFORE, premises considered, the Petition for Certiorari, Prohibition and Mandamus is hereby
DISMISSED for lack of merit. Costs against petitioner.
SO ORDERED.
PHILIPPINE INTERISLAND SHIPPING ASSOCIATION OF THE PHILIPPINES,
vs.
COURT OF APPEALS, UNITED HARBOR PILOTS' ASSOCIATION OF THE PHILIPPINES
On February 3, 1986, shortly before the presidential elections, President Ferdinand E. Marcos, responding
to the clamor of harbor pilots for an increase in pilotage rates, issued Executive Order No. 1088,
PROVIDING FOR UNIFORM AND MODIFIED RATES FOR PILOTAGE SERVICES RENDERED
TO FOREIGN AND COASTWISE VESSELS IN ALL PRIVATE AND PUBLIC PORTS. The executive
order increased substantially the rates of the existing pilotage fees previously fixed by the PPA.
However, the PPA refused to enforce the executive order on the ground that it had been drawn hastily and
without prior consultation: that its enforcement would create disorder in the ports as the operators and
owners of the maritime vessels had expressed opposition to its implementation; and that the increase in
pilotage, as mandated by it, was exorbitant and detrimental to port operations. 4
The UHPAP then announced its intention to implement E.O. No. 1088 effective November 16, 1986. This
in turn drew a warning from the PPA that disciplinary sanctions would be applied to those who would
charge rates under E.O. No. 1088. The PPA instead issued Memorandum Circular No. 43-86, fixing
pilotage fees at rates lower than those provided in E.O. No. 1088.
Consequently, the UHPAP filed on January 7, 1987 a complaint for injunction with the Regional Trial
Court of Manila, against the then Minister of Transportation and Communications, Hernando Perez, and
PPA General Manager, Primitivo S. Soils, Jr. It sought a writ of preliminary mandatory injunction for the
immediate implementation of E.O. No. 1088, as well as a temporary restraining order to stop PPA officials
from imposing disciplinary sanctions against UHPAP members charging rates in accordance with E.O.
No. 1088.

The case, docketed as Civil Case No. 87-38913, was raffled to Branch 28 of the Regional Trial Court of
Manila which issued a temporary restraining order, enjoining the PPA from threatening the UHPAP, its
officers and its members with suspension and other disciplinary action for collecting pilotage fees
pursuant to E.O. No. 1088.
On March 16, 1987, the Chamber of Maritime Industries of the Philippines, William Lines, Inc., Loadstar
Shipping Co., Inc. and Delsen Transport Lines, Inc., after obtaining leave, filed a joint answer in
intervention.
On February 26, 1988, while the case was pending, the PPA issued Administrative Order No. 02-88,
entitled IMPLEMENTING GUIDELINES ON OPEN PILOTAGE SERVICE. The PPA announced in its
order that it was leaving to the contracting parties, i.e., the shipping lines and the pilots, the fixing of
mutually acceptable rates for pilotage services, thus abandoning the rates fixed by it (PPA) under
Memorandum Circular No. 43-86, as well as those provided in E.O. No. 1088. The administrative order
provided:
Sec. 3. Terms/Conditions on Pilotage Service. — The shipping line or vessel's agent/representative
and the harbor pilot/firm chosen by the former shall agree between themselves, among others, on what
pilotage service shall be performed, the use of tugs and their rates, taking into consideration the
circumstances stated in Section 12 of PPA AO No. 03-85, and such other conditions designed to ensure
the safe movement of the vessel in pilotage areas/grounds.
The PPA then moved to dismiss the case, contending that the issuance of its order had rendered the case
moot and academic and that consequently E.O. No. 1088 had ceased to be effective. The UHPAP opposed
the motion. Together with the Manila Pilots' Association (MPA), it filed on May 25, 1988 a petition for
certiorari and prohibition in the RTC-Manila, questioning the validity of A.O. No. 02-88. This petition
was docketed as Civil Case No. 88-44726 (United Harbor Pilots' Association and Manila Pilots'
Association v. Hon. Rainerio Reyes, as Acting Secretary of the Department of Transportation and
Communications and Chairman of the Philippine Ports Authority (PPA) and Maximo Dumlao, Jr., as
General Manager of the Philippine Ports Authority (PPA), et al.) and raffled to Branch 2 of RTC-Manila.
The factual antecedents of this case are discussed in G.R. No. 100481 below.
Meanwhile, in Civil Case 87-38913, the court, without resolving the motion to dismiss filed by the PPA,
rendered a decision 5 holding that A.O. No. 02-88 did not render the case moot and academic and that the
PPA was under obligation to comply with E.O. No. 1088 because the order had the force of law which the
PPA could not repeal.
The then Transportation Minister Hernando Perez and the PPA filed a petition for review. The petition
was filed in this Court which later referred the case to the Court of Appeals where it was docketed as CA
G.R. SP. No. 18072. On the other hand the intervenors appealed to the Court of Appeals where this case
was docketed as CA G.R. No. 21590. The two cases were then consolidated.
In a decision rendered on October 4, 1991, the Twelfth Division 6 of the Court of Appeals affirmed the
decision of the trial court, by dismissing CA G.R. No. 21590 and denying CA G.R. SP. No. 18072. Hence,
this petition by the Secretary of Transportation and Communications and the PPA. The intervenor
shipping lines did not appeal.
G.R. No. 100481
Meanwhile, in a petition for certiorari filed before RTC-Manila, Branch 2 (Civil Case No. 88-44726), the
UHPAP and the MPA sought the annulment of A.O. No. 02-88. which in pertinent parts provided:
11
Sec. 1. Statement of Policy. — It is hereby declared that the provision of pilotage in
ports/harbors/areas defined as compulsory in Section 8 of PPA Administrative Order No. 03-85, entitled,
"Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine
Ports" shall be open to all licensed harbor pilots/pilotage firms/associations appointed/accredited by this
authority to perform pilotage service.
Sec. 2. Persons Authorized to Render Pilotage. — The following individuals, persons or groups shall
be appointed/accredited by this Authority to provide pilotage service:
a. Harbor Pilots of the present Pilotage Associations of the different pilotage districts in the
Philippines. Their probationary training as required under Section 31 of PPA AO No. 03-85 shall be
undertaken by any member of said Association.
b. Members/employees of any partnership/corporation or association, including Filipino
shipmasters/ captains of vessel (domestic/foreign) of Philippine Registry and individuals who meet the
minimum qualifications and comply with the requirements prescribed in Sec. 29 of PPA AO No. 03-85,
aforestated, and who are appointed by said firm or association and accredited as harbor pilots by this
authority. New Harbor Pilots who wish to be appointed/accredited by PPA under the open pilotage system
either as an individual pilot or as a member of any Harbor Pilot partnership/association shall be required to
undergo a practical examination, in addition to the written examination given by the Philippine Coast
Guard, prior to their appointment/accreditation by this Authority.
The UHPAP and MPA, as petitioners below, contended (1) that A.O. No. 02-88 was issued without the
benefit of a public hearing; (2) that E.O. No. 1088 had not been repealed by any other Executive Order or
Presidential Decree and, therefore, should be given effect; and (3) that A.O. No. 02-88 contravened P.D.
No. 857.
On August 21, 1989, the Philippine Interisland Shipping Association, Conference of Interisland
Shipowners and Operators, United Petroleum Tanker Operators of the Philippines, Lighterage Association
of the Philippines, and Pilotage Integrated Services Corp., were allowed to intervene.
On September 8, 1989, a writ of preliminary injunction was issued by the court, enjoining the PPA from
implementing A.O. No. 02-88 and, on October 26, 1989, judgment was rendered in favor of the petitioners
therein. The dispositive portion of the court's decision 7 reads:
WHEREFORE, for all of the foregoing, the petition is hereby granted.
1. Respondents are hereby declared to have acted in excess of jurisdiction and with grave abuse
of discretion amounting to lack of jurisdiction in approving Resolution No. 860 and in enacting Philippine
Ports Authority Administrative Order No. 02-88, the subject of which is "Implementing Guidelines on
Open Pilotage Service";
2. Philippine Ports Authority Administrative Order No. 02-88 is declared null and void;
3. The preliminary injunction issued on September 8, 1989 is made permanent; and
4. Without costs.
SO ORDERED.
Respondents and the intervenors below filed a joint petition for certiorari in the Court of Appeals (CA
G.R. SP No. 19570), assailing the decision of the trial court. But their petition was dismissed for lack of
jurisdiction on the ground that the issue raised was purely legal.
 12

The issues raised are:

The parties separately filed petitions for review before this Court. The first one, by the PPA and its
officers, was docketed as G.R. No. 100109 (Hon. Pete Nicomedes Prado, Philippine Ports Authority and
Commodore Rogelio Dayan v. United Harbor Pilots' Association of the Philippines and Manila Pilots'
Association), while the second one, by the intervenors, was docketed as G.R. No. 100481 (Philippine
Interisland Shipping Association of the Philippines, Conference of Interisland Ship Owners and Operators,
United Petroleum Tanker Operators Association of the Philippines, Inc. v. The Court of Appeals. United
Harbor Pilots' Association of the Philippines and Manila Pilots' Association.)
The petition filed by the government in G.R. No. 100109 was dismissed for failure of petitioners to show
that the Court of Appeals committed a reversible error. 8 On the other hand, the petition of the intervenors
in G.R. No. 100481 was given due course.
I. WHETHER OR NOT RESPONDENT COURT OF APPEALS ERRED IN AFFIRMING THE
CHALLENGED DECISION OF RTC-MANILA, BRANCH 41, WHICH RULED THAT:
(A) CIVIL CASE NO. 87-38913 HAS NOT BECOME MOOT AND ACADEMIC WITH THE
ISSUANCE OF ADMINISTRATIVE ORDER NO. 02-88; AND
(B) HEREIN PETITIONERS ARE BOUND TO COMPLY WITH E.O. NO. 1088;
II. WHETHER OR NOT THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN
DISMISSING CA G.R. SP. NO. 19570 FOR LACK OF JURISDICTION?

G.R. No. 107720 III. WHETHER OR NOT RESPONDENT JUDGE NAPOLEON FLOJO COMMITTED GRAVE
ABUSE OF DISCRETION IN ASSUMING JURISDICTION OVER THE PETITIONS FOR
Following the denial of its petition in G.R. No. 100109, the PPA issued on July 31, 1992, Administrative CONTEMPT FILED BY PRIVATE RESPONDENTS AS A RESULT OF THE ISSUANCE OF A.O.
Order No. 05-92. placing harbor pilots under the control of the PPA with respect to the scheduling and NO. 05-92?
assignment of service of vessels. The PPA cited as justification "pilotage delays . . . under the set-up
where private respondents (UHPAP & MPA) assign the pilots. Intentionally or otherwise, several vessels These issues will be discussed in seriatim.
do not receive the pilotage service promptly, causing them operational disruptions and additional
expenses/costs." 9 A. Whether Executive Order No. 1088 is Valid and
Petitioners are Bound to Obey it
Private respondents UHPAP and MPA viewed the matter differently. On October 28, 1992, they asked the (G.R. Nos. 103 716-17)
RTC-Manila, Branch 2 which heard and decided Civil Case No. 88-44726 to cite PPA officials in
contempt of court. On the same day, the trial court issued an order restraining the herein petitioners from Executive Order No. 1088 reads:
implementing Administrative Order No. 05-92. However, the PPA proceeded to implement its order,
prompting the UHPAP and MPA to move again to cite petitioners in contempt, even as they questioned EXECUTIVE ORDER No. 1088
the validity of A.O. No. 05-92. Accordingly the trial court issued another order on November 4, 1992,
reiterating its previous order of October 28, 1992 to petitioners to refrain from implementing A.O. No. 05- PROVIDING FOR UNIFORM AND MODIFIED RATES FOR PILOTAGE SERVICES RENDERED
92 pending resolution of the petitions. TO FOREIGN AND COASTWISE VESSELS IN ALL PRIVATE OR PUBLIC PHILIPPINE PORTS.

Making a special appearance, petitioners questioned the jurisdiction of the court and moved for the
dismissal of the petitions for contempt. Allegedly to prevent the disruption of pilotage services, petitioners
created a special team of reserve pilots to take over the pilotage service in the event members of
UHPAP/MPA refused to render pilotage services.
For the third time respondents moved to cite petitioners in contempt of court. Again petitioners questioned
the court's jurisdiction and manifested that they were adopting their previous motion to dismiss petitions
for contempt filed against them.
On November 17, 1992, the trial court denied the petitioners' motion and set the contempt petitions for
hearing on November 19, 1992. Hence, this petition, which was docketed as G.R. No. 107720 (Hon. Jesus
B. Garcia, Jr. in his capacity as Secretary of Transportation and Communications and Chairman of the
Philippine Ports Authority, Commodore Rogelio A. Dayan, in his capacity as General Manager of the
Philippine Ports Authority and Simeon T. Silva, Jr., in his capacity as the South Harbor Manager,
Philippine Ports Authority v. Hon. Napoleon Flojo, in his capacity as the Presiding Judge of Branch 2,
RTC, Manila, UHPAP and MPA).
WHEREAS, the United Harbor Pilots' Association of the Philippines has clamored for the rationalization
of pilotage service charges, through the imposition of uniform and adjusted rates for foreign and coastwise
vessels in all Philippine ports, whether public or private;
WHEREAS, the plea of the Association has been echoed by a great number of Members of Parliament and
other persons and groups;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers
vested in me by the Constitution and by law, do hereby direct and order:
Sec. 1. The following shall be the rate of pilotage fees or charges based on tonnage for services
rendered to both foreign and coastwise vessels;
For Foreign Vessels Rate in US $ or
its Peso
Equivalent

Pending resolution of this case, the Court ordered the parties to maintain the status quo as of October 31, Less than 500GT $ 30.00
1992. 500GT to 2,500GT 43.33
2,500GT to 5,000GT 71.33
II. THE ISSUES AND THEIR DISPOSITION 5,000GT to 10,000GT 133.67
10,000GT to 15,000GT 181.67
 13

15,000GT to 20,000GT 247.00 There is no basis for petitioners' argument that rate fixing is merely an exercise of administrative power,
20,000GT to 30,000GT 300.00 that if President Marcos had power to revise the rates previously fixed by the PPA through the issuance of
30,000GT to 40,000GT 416.67 E.O. No. 1088, the PPA could in turn revise those fixed by the President, as the PPA actually did in A.O.
40,000GT to 60,000GT 483.33 No. 43-86, which fixed lower rates of pilotage fees, and even entirely left the fees to be paid for pilotage
60,000GT to 80,000GT 550.00 to the agreement of the parties to a contract. The orders previously issued by the PPA were in the nature of
80,000GT to 100,000GT 616.67 subordinate legislation, promulgated by it in the exercise of delegated power. As such these could only be
100,000GT to 120,000GT 666.67 amended or revised by law, as the President did by E.O. No. 1088.
120,000GT to 130,000GT 716.67
130,000GT to 140,000GT 766.67 It is not an answer to say that E.O. No. 1088 should not be considered a statute because that would imply
the withdrawal of power from the PPA. What determines whether an act is a law or an administrative
Over 140,000 gross tonnage $0.05 or its peso equivalent every excess tonnage. Rate for docking and issuance is not its form but its nature. Here, as we have already said, the power to fix the rates of charges
undocking anchorage, conduction and shifting other related special services is equal to 100%. Pilotage for services, including pilotage service, has always been regarded as legislative in character.
services shall be compulsory in government and private wharves or piers,
Nor is there any doubt of the power of the then President to fix rates. On February 3, 1986, when he issued
For Coastwise Vessels: Regular E.O. No. 1088, President Marcos was authorized under Amendment No. 6 of the 1973 Constitution to
exercise legislative power, just as he was under the original 1973 Constitution, when he issued P.D. No.
100 and under 500 gross tons P41.70 857 which created the PPA, endowing it with the power to regulate pilotage service in Philippine ports.
500 and under 600 gross tons 55.60 Although the power to fix rates for pilotage had been delegated to the PPA, it became necessary to
600 and under 1,000 gross tons 69.60 rationalize the rates of charges fixed by it through the imposition of uniform rates. That is what the
1,000 and under 3,000 gross tons 139.20 President did in promulgating E.O. No. 1088. As the President could delegate the ratemaking power to the
3,000 and under 5,000 gross tons 300.00 PPA, so could he exercise it in specific instances without thereby withdrawing the power vested by P.D.
5,000 and over gross tons No. 857, §20(a) in the PPA "to impose, fix, prescribe, increase or decrease such rates, charges or fees . . .
for the services rendered by the Authority or by any private organization within a Port District."
Sec. 2. With respect to foreign vessels, payment of pilotage services shall be made in dollars or in
pesos at the prevailing exchange rate. It is worthy to note that E.O. No. 1088 provides for adjusted pilotage service rates without withdrawing
the power of the PPA to impose, prescribe, increase or decrease rates, charges or fees. The reason is
Sec. 3. All orders, letters of instruction, rules, regulations and other issuances inconsistent with this because E.O. No. 1088 is not meant simply to fix new pilotage rates. Its legislative purpose is the
Executive Order are hereby repealed or amended accordingly. "rationalization of pilotage service charges, through the imposition of uniform and adjusted rates for
foreign and coastwise vessels in all Philippine ports."
Sec. 4. This Executive Order shall take effect immediately.
The case presented is similar to the fixing of wages under the Wage Rationalization Act (R.A. No. 6727)
Done in the City of Manila, this 3rd day of February, in the year of our Lord, nineteen hundred and eighty- whereby minimum wages are determined by Congress and provided by law, subject to revision by Wage
six. Boards should later conditions warrant their revision. It cannot be denied that Congress may intervene
anytime despite the existence of administrative agencies entrusted with wage-fixing powers, by virtue of
(Sgd.) FERDINAND E. MARCOS the former's plenary power of legislation. When Congress does so, the result is not the withdrawal of the
President of the Philippines powers delegated to the Wage Boards but cooperative lawmaking in an area where initiative and expertise
are required. The Court of Appeals is correct in holding that —
By the President:
The power of the PPA to fix pilotage rates and its authority to regulate pilotage still remain
(Sgd.) JUAN C. TUVERA notwithstanding the fact that a schedule for pilotage fees has already been prescribed by the questioned
Presidential Executive Assistant executive order. PPA is at liberty to fix new rates of pilotage subject only to the limitation that such new
rates should not go below the rates fixed under E.O. 1088. The rationale behind the limitation is no
Petitioners contend that E.O. No. 1088 was merely an administrative issuance of then President Ferdinand different from what has been previously stated. Being a mere administrative agency, PPA cannot validly
E. Marcos and, as such, it could be superseded by an order of the PPA. They argue that to consider E.O. issue orders or regulations that would have the effect of rendering nugatory the provisions of the
No. 1088 a statute would be to deprive the PPA of its power under its charter to fix pilotage rates. legislative issuance such as those of the executive order in question.(emphasis supplied)

The contention has no merit. The fixing of rates is essentially a legislative power. 10 Indeed, the great
battle over the validity of the exercise of this power by administrative agencies was fought in the 1920s on
the issue of undue delegation precisely because the power delegated was legislative. The growing
complexity of modern society, the multiplication of the subjects of governmental regulations and the
increased difficulty of administering the laws made the creation
of administrative agencies and the delegation to them of legislative power necessary. 11
Petitioner refused to implement E.O. No. 1088 on the ground that it was issued without notice to the PPA
and that it was nothing but a "political gimmick" resorted to by then President Marcos. This perception
obviously stemmed from the fact that E.O. No. 1088 was issued shortly before the presidential elections in
1986.
But lack of notice to the PPA is not proof that the necessary factual basis for the order was wanting. To the
contrary, the presumption is that the President had before him pertinent data on which he based the rates

prescribed in his order. Nor is the fact that the order might have been issued to curry favor with the voters
a reason for the PPA to refuse to enforce the order in question. It is not unusual for lawmakers to have in
mind partisan political consideration in sponsoring legislation. Yet that is not a ground for invalidating a
statute.
Moreover, an inquiry into legislative motivation is not proper since the only relevant question is whether
in issuing it the President violated constitutional and statutory restrictions on his power. The PPA did not
have any objection to the order based on constitutional ground. In fact the nearest to a challenge on
constitutional grounds was that mounted not by the PPA but by the intervenors below which claimed that
the rates fixed in E.O. No. 1088 were exorbitant and unreasonable. However, both the trial court and the
Court of Appeals overruled the objections and the intervenors apparently accepted the ruling because they
did not appeal further to this Court.
There is therefore, no legal basis for PPA's intransigence, after failing to get the new administration of
President Aquino to revoke the order by issuing its own order in the form of A.O. No. 02-88. It is
noteworthy that if President Marcos had legislative power under Amendment No. 6 of the 1973
Constitution 12 so did President Aquino under the Provisional (Freedom) Constitution 13 who could, had
she thought E.O. No. 1088 to be a mere "political gimmick," have just as easily revoked her predecessor's
order. It is tempting to ask if the administrative agency would have shown the same act of defiance of the
President's order had there been no change of administration. What this Court said in La Perla Cigar and
Cigarette Factory v. Capapas, 14 mutatis mutandis may be applied to the cases at bar:
Was it within the powers of the then Collector Ang-angco to refuse to collect the duties that must be paid?
That is the crucial point of inquiry. We hold that it was not.
Precisely, he had to give the above legal provisions, quite explicit in character, force and effect. His
obligation was to collect the revenue for the government in accordance with existing legal provisions,
executive agreements and executive orders certainly not excluded. He would not be living up to his
official designation if he were permitted to act otherwise. He was not named Collector of Customs for
nothing. . . . .
Certainly, if the President himself were called upon to execute the laws faithfully, a Collector of Customs,
himself a subordinate executive official, cannot be considered as exempt in any wise from such an
obligation of fealty. Similarly, if the President cannot suspend the operation of any law, it would be
presumptuous in the extreme for one in the position of then Collector Ang-angco to consider himself as
possessed of such a prerogative. . . .
We conclude that E.O. No. 1088 is a valid statute and that the PPA is duty bound to comply with its
provisions. The PPA may increase the rates but it may not decrease them below those mandated by E.O.
No. 1088. Finally, the PPA cannot refuse to implement E.O. No. 1088 or alter it as it did in promulgating
Memorandum Circular No. 43-86. Much less could the PPA abrogate the rates fixed and leave the fixing
of rates for pilotage service to the contracting parties as it did through A. O. No. 02-88, §3. Theretofore
the policy was one of governmental regulation of the pilotage business. By leaving the matter to the
determination of the parties, the PPA jettisoned this policy and changed it to laissez-faire, something
which only the legislature, or whoever is vested with lawmaking authority, could do.
B. Whether the Court of Appeals had Jurisdiction over the
Appeal of Intervenors from the Decision of the
Trial Court Invalidating Administrative
Order No. 02-88 of the PPA
(G.R. No. 100481)
14
The Court of Appeals dismissed the joint appeal of the government and the intervenors from the trial
court's decision in Civil Case No. 88-44726 on the ground that the issues raised were purely legal
questions. 15 The appellate court stated:
After a painstaking review of the records We resolved to dismiss the petition for lack of jurisdiction.
From the facts, it is clear that the main issue proffered by the appellant is whether or not the respondent
Philippine Ports Authority could validly issue rules and regulations adopting the "open pilotage policy"
pursuant to its charter (P.D. 857).
xxx xxx xxx
It must be noted that while the court a quo had clearly recognized the intricate legal issue involved, it
nevertheless decided it on the merits which apparently resolved only the procedural aspect that justified it
in declaring the questioned order as null and void. While We recognize the basic requirements of due
process, the same cannot take precedence in the case at bar in lieu of the fact that the resolution of the
present case is purely a legal question.
Moreover, it appears that appellants in the court below had filed a manifestation and motion waiving their
presentation of evidence. Instead, they opted to submit a comprehensive memorandum of the case on the
ground that the pivotal issue raised in the petition below is purely legal in character. (p. 231, Records)
At this juncture, We are at a loss why appellants had elevated the present action before Us where at the
outset they already noted that the issue is purely legal.
If in the case of Murillo v. Consul (UDK-9748, Resolution en banc, March 1, 1990) the Supreme Court
laid down the rule that "if an appeal by notice of appeal is taken from the Regional Trial Court to the
Court of Appeals, and in the latter Court, the appellant raised naught but issues of law, the appeal should
be dismissed for lack of jurisdiction (page 5, Resolution in Murillo)," then with more reason where as in
the case at bar public-appellants thru the Office of the Solicitor General in their memorandum manifested
that the controversy has reference to the pure legal question of the validity of the questioned
administrative order. Consequently, We have no other recourse but to dismiss the petition on the strength
of these pronouncements.
As already stated, from this decision, both the government and the intervenors separately brought petitions
for review to this Court. In G.R. No. 100109, the government's petition was dismissed for lack of showing
that the appellate court committed reversible error. The dismissal of the government's petition goes far to
sustain the dismissal of the intervenors' petition in G.R. No. 100481 for the review of the same decision of
the Court of Appeals. After all, the intervenors' petition is based on substantially the same grounds as
those stated in the government's petition. It is now settled that the dismissal of a petition for review on
certiorari is an adjudication on the merits of a controversy. 16 Such dismissal can only mean that the
Supreme Court agrees with the findings and conclusions of the Court of Appeals or that the decision
sought to be reviewed is correct. 17
It is significant to note that the Secretary of Transportation and Communications and the PPA, petitioners
in G.R. No. 100109, have conceded the finality of the dismissal of their appeal.18 Thus, the administrative
policy, the validity of which herein petitioners seek to justify by their appeal, has already been abandoned
by the very administrative agency which adopted it, with the result that the question of validity of A.O.
No. 02-88 is now moot and academic.
C. Whether the Trial Court has Jurisdiction to Hear and
Decide the Contempt Charges
against Petitioners

(G.R. No. 107720)
As already noted, following the dismissal of the government's appeal in G.R. No. 100109, the PPA
abandoned A.O. No. 02-88 which provided for "Open Pilotage System." But it subsequently promulgated
Administrative Order No. 05-92, under which the PPA assumed the power of scheduling and assigning
pilots to service vessels, allegedly regardless of whether the pilots assigned are or are not members of the
UHPAP and the MPA which theretofore had been the exclusive agencies rendering pilotage service in
Philippine ports. The UHPAP and the MPA saw the adoption of this system as a return to the "Open
Pilotage System" and, therefore, a violation of the trial court's decision invalidating the "Open Pilotage
System." They considered this to be a contempt of the trial court.
Petitioners moved to dismiss the motions for contempt against them. They contend that even if the
motions were filed as incidents of Civil Case No. 88-44726, the RTC-Manila, Branch 2 did not have
jurisdiction to hear them because the main case was no longer before the court and the fact was that the
contempt citation was not an incident of the case, not even of its execution, but a new matter raising a new
cause of action which must be litigated in a separate action, even as petitioners denied they had committed
any contumacious act by the issuance of A.O. No. 05-92.
Private respondents maintained that their petitions were mere incidents of Civil Case No. 88-44726 and
that the trial court has jurisdiction because in fact this Court had not yet remanded the case to the court a
quo for execution of its decision. Private respondents complain that petitioners are trying to circumvent
the final and executory decision of the court in Civil Case No. 88-44726, through the issuance of A.O. No.
05-92.
As already noted, however, the decision of the trial court in Civil Case No. 88-44726 enjoined petitioners
from implementing the socalled "Open Pilotage System" embodied in A.O. No. 02-88. If, as alleged, A.O.
No. 05-92 is in substance a reenactment of A.O. No. 02-88, then there is basis for private respondents'
invocation of the trial court's jurisdiction to punish for contempt.
Still it is argued that the trial court lost jurisdiction over Civil Case No. 887426, upon the perfection of
their appeal from its decision. That is indeed true. "The appeal transfers the proceedings to the appellate
court, and this last court becomes thereby charged with the authority to deal with contempts committed
after perfection of the appeal."19 The trial court would have jurisdiction only in the event of an attempt to
block execution of its decision and that would be after the remand of the case to the trial court. 20 Until
then the trial court would have no jurisdiction to deal with alleged contemptuous acts.
The fly in the ointment, however, is that by accepting the dismissal of their petition for review in G.R. No.
100109, petitioners rendered execution of the decision of the trial court superfluous. Any attempt by them,
therefore, to disobey the court's final injunction as embodied in its decision would be properly subject to
punishment for contempt. Petitioners' contention that private respondents' complaint must be the subject of
a separate action would nullify contempt proceedings as means of securing obedience to the lawful
processes of a court. Petitioners' theory would reward ingenuity and cunning in devising orders which
substantially are the same as the order previously prohibited by the court.
We hold that the trial court has jurisdiction to hear the motions for contempt filed by private respondent,
subject to any valid defense which petitioners may interpose.
III. JUDGMENT
WHEREFORE, the several petitions in these cases are DISMISSED.
SO ORDERED.
15
EMERGENCY POWERS TO THE PRESIDENT
SECTION 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the President,
for a limited period and subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next adjournment thereof.
ARANETA VS DINGLASAN
TUASON, J.:
Three of these cases were consolidated for argument and the other two were argued separately on other
dates. Inasmuch as all of them present the same fundamental question which, in our view, is decisive, they
will be disposed of jointly. For the same reason we will pass up the objection to the personality or
sufficiency of interest of the petitioners in case G. R. No. L-3054 and case G. R. No. L-3056 and the
question whether prohibition lies in cases Nos. L-2044 and L-2756. No practical benefit can be gained
from a discussion of the procedural matters since the decision in the cases wherein the petitioners' cause of
action or the propriety of the procedure followed is not in dispute, will be controlling authority on the
others. Above all, the transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure. (Avelino vs. Cuenco, G.
R. No. L-2821.) The petitions challenge the validity of executive orders of the President avowedly issued
in virtue of Commonwealth Act No. 671. Involved in cases Nos. L-2044 and L-2756 is Executive Order
No. 62, which regulates rentals for houses and lots for residential buildings. The petitioner, J. Antonio
Araneta, is under prosecution in the Court of First Instance of Manila for violation of the provisions of this
Executive Order, and prays for the issuance of the writ of prohibition to the judge and the city fiscal.
Involved in case L-3055 is Executive Order No. 192, which aims to control exports from the Philippines.
In this case, Leon Ma. Guerrero seeks a writ of mandamus to compel the Administrator of the Sugar Quota
Office and the Commissioner of Customs to permit the exportation of shoes by the petitioner. Both official
refuse to issue the required export license on the ground that the exportation of shoes from the Philippines
is forbidden by this Executive Order. Case No. L-3054 relates to Executive Order No. 225, which
appropriates funds for the operation of the Government of the Republic of the Philippines during the
period from July 1, 1949 to June 30, 1950, and for other purposes. The petitioner Eulogio Rodriguez, Sr.,
as a tax-payer, an elector, and president of the Nacionalista Party, applies for a writ of prohibition to
restrain the Treasurer of the Philippines from disbursing this Executive Order. Affected in case No. L-
3056 is Executive Order No. 226, which appropriates P6,000,000 to defray the expenses in connection
with, and incidental to, the hold lug of the national elections to be held in November, 1949. The petitioner,
Antonio Barredo, as a citizen, tax-payer and voter, asks this Court to prevent "the respondents from
disbursing, spending or otherwise disposing of that amount or any part of it."
Notwithstanding allegations in the petitions assailing the constitutionally of Act No. 671, the petitioners
do not press the point in their oral argument and memorandum. They rest their case chiefly on the
proposition that the Emergency Powers Act (Commonwealth Act No. 671) has ceased to have any force
and effect. This is the basic question we have referred to, and it is to this question that we will presently
address ourselves and devote greater attention. For the purpose of this decision, only, the constitutionality
of Act No. 671 will be taken for granted, and any dictum or statement herein which may appear contrary
to that hypothesis should be understood as having been made merely in furtherance of the main thesis.
Act No. 671 in full is as follows:

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR INVOLVING
THE PHILIPPINES AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULES AND
REGULATIONS TO MEET SUCH EMERGENCY.
Be it enacted by the National Assembly of the Philippines:
SECTION 1. The existence of war between the United States and other countries of Europe and Asia,
which involves the Philippines, makes it necessary to invest the President with extraordinary powers in
order to meet the resulting emergency.
"SEC. 2. Pursuant to the provisions of Article VI, section 26, of the Constitution, the President is hereby
authorized, during the existence of the emergency, to promulgate such rules and regulations as he may
deem necessary to carry out the national policy declared in section 1 hereof. Accordingly, he is, among
other things, empowered (a) to transfer the seat of the Government or any of its subdivisions, branches,
departments, offices, agencies or instrumentalities; (b) to reorganize the Government of the
Commonwealth including the determination of the order of precedence of the heads of the Executive
Department; (c) to create new subdivisions, branches, departments, agencies or instrumentalities of
government and to abolish any of those already existing; (d) to continue in force laws and appropriations
which would lapse or otherwise become inoperative, and to modify or suspend the operation or application
of those of an administrative character; (e) to impose new taxes or to increase, reduce, suspend or abolish
those in existence; (f) to raise funds through the issuance of bonds or otherwise, and to authorize the
expenditure of the proceeds thereof; (g) to authorize the national, provincial, city or municipal
governments to incur in overdrafts for purposes that he may approve; (h) to declare the suspension of the
collection of credits or the payment of debts; and (i) to exercise such other powers as he may deem to
enable the Government to fulfill its responsibities and to maintain and enforce the authority.
SEC. 3. The President of the Philippines shall as soon as practicable upon the convening of the Congress
of the Philippines report thereto all the rules and regulations promulgated by him under the powers herein
granted.
SEC. 4. This Act shall take effect upon its approval and the rules and regulations promulgated hereunder
shall be in force and effect until the Congress of the Philippines shall otherwise provide.
Section 26 of Article VI of the Constitution provides:
In time of war or other national emergency, the Congress may by law authorize the President, for a limited
period and subject to such restrictions as it may prescribe, to promulgate rules and regulations to carry out
a declared national policy.
Commonwealth Act No. 671 does not in term fix the duration of its effectiveness. The intention of the Act
has to be sought for in its nature, the object to be accomplish, the purpose to be subserved, and its relation
to the Constitution. The consequences of the various constructions offered will also be resorted to as
additional aid to interpretation. We test a rule by its results.
Article VI of the Constitution provides that any law passed by virtue thereof should be "for a limited
period." "Limited" has been defined to mean "restricted; bounded; prescribed; confined within positive
bounds; restrictive in duration, extent or scope." (Encyclopedia Law Dictionary, 3rd ed., 669; Black's Law
Dictionary, 3rd ed., 1120.) The words "limited period" as used in the Constitution are beyond question
intended to mean restrictive in duration. Emergency, in order to justify the delegation of emergency
powers, "must be temporary or it can not be said to be an emergency." (First Trust Joint Stock Land Bank
of Chicago vs. Adolph P. Arp, et al., 120 A. L. R., 937, 938.).
16
It is to be presumed that Commonwealth Act No. 671 was approved with this limitation in view. The
opposite theory would make the law repugnant to the Constitution, and is contrary to the principle that the
legislature is deemed to have full knowledge of the constitutional scope of its powers. The assertion that
new legislation is needed to repeal the act would not be in harmony with the Constitution either. If a new
and different law were necessary to terminate the delegation, the period for the delegation, it has been
correctly pointed out, would be unlimited, indefinite, negative and uncertain; "that which was intended to
meet a temporary emergency may become permanent law," (Peck vs. Fink, 2 Fed. [2d], 912); for Congress
might not enact the repeal, and even if it would, the repeal might not meet the approval of the President,
and the Congress might not be able to override the veto. Furthermore, this would create the anomaly that,
while Congress might delegate its powers by simple majority, it might not be able to recall them except by
a two-third vote. In other words, it would be easier for Congress to delegate its powers than to take them
back. This is not right and is not, and ought not to be, the law. Corwin, President: Office and Powers, 1948
ed., p. 160, says:
It is generally agreed that the maxim that the legislature may not delegate its powers signifies at the very
least that the legislature may not abdicate its powers: Yet how, in view of the scope that legislative
delegations take nowadays, is the line between delegation and abdication to be maintained? Only, I urge,
by rendering the delegated powers recoverable without the consent of the delegate; . . . .
Section 4 goes far to settle the legislative intention of this phase of Act No. 671. Section 4 stipulates that
"the rules and regulations promulgated thereunder shall be in full force and effect until the Congress of the
Philippines shall otherwise provide." The silence of the law regarding the repeal of the authority itself, in
the face of the express provision for the repeal of the rules and regulations issued in pursuance of it, a
clear manifestation of the belief held by the National Assembly that there was no necessity to provide for
the former. It would be strange if having no idea about the time the Emergency Powers Act was to be
effective the National Assemble failed to make a provision for this termination in the same way that it did
for the termination of the effects and incidents of the delegation. There would be no point in repealing or
annulling the rules and regulations promulgated under a law if the law itself was to remain in force, since,
in that case, the President could not only make new rules and regulations but he could restore the ones
already annulled by the legislature.
More anomalous than the exercise of legislative function by the Executive when Congress is in the
unobstructed exercise of its authority is the fact that there would be two legislative bodies operating over
the same field, legislating concurrently and simultaneously, mutually nullifying each other's actions. Even
if the emergency powers of the President, as suggested, be suspended while Congress was in session and
be revived after each adjournment, the anomaly would not be limited. Congress by a two-third vote could
repeal executive orders promulgated by the President during congressional recess, and the President in
turn could treat in the same manner, between sessions of Congress, laws enacted by the latter. This is not a
fantastic apprehension; in two instances it materialized. In entire good faith, and inspired only by the best
interests of the country as they saw them, a former President promulgated an executive order regulating
house rentals after he had vetoed a bill on the subject enacted by Congress, and the present Chief
Executive issued an executive order on export control after Congress had refused to approve the measure.
Quiet apart from these anomalies, there is good basis in the language of Act No. 671 for the inference that
the National Assembly restricted the life of the emergency powers of the President to the time the
Legislature was prevented from holding sessions due to enemy action or other causes brought on by the
war. Section 3 provides:
The President of the Philippines shall as soon as practicable upon the convening of the Congress of the
Philippines report thereto all the rules and regulations promulgated by him under the powers herein
granted.

The clear tenor of this provision is that there was to be only one meeting of Congress at which the
President was to give an account of his trusteeship. The section did not say each meeting, which it could
very well have said if that had been the intention. If the National Assembly did not think that the report in
section 3 was to be the first and last Congress Act No. 671 would lapsed, what reason could there be for
its failure to provide in appropriate and clear terms for the filing of subsequent reports? Such reports, if the
President was expected to continue making laws in the forms of rules, regulations and executive orders,
were as important, of as unimportant, as the initial one.
As a contemporary construction, President Quezon's statement regarding the duration of Act No. 671 is
enlightening and should carry much weight, considering his part in the passage and in the carrying out of
the law. Mr. Quezon, who called the National Assembly to a special session, who recommended the
enactment of the Emergency Powers Act, if indeed he was not its author, and who was the very President
to be entrusted with its execution, stated in his autobiography, "The Good Fight," that Act No. 671 was
only "for a certain period" and "would become invalid unless reenacted." These phrases connote
automatical extinction of the law upon the conclusion of a certain period. Together they denote that a new
legislation was necessary to keep alive (not to repeal) the law after the expiration of that period. They
signify that the same law, not a different one, had to be repassed if the grant should be prolonged.
What then was the contemplated period? President Quezon in the same paragraph of his autobiography
furnished part of the answer. He said he issued the call for a special session of the National Assembly
"when it became evident that we were completely helpless against air attack, and that it was most unlikely
the Philippine Legislature would hold its next regular session which was to open on January 1, 1942."
(Emphasis ours.) It can easily be discerned in this statement that the conferring of enormous powers upon
the President was decided upon with specific view to the inability of the National Assembly to meet.
Indeed no other factor than this inability could have motivated the delegation of powers so vast as to
amount to an abdication by the National Assembly of its authority. The enactment and continuation of a
law so destructive of the foundations of democratic institutions could not have been conceived under any
circumstance short of a complete disruption and dislocation of the normal processes of government.
Anyway, if we are to uphold the constitutionality of the act on the basis of its duration, we must start with
the premise that it fixed a definite, limited period. As we have indicated, the period that best comports
with constitutional requirements and limitations, with the general context of the law and with what we
believe to be the main if not the sole raison d'etre for its enactment, was a period coextensive with the
inability of Congress to function, a period ending with the conventing of that body.
It is our considered opinion, and we so hold, that Commonwealth Act No. 671 became inoperative when
Congress met in regular session on May 25, 1946, and that Executive Orders Nos. 62, 192, 225 and 226
were issued without authority of law. In setting the session of Congress instead of the first special session
preceded it as the point of expiration of the Act, we think giving effect to the purpose and intention of the
National Assembly. In a special session, the Congress may "consider general legislation or only such as he
(President) may designate." (Section 9, Article VI of the Constitution.) In a regular session, the power
Congress to legislate is not circumscribed except by the limitations imposed by the organic law.
Having arrived at this conclusion, we are relieved of the necessity of deciding the question as to which
department of government is authorized to inquire whether the contingency on which the law is predicated
still exists. The right of one or another department to declare the emergency terminated is not in issue. As
a matter of fact, we have endeavored to find the will of the National Assembly—call that will, an exercise
of the police power or the war power — and, once ascertained, to apply it. Of course, the function of
interpreting statutes in proper cases, as in this, will not be denied the courts as their constitutional
prerogative and duty. In so far as it is insinuated that the Chief Executive has the exclusive authority to say
that war not ended, and may act on the strength of his opinion and findings in contravention of the law as
the courts have construed it, no legal principle can be found to support the proposition. There is no
pretense that the President has independent or inherent power to issue such executive orders as those under
review. we take it that the respondents, in sustaining the validity of these executive orders rely on Act No.
17
600, Act No. 620, or Act No. 671 of the former Commonwealth and on no other source. To put it
differently, the President's authority in this connection is purely statutory, in no sense political or directly
derived from the Constitution.
Act No. 671, as we have stressed, ended ex proprio vigore with the opening of the regular session of
Congress on May 25, 1946. Acts Nos. 600 and 620 contain stronger if not conclusive indication that they
were self-liquidating. By express provision the rules and regulations to be eventually made in pursuance of
Acts Nos. 600 and 620, respectively approved on August 19, 1940 and June 6, 1941, were to be good only
up to the corresponding dates of adjournment of the following sessions of the Legislature, "unless sooner
amended or repealed by the National Assembly." The logical deduction to be drawn from this provision is
that in the mind of the lawmakers the idea was fixed that the Acts themselves would lapse not latter than
the rules and regulations. The design to provide for the automatic repeal of those rules and regulations
necessarily was predicated on the consciousness of a prior or at best simultaneous repeal of their source.
Were not this the case, there would arise the curious spectacle, already painted, and easily foreseen, of the
Legislature amending or repealing rules and regulations of the President while the latter was empowered
to keep or return them into force and to issue new ones independently of the National Assembly. For the
rest, the reasoning heretofore adduced against the asserted indefinite continuance of the operation of Act
No. 671 equally applies to Acts Nos. 600 and 620.
The other corollary of the opinion we have reached is that the question whether war, in law or in fact,
continues, is irrelevant. If we were to that actual hostilities between the original belligerents are still
raging, the elusion would not be altered. After the convening of Congress new legislation had to be
approved if the continuation of the emergency powers, or some of them, was desired. In the light of the
conditions surrounding the approval of the Emergency Power Act, we are of the opinion that the "state of
total emergency as a result of war" envisaged in the preamble referred to the impending invasion and
occupation of the Philippines by the enemy and the consequent total disorganization of the Government,
principally the impossibility for the National Assembly to act. The state of affairs was one which called
for immediate action and with which the National Assembly would would not be able to cope. The war
itself and its attendant chaos and calamities could not have necessitated the delegation had the National
Assembly been in a position to operate.
After all the criticism that have been made against the efficiency of the system of the separation of
powers, the fact remains that the Constitution has set up this form of government, with all its defects and
shortcomings, in preference to the commingling of powers in one man or group of men. The Filipino
people by adopting parliamentary government have given notice that they share the faith of other
democracy-loving people in this system, with all its faults, as the ideal. The point is, under this framework
of government, legislation is preserved for Congress all the time, not expecting periods of crisis no matter
how serious. Never in the history of the United States, the basic features of whose Constitution have been
copied in ours, have the specific functions of the legislative branch of enacting laws been surrendered to
another department — unless we regard as legislating the carrying out of a legislative policy according to
prescribed standards; no, not even when that Republic was fighting a total war, or when it was engaged in
a life-and-death struggle to preserve the Union. The truth is that under our concept of constitutional
government, in times of extreme perils more than in normal circumstances "the various branches,
executive, legislative, and judicial," given the ability to act, are called upon "to the duties and discharge
the responsibilities committed to them respectively."
These observations, though beyond the issue as formulated in this decision, may, we trust, also serve to
answer the vehement plea that for the good of the Nation, the President should retain his extraordinary
powers as long asturmoil and other ills directly or indirectly traceable to the late war harass the
Philippines.
Upon the foregoing considerations, the petitions will be granted. In order to avoid any possible disruption
and interruption in the normal operation of the Government, we have deemed it best to depart in these

cases from the ordinary rule to the period for the effectivity of decisions, and to decree, as it is hereby
decreed, that this decision take effect fifteen days from the date of the entry of final judgment provided in
section 8 of Rule 53 of the Rules of Court in relation to section 2 of Rule 35. No costs will be charged.
CONCLUSION
In view of all the foregoing, we have to conclude and declare that the executive orders promulgated by the
President under Commonwealth Act 671 before the date of the adjournment of the regular session of the
Congress on the Philippines in 1946 are valid, because said Commonwealth Act was then still in force; but
the executive orders promulgated after the said date are null and void, because Commonwealth Act No.
671 had already ceased to be in force in so far as the delegation of powers was concerned. Therefore, are
null and void the Executive Order No. 192 promulgated on December 24, 1948, on the control of exports
from the Philippines; the Executive Order No. 225 dated June 15, 1949, appropriating funds for the
operation of the Government of the Republic of the Philippines during the period from July 1, 1949 to
June 30, 1950; and the Executive Order No. 226 promulgated on June 15, 1949, appropriating the sum of
six million pesos to defray the expenses in connection with, and incidental to, the holding of the national
election to be held on the second Tuesday of November, 1949.
DAVID vs MACAPAGAL ARROYO
All powers need some restraint; practical adjustments rather than rigid formula are necessary.1 Superior
strength – the use of force – cannot make wrongs into rights. In this regard, the courts should be vigilant in
safeguarding the constitutional rights of the citizens, specifically their liberty.
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: "In cases
involving liberty, the scales of justice should weigh heavily against government and in favor of the poor,
the oppressed, the marginalized, the dispossessed and the weak." Laws and actions that restrict
fundamental rights come to the courts "with a heavy presumption against their constitutional validity."2
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential
Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-
Arroyo committed grave abuse of discretion. Petitioners contend that respondent officials of the
Government, in their professed efforts to defend and preserve democratic institutions, are actually
trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances are
void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem. How does the
Constitution of a free people combine the degree of liberty, without which, law becomes tyranny, with the
degree of law, without which, liberty becomes license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President
Arroyo issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and
Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by
Section 18, Article 7 of the Philippine Constitution which states that: "The President. . . whenever it
becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .," and in my
capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as
well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17,
Article 12 of the Constitution do hereby declare a State of National Emergency.
18
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right, represented
by military adventurists – the historical enemies of the democratic Philippine State – who are now in a
tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down
the duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the
national media;
WHEREAS, this series of actions is hurting the Philippine State – by obstructing governance including
hindering the growth of the economy and sabotaging the people’s confidence in government and their
faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the
opening to intensify their avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the
Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right, represented
by military adventurists - the historical enemies of the democratic Philippine State – and who are now in a
tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down
the duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican government;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the
national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including
hindering the growth of the economy and sabotaging the people’s confidence in the government and their
faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the
opening to intensify their avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic
institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the
Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National
Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under
the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic
of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon
the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and
suppress acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of
the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all
these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which
reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on the
basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine National
Police (PNP), were directed to maintain law and order throughout the Philippines, prevent and suppress all
form of lawless violence as well as any act of rebellion and to undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless
violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national
emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate
cause behind the executive issuances was the conspiracy among some military officers, leftist insurgents
of the New People’s Army (NPA), and some members of the political opposition in a plot to unseat or
assassinate President Arroyo.4 They considered the aim to oust or assassinate the President and take-over
the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the
issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners’ counsels.
The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the
President in determining the necessity of calling out the armed forces. He emphasized that none of the
petitioners has shown that PP 1017 was without factual bases. While he explained that it is not
respondents’ task to state the facts behind the questioned Proclamation, however, they are presenting the
same, narrated hereunder, for the elucidation of the issues.
19
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San
Juan and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped
their detention cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and
to elude arrest at all costs. They called upon the people to "show and proclaim our displeasure at the sham
regime. Let us demonstrate our disgust, not only by going to the streets in protest, but also by wearing red
bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which detailed
plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio
City. The plot was to assassinate selected targets including some cabinet members and President Arroyo
herself.6 Upon the advice of her security, President Arroyo decided not to attend the Alumni
Homecoming. The next day, at the height of the celebration, a bomb was found and detonated at the PMA
parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province.
Found in his possession were two (2) flash disks containing minutes of the meetings between members of
the Magdalo Group and the National People’s Army (NPA), a tape recorder, audio cassette cartridges,
diskettes, and copies of subversive documents.7 Prior to his arrest, Lt. San Juan announced through DZRH
that the "Magdalo’s D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP-
Special Action Force were planning to defect. Thus, he immediately ordered SAF Commanding General
Marcelino Franco, Jr. to "disavow" any defection. The latter promptly obeyed and issued a public
statement: "All SAF units are under the effective control of responsible and trustworthy officers with
proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquino’s
brother, businessmen and mid-level government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic,
called a U.S. government official about his group’s plans if President Arroyo is ousted. Saycon also
phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the
Army’s elite Scout Ranger. Lim said "it was all systems go for the planned movement against Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief
of Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would join the
rallies to provide a critical mass and armed component to the Anti-Arroyo protests to be held on February
24, 2005. According to these two (2) officers, there was no way they could possibly stop the soldiers
because they too, were breaking the chain of command to join the forces foist to unseat the President.
However, Gen. Senga has remained faithful to his Commander-in-Chief and to the chain of command. He
immediately took custody of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines
Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and
the police establishments in order to forge alliances with its members and key officials. NPA spokesman
Gregorio "Ka Roger" Rosal declared: "The Communist Party and revolutionary movement and the entire
people look forward to the possibility in the coming year of accomplishing its immediate task of bringing
down the Arroyo regime; of rendering it to weaken and unable to rule that it will not take much longer to
end it."9
On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central
Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are growing rapidly,
hastened by the economic difficulties suffered by the families of AFP officers and enlisted personnel who
undertake counter-insurgency operations in the field." He claimed that with the forces of the national

democratic movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that have
been reinforcing since June 2005, it is probable that the President’s ouster is nearing its concluding stage
in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and
Bataan was also considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is
the raid of an army outpost in Benguet resulting in the death of three (3) soldiers. And also the directive of
the Communist Party of the Philippines ordering its front organizations to join 5,000 Metro Manila
radicals and 25,000 more from the provinces in mass protests.10
By midnight of February 23, 2006, the President convened her security advisers and several cabinet
members to assess the gravity of the fermenting peace and order situation. She directed both the AFP and
the PNP to account for all their men and ensure that the chain of command remains solid and undivided.
To protect the young students from any possible trouble that might break loose on the streets, the President
suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs and activities related
to the 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold rallies issued
earlier by the local governments. Justice Secretary Raul Gonzales stated that political rallies, which to the
President’s mind were organized for purposes of destabilization, are cancelled.Presidential Chief of Staff
Michael Defensor announced that "warrantless arrests and take-over of facilities, including media, can
already be implemented."11
Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of
protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang
Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of
converging at the EDSA shrine. Those who were already near the EDSA site were violently dispersed by
huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields, water
cannons, and tear gas to stop and break up the marching groups, and scatter the massed participants. The
same police action was used against the protesters marching forward to Cubao, Quezon City and to the
corner of Santolan Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA
celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of
their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S.
David, a professor at the University of the Philippines and newspaper columnist. Also arrested was his
companion, Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and
Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune
offices in Manila. The raiding team confiscated news stories by reporters, documents, pictures, and mock-
ups of the Saturday issue. Policemen from Camp Crame in Quezon City were stationed inside the editorial
and business offices of the newspaper; while policemen from the Manila Police District were stationed
outside the building.13
A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises
of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante.
20
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a ‘strong presence,’
to tell media outlets not to connive or do anything that would help the rebels in bringing down this
government." The PNP warned that it would take over any media organization that would not follow
"standards set by the government during the state of national emergency." Director General Lomibao
stated that "if they do not follow the standards – and the standards are - if they would contribute to
instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No.
1017 – we will recommend a ‘takeover.’" National Telecommunications’ Commissioner Ronald Solis
urged television and radio networks to "cooperate" with the government for the duration of the state of
national emergency. He asked for "balanced reporting" from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out for media coverage when the
national security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis
Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police
showed a warrant for his arrest dated 1985. Beltran’s lawyer explained that the warrant, which stemmed
from a case of inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran,
however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be
admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest
were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public
forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into
custody.
Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was arrested while
with his wife and golfmates at the Orchard Golf and Country Club in Dasmariñas, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano,
Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza. Bayan Muna
Representative Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he was turned
over to the custody of the House of Representatives where the "Batasan 5" decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur
Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has
ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were
filed with this Court against the above-named respondents. Three (3) of these petitions impleaded
President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it
encroaches on the emergency powers of Congress; (2) itis a subterfuge to avoid the constitutional
requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of freedom
of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the
CIDG’s act of raiding the Daily Tribune offices as a clear case of "censorship" or "prior restraint." They

also claimed that the term "emergency" refers only to tsunami, typhoon, hurricane and similar
occurrences, hence, there is "absolutely no emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one
(21) other members of the House of Representatives, including Representatives Satur Ocampo, Rafael
Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5
constitute "usurpation of legislative powers"; "violation of freedom of expression" and "a declaration of
martial law." They alleged that President Arroyo "gravely abused her discretion in calling out the armed
forces without clear and verifiable factual basis of the possibility of lawless violence and a showing that
there is necessity to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O.
No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to enact laws and
decrees; (2) their issuance was without factual basis; and (3) they violate freedom of expression and the
right of the people to peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5
are unconstitutional because they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of
Article III, (c) Section 2319 of Article VI, and (d) Section 1720 of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an "arbitrary and
unlawful exercise by the President of her Martial Law powers." And assuming that PP 1017 is not really a
declaration of Martial Law, petitioners argued that "it amounts to an exercise by the President of
emergency powers without congressional approval." In addition, petitioners asserted that PP 1017 "goes
beyond the nature and function of a proclamation as defined under the Revised Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No. 5 are
"unconstitutional for being violative of the freedom of expression, including its cognate rights such as
freedom of the press and the right to access to information on matters of public concern, all guaranteed
under Article III, Section 4 of the 1987 Constitution." In this regard, she stated that these issuances
prevented her from fully prosecuting her election protest pending before the Presidential Electoral
Tribunal.
In respondents’ Consolidated Comment, the Solicitor General countered that: first, the petitions should be
dismissed for being moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483
(KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not
necessary for petitioners to implead President Arroyo as respondent; fourth, PP 1017 has constitutional
and legal basis; and fifth, PP 1017 does not violate the people’s right to free expression and redress of
grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the above interlocking
issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et al.),
171489 (Cadiz et al.), and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
21
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the concept of judicial review
enunciated in Marbury v. Madison.21 This concept rests on the extraordinary simple foundation --
The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political
authority. It confers limited powers on the national government. x x x If the government consciously or
unconsciously oversteps these limitations there must be some authority competent to hold it in control, to
thwart its unconstitutional attempt, and thus to vindicate and preserve inviolate the will of the people as
expressed in the Constitution. This power the courts exercise. This is the beginning and the end of the
theory of judicial review.22
But the power of judicial review does not repose upon the courts a "self-starting capacity."23 Courts may
exercise such power only when the following requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of constitutionality; third, the constitutional
question must be raised at the earliest opportunity; and fourth, the decision of the constitutional question
must be necessary to the determination of the case itself.24
Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion
thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of
judicial resolution. It is "definite and concrete, touching the legal relations of parties having adverse legal
interest;" a real and substantial controversy admitting of specific relief.25 The Solicitor General refutes the
existence of such actual case or controversy, contending that the present petitions were rendered "moot
and academic" by President Arroyo’s issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening
events,26 so that a declaration thereon would be of no practical use or value.27 Generally, courts decline
jurisdiction over such case28 or dismiss it on ground of mootness.29
The Court holds that President Arroyo’s issuance of PP 1021 did not render the present petitions moot and
academic. During the eight (8) days that PP 1017 was operative, the police officers, according to
petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid?
Do they justify these alleged illegal acts? These are the vital issues that must be resolved in the present
petitions. It must be stressed that "an unconstitutional act is not a law, it confers no rights, it imposes no
duties, it affords no protection; it is in legal contemplation, inoperative."30
The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in
resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation
of the Constitution;31 second, the exceptional character of the situation and the paramount public interest
is involved;32 third, when constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public;33 and fourth, the case is capable of repetition yet evading
review.34

All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction over the
instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution.
There is no question that the issues being raised affect the public’s interest, involving as they do the
people’s basic rights to freedom of expression, of assembly and of the press. Moreover, the Court has the
duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present petitions, the military and the police, on the
extent of the protection given by constitutional guarantees.35 And lastly, respondents’ contested actions
are capable of repetition. Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V.
Panganiban’s Separate Opinion in Sanlakas v. Executive Secretary.36 However, they failed to take into
account the Chief Justice’s very statement that an otherwise "moot" case may still be decided "provided
the party raising it in a proper case has been and/or continues to be prejudiced or damaged as a direct
result of its issuance." The present case falls right within this exception to the mootness rule pointed out
by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a
more than passing discussion on legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a given question."37 In private
suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, as amended. It provides that "every action must be prosecuted or defended
in the name of the real party in interest." Accordingly, the "real-party-in interest" is "the party who stands
to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit."38
Succinctly put, the plaintiff’s standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public
right" in assailing an allegedly illegal official action, does so as a representative of the general public. He
may be a person who is affected no differently from any other person. He could be suing as a "stranger,"
or in the category of a "citizen," or ‘taxpayer." In either case, he has to adequately show that he is entitled
to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the
public order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The
distinction was first laid down in Beauchamp v. Silk,39 where it was held that the plaintiff in a taxpayer’s
suit is in a different category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected by
the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As
held by the New York Supreme Court in People ex rel Case v. Collins:40 "In matter of mere public right,
however…the people are the real parties…It is at least the right, if not the duty, of every citizen to
interfere and see that a public offence be properly pursued and punished, and that a public grievance be
remedied." With respect to taxpayer’s suits, Terr v. Jordan41 held that "the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be
denied."
However, to prevent just about any person from seeking judicial interference in any official policy or act
with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public
service, the United State Supreme Court laid down the more stringent "direct injury" test in Ex Parte
Levitt,42 later reaffirmed in Tileston v. Ullman.43 The same Court ruled that for a private individual to
invoke the judicial power to determine the validity of an executive or legislative action, he must show that
he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general
interest common to all members of the public.
22
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that the person
who impugns the validity of a statute must have "a personal and substantial interest in the case such that
he has sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a litany of
cases, such as, Custodio v. President of the Senate,45 Manila Race Horse Trainers’ Association v. De la
Fuente,46 Pascual v. Secretary of Public Works47 and Anti-Chinese League of the Philippines v. Felix.48
However, being a mere procedural technicality, the requirement of locus standi may be waived by the
Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v.
Dinglasan,49 where the "transcendental importance" of the cases prompted the Court to act liberally. Such
liberality was neither a rarity nor accidental. In Aquino v. Comelec,50 this Court resolved to pass upon the
issues raised due to the "far-reaching implications" of the petition notwithstanding its categorical
statement that petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where
this liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic
organizations to prosecute actions involving the constitutionality or validity of laws, regulations and
rulings.51
Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they
have been allowed to sue under the principle of "transcendental importance." Pertinent are the following
cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of the constitutional
right to information and the equitable diffusion of natural resources are matters of transcendental
importance which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given the transcendental
importance of the issues involved, the Court may relax the standing requirements and allow the suit to
prosper despite the lack of direct injury to the parties seeking judicial review" of the Visiting Forces
Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file suit in their
capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of Congress’ taxing or
spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,55that in cases of
transcendental importance, the cases must be settled promptly and definitely and standing requirements
may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers,
voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following
requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance
which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of infringes upon their
prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a people’s organization
does not give it the requisite personality to question the validity of the on-line lottery contract, more so
where it does not raise any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any
allegation that public funds are being misused. Nor can it sue as a concerned citizen as it does not allege
any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court
reiterated the "direct injury" test with respect to concerned citizens’ cases involving constitutional issues.
It held that "there must be a showing that the citizen personally suffered some actual or threatened injury
arising from the alleged illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP),
is not a real party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or
supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members of
Congress have standing to sue, as they claim that the President’s declaration of a state of rebellion is a
usurpation of the emergency powers of Congress, thus impairing their legislative powers. As to petitioners
Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared them to be devoid of
standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The
same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc.
They alleged "direct injury" resulting from "illegal arrest" and "unlawful search" committed by police
operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers. They
also raised the issue of whether or not the concurrence of Congress is necessary whenever the alarming
powers incident to Martial Law are used. Moreover, it is in the interest of justice that those affected by PP
1017 can be represented by their Congressmen in bringing to the attention of the Court the alleged
violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,60 Kapatiran
Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small Landowners in the
Philippines, Inc. v. Secretary of Agrarian Reform,62 Basco v. Philippine Amusement and Gaming
Corporation,63 and Tañada v. Tuvera,64 that when the issue concerns a public right, it is sufficient that
the petitioner is a citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly
may be deemed sufficient to give it legal standing. Organizations may be granted standing to assert the
rights of their members.65 We take judicial notice of the announcement by the Office of the President
banning all rallies and canceling all permits for public assemblies following the issuance of PP 1017 and
G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the
Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury which the
IBP as an institution or its members may suffer as a consequence of the issuance of PP No. 1017 and G.O.
No. 5. In Integrated Bar of the Philippines v. Zamora,66 the Court held that the mere invocation by the
IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to
23
clothe it with standing in this case. This is too general an interest which is shared by other groups and the
whole citizenry. However, in view of the transcendental importance of the issue, this Court declares that
petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are
no allegations of illegal disbursement of public funds. The fact that she is a former Senator is of no
consequence. She can no longer sue as a legislator on the allegation that her prerogatives as a lawmaker
have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media personality will not likewise
aid her because there was no showing that the enforcement of these issuances prevented her from pursuing
her occupation. Her submission that she has pending electoral protest before the Presidential Electoral
Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017 will affect the
proceedings or result of her case. But considering once more the transcendental importance of the issue
involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to the bigger question of
proper exercise of judicial power. This is the underlying legal tenet of the "liberality doctrine" on legal
standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which
is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine
society now waits with bated breath the ruling of this Court on this very critical matter. The petitions thus
call for the application of the "transcendental importance" doctrine, a relaxation of the standing
requirements for the petitioners in the "PP 1017 cases."1avvphil.net
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the
President, during his tenure of office or actual incumbency,67 may not be sued in any civil or criminal
case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high
office of the President, the Head of State, if he can be dragged into court litigations while serving as such.
Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to
enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and
judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the
discharge of the many great and important duties imposed upon him by the Constitution necessarily
impairs the operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the people68 but he may be
removed from office only in the mode provided by law and that is by impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for President Arroyo
to issue such Proclamation.
The issue of whether the Court may review the factual bases of the President’s exercise of his
Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon v.
Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v. Garcia,72 Aquino, Jr. v.
Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-war always cuts across the line defining "political
questions," particularly those questions "in regard to which full discretionary authority has been delegated
to the legislative or executive branch of the government."75 Barcelon and Montenegro were in unison in
declaring that the authority to decide whether an exigency has arisen belongs to the President and his
decision is final and conclusive on the courts. Lansang took the opposite view. There, the members of the
Court were unanimous in the conviction that the Court has the authority to inquire into the existence of
factual bases in order to determine their constitutional sufficiency. From the principle of separation of

powers, it shifted the focus to the system of checks and balances, "under which the President is supreme, x
x x only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial Department, which in this respect, is, in
turn, constitutionally supreme."76 In 1973, the unanimous Court of Lansang was divided in Aquino v.
Enrile.77 There, the Court was almost evenly divided on the issue of whether the validity of the
imposition of Martial Law is a political or justiciable question.78 Then came Garcia-Padilla v. Enrile
which greatly diluted Lansang. It declared that there is a need to re-examine the latter case, ratiocinating
that "in times of war or national emergency, the President must be given absolute control for the very life
of the nation and the government is in great peril. The President, it intoned, is answerable only to his
conscience, the People, and God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent to these cases at bar --
echoed a principle similar to Lansang. While the Court considered the President’s "calling-out" power as a
discretionary power solely vested in his wisdom, it stressed that "this does not prevent an examination of
whether such power was exercised within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion."This ruling is mainly a result of the Court’s reliance on
Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an
appropriate action the validity of the acts of the political departments. Under the new definition of judicial
power, the courts are authorized not only "to settle actual controversies involving rights which are legally
demandable and enforceable," but also "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government." The latter part of the authority represents a broadening of judicial power to enable the courts
of justice to review what was before a forbidden territory, to wit, the discretion of the political
departments of the government.81 It speaks of judicial prerogative not only in terms of power but also of
duty.82
As to how the Court may inquire into the President’s exercise of power, Lansang adopted the test that
"judicial inquiry can go no further than to satisfy the Court not that the President’s decision is correct," but
that "the President did not act arbitrarily." Thus, the standard laid down is not correctness, but
arbitrariness.83 In Integrated Bar of the Philippines, this Court further ruled that "it is incumbent upon the
petitioner to show that the President’s decision is totally bereft of factual basis" and that if he fails, by way
of proof, to support his assertion, then "this Court cannot undertake an independent investigation beyond
the pleadings."
Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing PP 1017, is
totally bereft of factual basis. A reading of the Solicitor General’s Consolidated Comment and
Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with supporting
reports forming part of the records. Mentioned are the escape of the Magdalo Group, their audacious threat
of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the
reproving statements from the communist leaders. There was also the Minutes of the Intelligence Report
and Security Group of the Philippine Army showing the growing alliance between the NPA and the
military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the
Court is convinced that the President was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her
arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion.
However, the exercise of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
24
This case brings to fore a contentious subject -- the power of the President in times of emergency. A
glimpse at the various political theories relating to this subject provides an adequate backdrop for our
ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English doctrine of
prerogative to cope with the problem of emergency. In times of danger to the nation, positive law enacted
by the legislature might be inadequate or even a fatal obstacle to the promptness of action necessary to
avert catastrophe. In these situations, the Crown retained a prerogative "power to act according to
discretion for the public good, without the proscription of the law and sometimes even against it."84 But
Locke recognized that this moral restraint might not suffice to avoid abuse of prerogative powers. Who
shall judge the need for resorting to the prerogative and how may its abuse be avoided? Here, Locke
readily admitted defeat, suggesting that "the people have no other remedy in this, as in all other cases
where they have no judge on earth, but to appeal to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of
government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in
certain cases, render them disastrous and make them bring about, at a time of crisis, the ruin of the State…
It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend
their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the
method is to nominate a supreme lawyer, who shall silence all the laws and suspend for a moment the
sovereign authority. In such a case, there is no doubt about the general will, and it clear that the people’s
first intention is that the State shall not perish.86
Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he termed it. For
him, it would more likely be cheapened by "indiscreet use." He was unwilling to rely upon an "appeal to
heaven." Instead, he relied upon a tenure of office of prescribed duration to avoid perpetuation of the
dictatorship.87
John Stuart Mill concluded his ardent defense of representative government: "I am far from condemning,
in cases of extreme necessity, the assumption of absolute power in the form of a temporary
dictatorship."88
Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized and
attempted to bridge this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra –constitutional measures;
for although they may for a time be beneficial, yet the precedent is pernicious, for if the practice is once
established for good objects, they will in a little while be disregarded under that pretext but for evil
purposes. Thus, no republic will ever be perfect if she has not by law provided for everything, having a
remedy for every emergency and fixed rules for applying it.89
Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into the constitution a
regularized system of standby emergency powers to be invoked with suitable checks and controls in time
of national danger. He attempted forthrightly to meet the problem of combining a capacious reserve of
power and speed and vigor in its application in time of emergency, with effective constitutional
restraints.90

Contemporary political theorists, addressing themselves to the problem of response to emergency by
constitutional democracies, have employed the doctrine of constitutional dictatorship.91 Frederick M.
Watkins saw "no reason why absolutism should not be used as a means for the defense of liberal
institutions," provided it "serves to protect established institutions from the danger of permanent injury in
a period of temporary emergency and is followed by a prompt return to the previous forms of political
life."92 He recognized the two (2) key elements of the problem of emergency governance, as well as all
constitutional governance: increasing administrative powers of the executive, while at the same time
"imposing limitation upon that power."93 Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a dictatorship: "The period of dictatorship must
be relatively short…Dictatorship should always be strictly legitimate in character…Final authority to
determine the need for dictatorship in any given case must never rest with the dictator himself…"94 and
the objective of such an emergency dictatorship should be "strict political conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of Watkins.95 "It is a problem of concentrating
power – in a government where power has consciously been divided – to cope with… situations of
unprecedented magnitude and gravity. There must be a broad grant of powers, subject to equally strong
limitations as to who shall exercise such powers, when, for how long, and to what end."96 Friedrich, too,
offered criteria for judging the adequacy of any of scheme of emergency powers, to wit: "The emergency
executive must be appointed by constitutional means – i.e., he must be legitimate; he should not enjoy
power to determine the existence of an emergency; emergency powers should be exercised under a strict
time limitation; and last, the objective of emergency action must be the defense of the constitutional
order."97
Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain,
France, Weimar, Germany and the United States, reverted to a description of a scheme of "constitutional
dictatorship" as solution to the vexing problems presented by emergency.98 Like Watkins and Friedrich,
he stated a priori the conditions of success of the "constitutional dictatorship," thus:
1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is
necessary or even indispensable to the preservation of the State and its constitutional order…
2) …the decision to institute a constitutional dictatorship should never be in the hands of the man or men
who will constitute the dictator…
3) No government should initiate a constitutional dictatorship without making specific provisions for its
termination…
4) …all uses of emergency powers and all readjustments in the organization of the government should be
effected in pursuit of constitutional or legal requirements…
5) … no dictatorial institution should be adopted, no right invaded, no regular procedure altered any more
than is absolutely necessary for the conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional dictatorship should never be permanent
in character or effect…
7) The dictatorship should be carried on by persons representative of every part of the citizenry interested
in the defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken under a constitutional dictatorship. .
. limits his power, using the language of McIlwain. In other words, in times of emergency, our Constitution
9) The decision to terminate a constitutional dictatorship, like the decision to institute one should never be
in the hands of the man or men who constitute the dictator. . .
25
10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was
instituted…
11) …the termination of the crisis must be followed by a complete return as possible to the political and
governmental conditions existing prior to the initiation of the constitutional dictatorship…99
Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did
Watkins. He would secure to Congress final responsibility for declaring the existence or termination of an
emergency, and he places great faith in the effectiveness of congressional investigating committees.100
Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in
saying that, "the suggestion that democracies surrender the control of government to an authoritarian ruler
in time of grave danger to the nation is not based upon sound constitutional theory." To appraise
emergency power in terms of constitutional dictatorship serves merely to distort the problem and hinder
realistic analysis. It matters not whether the term "dictator" is used in its normal sense (as applied to
authoritarian rulers) or is employed to embrace all chief executives administering emergency powers.
However used, "constitutional dictatorship" cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the "concept of constitutionalism" articulated by
Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers,
and which is consistent with the findings of this study, is that formulated by Charles H. McIlwain. While it
does not by any means necessarily exclude some indeterminate limitations upon the substantive powers of
government, full emphasis is placed upon procedural limitations, and political responsibility. McIlwain
clearly recognized the need to repose adequate power in government. And in discussing the meaning of
constitutionalism, he insisted that the historical and proper test of constitutionalism was the existence of
adequate processes for keeping government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of powers and substantive
limitations on governmental power. He found that the really effective checks on despotism have consisted
not in the weakening of government but, but rather in the limiting of it; between which there is a great and
very significant difference. In associating constitutionalism with "limited" as distinguished from "weak"
government, McIlwain meant government limited to the orderly procedure of law as opposed to the
processes of force. The two fundamental correlative elements of constitutionalism for which all lovers of
liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of
government to the governed.101
In the final analysis, the various approaches to emergency of the above political theorists –- from Lock’s
"theory of prerogative," to Watkins’ doctrine of "constitutional dictatorship" and, eventually, to
McIlwain’s "principle of constitutionalism" --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to the Chief Executive, while
insuring that such powers will be exercised with a sense of political responsibility and under effective
limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the
1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a government in
the concept of Justice Jackson’s "balanced power structure."102 Executive, legislative, and judicial
powers are dispersed to the President, the Congress, and the Supreme Court, respectively. Each is supreme
within its own sphere. But none has the monopoly of power in times of emergency. Each branch is given a
role to serve as limitation or check upon the other. This system does not weaken the President, it just
reasonably demands that we repose a certain amount of faith in the basic integrity and wisdom of the

Chief Executive but, at the same time, it obliges him to operate within carefully prescribed procedural
limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its
enforcement encroached on both unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their faces"
statutes in free speech cases, also known under the American Law as First Amendment cases.103
A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related
conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless violence. In United
States v. Salerno,104 the US Supreme Court held that "we have not recognized an ‘overbreadth’ doctrine
outside the limited context of the First Amendment" (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects legitimate
state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct."
Undoubtedly, lawless violence, insurrection and rebellion are considered "harmful" and "constitutionally
unprotected conduct." In Broadrick v. Oklahoma,105 it was held:
It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on its face
and when ‘such summary action’ is inappropriate. But the plain import of our cases is, at the very least,
that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function,
a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to
sanction moves from ‘pure speech’ toward conduct and that conduct –even if expressive – falls within the
scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive
controls over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to
regulate only "spoken words" and again, that "overbreadth claims, if entertained at all, have been curtailed
when invoked against ordinary criminal laws that are sought to be applied to protected conduct."106 Here,
the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is
manifestly subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used "sparingly
and only as a last resort," and is "generally disfavored;"107 The reason for this is obvious. Embedded in
the traditional rules governing constitutional adjudication is the principle that a person to whom a law may
be applied will not be heard to challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the Court.108 A writer and scholar in
Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual
rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as
applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law
by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not
permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis,
those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates
the entire statute "on its face," not merely "as applied for" so that the overbroad law becomes
unenforceable until a properly authorized court construes it more narrowly. The factor that motivates
26
courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of
the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an
overbroad law’s "very existence may cause others not before the court to refrain from constitutionally
protected speech or expression." An overbreadth ruling is designed to remove that deterrent effect on the
speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP
1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the
assumption or prediction that its very existence may cause others not before the Court to refrain from
constitutionally protected speech or expression. In Younger v. Harris,109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the
relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of
detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount
successfully, since the challenger must establish that there can be no instance when the assailed law may
be valid. Here, petitioners did not even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is
facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its
application."110 It is subject to the same principles governing overbreadth doctrine. For one, it is also an
analytical tool for testing "on their faces" statutes in free speech cases. And like overbreadth, it is said that
a litigant may challenge a statute on its face only if it is vague in all its possible applications. Again,
petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed to
establish that men of common intelligence cannot understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII … do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well any act of insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency."

First Provision: Calling-out Power
The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive Secretary,111
this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the Constitution
reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority
of all its Members in regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may,
in the same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension,
convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege
of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most to the
least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas
corpus, and the power to declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,112 the
Court ruled that the only criterion for the exercise of the calling-out power is that "whenever it becomes
necessary," the President may call the armed forces "to prevent or suppress lawless violence, invasion or
rebellion." Are these conditions present in the instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her
Office’s vast intelligence network, she is in the best position to determine the actual condition of the
country.
Under the calling-out power, the President may summon the armed forces to aid him in suppressing
lawless violence, invasion and rebellion. This involves ordinary police action. But every act that goes
beyond the President’s calling-out power is considered illegal or ultra vires. For this reason, a President
must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes to act
under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater are the
limitations.
27
It is pertinent to state, however, that there is a distinction between the President’s authority to declare a
"state of rebellion" (in Sanlakas) and the authority to proclaim a state of national emergency. While
President Arroyo’s authority to declare a "state of rebellion" emanates from her powers as Chief
Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised
Administrative Code of 1987, which provides:
SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition of public
moment or interest, upon the existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force of an executive order.
President Arroyo’s declaration of a "state of rebellion" was merely an act declaring a status or condition of
public moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the
words of Sanlakas, is harmless, without legal significance, and deemed not written. In these cases, PP
1017 is more than that. In declaring a state of national emergency, President Arroyo did not only rely on
Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless
violence, invasion or rebellion. She also relied on Section 17, Article XII, a provision on the State’s
extraordinary power to take over privately-owned public utility and business affected with public interest.
Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such Proclamation cannot be
deemed harmless, without legal significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no
so. What defines the character of PP 1017 are its wordings. It is plain therein that what the President
invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon by
the executive to assist in the maintenance of law and order, and that, while the emergency lasts, they must,
upon pain of arrest and punishment, not commit any acts which will in any way render more difficult the
restoration of order and the enforcement of law."113
In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente V.
Mendoza,114 an authority in constitutional law, said that of the three powers of the President as
Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It is
a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute critics of
the government. It is placed in the keeping of the President for the purpose of enabling him to secure the
people from harm and to restore order so that they can enjoy their individual freedoms. In fact, Section 18,
Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege
of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by
the President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to
justify acts that only under a valid declaration of Martial Law can be done. Its use for any other purpose is
a perversion of its nature and scope, and any act done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban
on public assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of
Presidential Decrees, are powers which can be exercised by the President as Commander-in-Chief only
where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an
exercise of President Arroyo’s calling-out power for the armed forces to assist her in preventing or
suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure that the laws be faithfully executed.
This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested,115 the primary function of the President is to
enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that all laws
are enforced by the officials and employees of his department. Before assuming office, he is required to
take an oath or affirmation to the effect that as President of the Philippines, he will, among others,
"execute its laws."116 In the exercise of such function, the President, if needed, may employ the powers
attached to his office as the Commander-in-Chief of all the armed forces of the country,117 including the
Philippine National Police118 under the Department of Interior and Local Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano,
Teodoro Casiño, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon
President Arroyo the power to enact laws and decrees in violation of Section 1, Article VI of the
Constitution, which vests the power to enact laws in Congress. They assail the clause "to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon
my direction."
/
Petitioners’ contention is understandable. A reading of PP 1017 operative clause shows that it was
lifted120 from Former President Marcos’ Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers
vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire
Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in my capacity as
their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause
states: "to enforce obedience to all the laws and decrees, orders and regulations promulgated by me
personally or upon my direction." Upon the other hand, the enabling clause of PP 1017 issued by President
Arroyo is: to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by
me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by me
personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292
(Administrative Code of 1987). She may issue any of the following:
28
Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or permanent character
in implementation or execution of constitutional or statutory powers shall be promulgated in executive
orders.
Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect of governmental
operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or condition of public
moment or interest, upon the existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force of an executive order.
Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of subordinate
or temporary interest which only concern a particular officer or office of the Government shall be
embodied in memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal administration,
which the President desires to bring to the attention of all or some of the departments, agencies, bureaus or
offices of the Government, for information or compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity as Commander-
in-Chief of the Armed Forces of the Philippines shall be issued as general or special orders.
President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot issue decrees similar
to those issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the
same category and binding force as statutes because they were issued by the President in the exercise of
his legislative power during the period of Martial Law under the 1973 Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the
authority to promulgate "decrees." Legislative power is peculiarly within the province of the Legislature.
Section 1, Article VI categorically states that "[t]he legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives." To be sure, neither Martial
Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative
power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these
decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot call the military to
enforce or implement certain laws, such as customs laws, laws governing family and property relations,
laws on obligations and contracts and the like. She can only order the military, under PP 1017, to enforce
laws pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by
me personally or upon my direction; and as provided in Section 17, Article XII of the Constitution do
hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of national emergency under PP
1017, can call the military not only to enforce obedience "to all the laws and to all decrees x x x" but also
to act pursuant to the provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the
emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of
any privately-owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017?
The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant
the President, without any authority or delegation from Congress, to take over or direct the operation of
any privately-owned public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking of
the 1971 Constitutional Convention.122 In effect at the time of its approval was President Marcos’ Letter
of Instruction No. 2 dated September 22, 1972 instructing the Secretary of National Defense to take over
"the management, control and operation of the Manila Electric Company, the Philippine Long Distance
Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National
Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful
prosecution by the Government of its effort to contain, solve and end the present national emergency."
Petitioners, particularly the members of the House of Representatives, claim that President Arroyo’s
inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature’s emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President’s authority to declare "a state of national emergency"
and to exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants
the President such power, hence, no legitimate constitutional objection can be raised. But to the second,
manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting
separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a
limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper
to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such
powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only to war but also to
"other national emergency." If the intention of the Framers of our Constitution was to withhold from the
President the authority to declare a "state of national emergency" pursuant to Section 18, Article VII
(calling-out power) and grant it to Congress (like the declaration of the existence of a state of war), then
the Framers could have provided so. Clearly, they did not intend that Congress should first authorize the
President before he can declare a "state of national emergency." The logical conclusion then is that
President Arroyo could validly declare the existence of a state of national emergency even in the absence
of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately owned public utility or
business affected with public interest, is a different matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be construed together.
Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the same
29
subject matter will be construed together and considered in the light of each other.123 Considering that
Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate to national emergencies,
they must be read together to determine the limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2),
Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a
power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or
practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise
to allow Congress to grant emergency powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared by Congress.124
Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over
of private business affected with public interest is just another facet of the emergency powers generally
reposed upon Congress. Thus, when Section 17 states that the "the State may, during the emergency and
under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately
owned public utility or business affected with public interest," it refers to Congress, not the President.
Now, whether or not the President may exercise such power is dependent on whether Congress may
delegate it to him pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet & Tube
Co. et al. v. Sawyer,125 held:
It is clear that if the President had authority to issue the order he did, it must be found in some provision of
the Constitution. And it is not claimed that express constitutional language grants this power to the
President. The contention is that presidential power should be implied from the aggregate of his powers
under the Constitution. Particular reliance is placed on provisions in Article II which say that "The
executive Power shall be vested in a President . . . .;" that "he shall take Care that the Laws be faithfully
executed;" and that he "shall be Commander-in-Chief of the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the President’s military power as Commander-in-
Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding
broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need
not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to
our constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power
as such to take possession of private property in order to keep labor disputes from stopping production.
This is a job for the nation’s lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions that grant executive
power to the President. In the framework of our Constitution, the President’s power to see that the laws are
faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the
lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.
And the Constitution is neither silent nor equivocal about who shall make laws which the President is to
execute. The first section of the first article says that "All legislative Powers herein granted shall be vested
in a Congress of the United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII refers
to "tsunami," "typhoon," "hurricane"and"similar occurrences." This is a limited view of "emergency."

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of
existing danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions
are the elements of intensity, variety, and perception.127 Emergencies, as perceived by legislature or
executive in the United Sates since 1933, have been occasioned by a wide range of situations, classifiable
under three (3) principal heads: a) economic,128 b) natural disaster,129 and c) national security.130
"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion,
economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide
proportions or effect.131 This is evident in the Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee’s definition of "national emergency" which appears in
Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the operation of any
privately owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural
disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."
MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service.132
xxxxxx
MR. TINGSON. May I ask the committee if "national emergency" refers to military national emergency
or could this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency, Congress may not be able to convene and,
therefore, unable to delegate to the President the power to take over privately-owned public utility or
business affected with public interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which extraordinary
measures are exercised, remains in Congress even in times of crisis.
"x x x
After all the criticisms that have been made against the efficiency of the system of the separation of
powers, the fact remains that the Constitution has set up this form of government, with all its defects and
shortcomings, in preference to the commingling of powers in one man or group of men. The Filipino
people by adopting parliamentary government have given notice that they share the faith of other
democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under this
framework of government, legislation is preserved for Congress all the time, not excepting periods of
crisis no matter how serious. Never in the history of the United States, the basic features of whose
Constitution have been copied in ours, have specific functions of the legislative branch of enacting laws
been surrendered to another department – unless we regard as legislating the carrying out of a legislative
30
policy according to prescribed standards; no, not even when that Republic was fighting a total war, or
when it was engaged in a life-and-death struggle to preserve the Union. The truth is that under our concept
of constitutional government, in times of extreme perils more than in normal circumstances ‘the various
branches, executive, legislative, and judicial,’ given the ability to act, are called upon ‘to perform the
duties and discharge the responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017,
this Court rules that such Proclamation does not authorize her during the emergency to temporarily take
over or direct the operation of any privately owned public utility or business affected with public interest
without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national emergency, however,
without legislation, he has no power to take over privately-owned public utility or business affected with
public interest. The President cannot decide whether exceptional circumstances exist warranting the take
over of privately-owned public utility or business affected with public interest. Nor can he determine when
such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to
point out the types of businesses affected with public interest that should be taken over. In short, the
President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in
the absence of an emergency powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to security, is that military
necessity and the guaranteed rights of the individual are often not compatible. Our history reveals that in
the crucible of conflict, many rights are curtailed and trampled upon. Here, the right against unreasonable
search and seizure; the right against warrantless arrest; and the freedom of speech, of expression, of the
press, and of assembly under the Bill of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested
without warrants on their way to EDSA to celebrate the 20th Anniversary of People Power I. The arresting
officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on
February 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office. Three
policemen were assigned to guard their office as a possible "source of destabilization." Again, the basis
was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were
"turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to celebrate the 20th
Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted from
the implementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In
general, does the illegal implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and
misabused135 and may afford an opportunity for abuse in the manner of application.136 The validity of a
statute or ordinance is to be determined from its general purpose and its efficiency to accomplish the end
desired, not from its effects in a particular case.137 PP 1017 is merely an invocation of the President’s

calling-out power. Its general purpose is to command the AFP to suppress all forms of lawless violence,
invasion or rebellion. It had accomplished the end desired which prompted President Arroyo to issue PP
1021. But there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest,
search or violate the citizens’ constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor
committed illegal acts? The answer is no. The criterion by which the validity of the statute or ordinance is
to be measured is the essential basis for the exercise of power, and not a mere incidental result arising
from its exertion.138 This is logical. Just imagine the absurdity of situations when laws maybe declared
unconstitutional just because the officers implementing them have acted arbitrarily. If this were so,
judging from the blunders committed by policemen in the cases passed upon by the Court, majority of the
provisions of the Revised Penal Code would have been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are "acts
and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines." They are internal rules issued by the executive officer to his subordinates precisely for the
proper and efficient administration of law. Such rules and regulations create no relation except between
the official who issues them and the official who receives them.139 They are based on and are the product
of, a relationship in which power is their source, and obedience, their object.140 For these reasons, one
requirement for these rules to be valid is that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and appropriate
actions and measures to suppress and prevent acts of terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution, and
which is invariably associated with "invasion, insurrection or rebellion," the phrase "acts of terrorism" is
still an amorphous and vague concept. Congress has yet to enact a law defining and punishing acts of
terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts not
only our country, but the international community as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the "fight against terrorism" has become one of the
basic slogans when it comes to the justification of the use of force against certain states and against groups
operating internationally. Lists of states "sponsoring terrorism" and of terrorist organizations are set up
and constantly being updated according to criteria that are not always known to the public, but are clearly
determined by strategic interests.
The basic problem underlying all these military actions – or threats of the use of force as the most recent
by the United States against Iraq – consists in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by
armed groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying "One country’s terrorist is another country’s freedom
fighter." The apparent contradiction or lack of consistency in the use of the term "terrorism" may further
be demonstrated by the historical fact that leaders of national liberation movements such as Nelson
Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a
few, were originally labeled as terrorists by those who controlled the territory at the time, but later became
internationally respected statesmen.
What, then, is the defining criterion for terrorist acts – the differentia specifica distinguishing those acts
from eventually legitimate acts of national resistance or self-defense?
31
Since the times of the Cold War the United Nations Organization has been trying in vain to reach a
consensus on the basic issue of definition. The organization has intensified its efforts recently, but has
been unable to bridge the gap between those who associate "terrorism" with any violent act by non-state
groups against civilians, state functionaries or infrastructure or military installations, and those who
believe in the concept of the legitimate use of force when resistance against foreign occupation or against
systematic oppression of ethnic and/or religious groups within a state is concerned.
The dilemma facing the international community can best be illustrated by reference to the contradicting
categorization of organizations and movements such as Palestine Liberation Organization (PLO) – which
is a terrorist group for Israel and a liberation movement for Arabs and Muslims – the Kashmiri resistance
groups – who are terrorists in the perception of India, liberation fighters in that of Pakistan – the earlier
Contras in Nicaragua – freedom fighters for the United States, terrorists for the Socialist camp – or, most
drastically, the Afghani Mujahedeen (later to become the Taliban movement): during the Cold War period
they were a group of freedom fighters for the West, nurtured by the United States, and a terrorist gang for
the Soviet Union. One could go on and on in enumerating examples of conflicting categorizations that
cannot be reconciled in any way – because of opposing political interests that are at the roots of those
perceptions.
How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the
same group and its actions be explained? In our analysis, the basic reason for these striking inconsistencies
lies in the divergent interest of states. Depending on whether a state is in the position of an occupying
power or in that of a rival, or adversary, of an occupying power in a given territory, the definition of
terrorism will "fluctuate" accordingly. A state may eventually see itself as protector of the rights of a
certain ethnic group outside its territory and will therefore speak of a "liberation struggle," not of
"terrorism" when acts of violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly
because of these conflicting interests of sovereign states that determine in each and every instance how a
particular armed movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom fighter
dichotomy. A "policy of double standards" on this vital issue of international affairs has been the
unavoidable consequence.
This "definitional predicament" of an organization consisting of sovereign states – and not of peoples, in
spite of the emphasis in the Preamble to the United Nations Charter! – has become even more serious in
the present global power constellation: one superpower exercises the decisive role in the Security Council,
former great powers of the Cold War era as well as medium powers are increasingly being marginalized;
and the problem has become even more acute since the terrorist attacks of 11 September 2001 I the United
States.141
The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of the
police or military. An illustration is when a group of persons are merely engaged in a drinking spree. Yet
the military or the police may consider the act as an act of terrorism and immediately arrest them pursuant
to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be remembered that an act can
only be considered a crime if there is a law defining the same as such and imposing the corresponding
penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January
16, 1981 enacted by President Marcos during the Martial Law regime. This decree is entitled "Codifying
The Various Laws on Anti-Subversion and Increasing The Penalties for Membership in Subversive
Organizations." The word "terrorism" is mentioned in the following provision: "That one who conspires
with any other person for the purpose of overthrowing the Government of the Philippines x x x by force,
violence, terrorism, x x x shall be punished by reclusion temporal x x x."

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines)
enacted by President Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define "acts
of terrorism." Since there is no law defining "acts of terrorism," it is President Arroyo alone, under G.O.
No. 5, who has the discretion to determine what acts constitute terrorism. Her judgment on this aspect is
absolute, without restrictions. Consequently, there can be indiscriminate arrest without warrants, breaking
into offices and residences, taking over the media enterprises, prohibition and dispersal of all assemblies
and gatherings unfriendly to the administration. All these can be effected in the name of G.O. No. 5. These
acts go far beyond the calling-out power of the President. Certainly, they violate the due process clause of
the Constitution. Thus, this Court declares that the "acts of terrorism" portion of G.O. No. 5 is
unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond what
are necessary and appropriate to suppress and prevent lawless violence, the limitation of their authority in
pursuing the Order. Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in their persons, houses, papers and
effects against unreasonable search and seizure of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched and the persons or things to be
seized."142 The plain import of the language of the Constitution is that searches, seizures and arrests are
normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the
fundamental protection given by this provision is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of
arrest.143
In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was arrested
without warrant; second, the PNP operatives arrested him on the basis of PP 1017; third, he was brought at
Camp Karingal, Quezon City where he was fingerprinted, photographed and booked like a criminal
suspect; fourth,he was treated brusquely by policemen who "held his head and tried to push him" inside an
unmarked car; fifth, he was charged with Violation of Batas Pambansa Bilang No. 880145 and Inciting to
Sedition; sixth, he was detained for seven (7) hours; and seventh,he was eventually released for
insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant,
arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless arrest. During
the inquest for the charges of inciting to sedition and violation of BP 880, all that the arresting officers
could invoke was their observation that some rallyists were wearing t-shirts with the invective "Oust
32
Gloria Now" and their erroneous assumption that petitioner David was the leader of the rally.146
Consequently, the Inquest Prosecutor ordered his immediate release on the ground of insufficiency of
evidence. He noted that petitioner David was not wearing the subject t-shirt and even if he was wearing it,
such fact is insufficient to charge him with inciting to sedition. Further, he also stated that there is
insufficient evidence for the charge of violation of BP 880 as it was not even known whether petitioner
David was the leader of the rally.147
But what made it doubly worse for petitioners David et al. is that not only was their right against
warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to public
affairs. It is a necessary consequence of our republican institution and complements the right of speech. As
in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing
of a clear and present danger of a substantive evil that Congress has a right to prevent. In other words, like
other rights embraced in the freedom of expression, the right to assemble is not subject to previous
restraint or censorship. It may not be conditioned upon the prior issuance of a permit or authorization from
the government authorities except, of course, if the assembly is intended to be held in a public place, a
permit for the use of such place, and not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to
peaceful assembly. They were not committing any crime, neither was there a showing of a clear and
present danger that warranted the limitation of that right. As can be gleaned from circumstances, the
charges of inciting to sedition and violation of BP 880 were mere afterthought. Even the Solicitor General,
during the oral argument, failed to justify the arresting officers’ conduct. In De Jonge v. Oregon,148 it was
held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable
political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded
as criminals on that score. The question, if the rights of free speech and peaceful assembly are not to be
preserved, is not as to the auspices under which the meeting was held but as to its purpose; not as to the
relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech
which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have
formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their
conspiracy or other violations of valid laws. But it is a different matter when the State, instead of
prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful
public discussion as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members
of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely on the basis
of Malacañang’s directive canceling all permits previously issued by local government units. This is
arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of the principle that
"freedom of assembly is not to be limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that the State has a right to prevent."149 Tolerance is the rule and limitation is
the exception. Only upon a showing that an assembly presents a clear and present danger that the State
may deny the citizens’ right to exercise it. Indeed, respondents failed to show or convince the Court that
the rallyists committed acts amounting to lawless violence, invasion or rebellion. With the blanket
revocation of permits, the distinction between protected and unprotected assemblies was eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local
government units. They have the power to issue permits and to revoke such permits after due notice and
hearing on the determination of the presence of clear and present danger. Here, petitioners were not even
notified and heard on the revocation of their permits.150 The first time they learned of it was at the time of
the dispersal. Such absence of notice is a fatal defect. When a person’s right is restricted by government
action, it behooves a democratic government to see to it that the restriction is fair, reasonable, and
according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of
the press. Petitioners’ narration of facts, which the Solicitor General failed to refute, established the
following: first, the Daily Tribune’s offices were searched without warrant;second, the police operatives
seized several materials for publication; third, the search was conducted at about 1:00 o’ clock in the
morning of February 25, 2006; fourth, the search was conducted in the absence of any official of the Daily
Tribune except the security guard of the building; and fifth, policemen stationed themselves at the vicinity
of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael
Defensor was quoted as saying that such raid was "meant to show a ‘strong presence,’ to tell media outlets
not to connive or do anything that would help the rebels in bringing down this government." Director
General Lomibao further stated that "if they do not follow the standards –and the standards are if they
would contribute to instability in the government, or if they do not subscribe to what is in General Order
No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’" National Telecommunications
Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government for
the duration of the state of national emergency. He warned that his agency will not hesitate to recommend
the closure of any broadcast outfit that violates rules set out for media coverage during times when the
national security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the
conduct of search and seizure. Section 4 requires that a search warrant be issued upon probable cause in
connection with one specific offence to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce. Section 8 mandates that the
search of a house, room, or any other premise be made in the presence of the lawful occupant thereof or
any member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient
age and discretion residing in the same locality. And Section 9 states that the warrant must direct that it be
served in the daytime, unless the property is on the person or in the place ordered to be searched, in which
case a direction may be inserted that it be served at any time of the day or night. All these rules were
violated by the CIDG operatives.
Not only that, the search violated petitioners’ freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of Staff152
this Court held that --
As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan
Mail" and the "We Forum" newspapers. As a consequence of the search and seizure, these premises were
padlocked and sealed, with the further result that the printing and publication of said newspapers were
discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press
guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to express
themselves in print. This state of being is patently anathematic to a democratic framework where a free,
alert and even militant press is essential for the political enlightenment and growth of the citizenry.
33
While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and "We
Forum" newspapers in the above case, yet it cannot be denied that the CIDG operatives exceeded their
enforcement duties. The search and seizure of materials for publication, the stationing of policemen in the
vicinity of the The Daily Tribune offices, and the arrogant warning of government officials to media, are
plain censorship. It is that officious functionary of the repressive government who tells the citizen that he
may speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of
punishment should he be so rash as to disobey.153 Undoubtedly, the The Daily Tribune was subjected to
these arbitrary intrusions because of its anti-government sentiments. This Court cannot tolerate the blatant
disregard of a constitutional right even if it involves the most defiant of our citizens. Freedom to comment
on public affairs is essential to the vitality of a representative democracy. It is the duty of the courts to be
watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. The
motto should always be obsta principiis.154
Incidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribune’s
offices and the seizure of its materials for publication and other papers are illegal; and that the same are
inadmissible "for any purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen, when inspected the Tribune
for the purpose of gathering evidence and you admitted that the policemen were able to get the clippings.
Is that not in admission of the admissibility of these clippings that were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor, and
these are inadmissible for any purpose.155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have to do is to get those past
issues. So why do you have to go there at 1 o’clock in the morning and without any search warrant? Did
they become suddenly part of the evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based on
Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that the
police could go and inspect and gather clippings from Daily Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?

SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is premature to say this, we do not
condone this. If the people who have been injured by this would want to sue them, they can sue and there
are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor
General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don’t know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the
occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for, as you said, a
misapplication of the law. These are acts of the police officers, that is their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and "should
result in no constitutional or statutory breaches if applied according to their letter."
The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively
presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by the President of
the military to prevent or suppress lawless violence, invasion or rebellion. When in implementing its
provisions, pursuant to G.O. No. 5, the military and the police committed acts which violate the citizens’
rights under the Constitution, this Court has to declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion, attached hereto, is
considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would have
normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal acts
were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar
to it, may not again be issued. Already, there have been media reports on April 30, 2006 that allegedly PP
1017 would be reimposed "if the May 1 rallies" become "unruly and violent." Consequently, the
transcendental issues raised by the parties should not be "evaded;" they must now be resolved to prevent
future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President
for the AFP to prevent or suppress lawless violence. The proclamation is sustained by Section 18, Article
VII of the Constitution and the relevant jurisprudence discussed earlier. However, PP 1017’s extraneous
34
provisions giving the President express or implied power (1) to issue decrees; (2) to direct the AFP to
enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by
the President; and (3) to impose standards on media or any form of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under Section 17, Article XII of the Constitution, the
President, in the absence of a legislation, cannot take over privately-owned public utility and private
business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President – acting as
Commander-in-Chief – addressed to subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard – that the military and the police should take only the
"necessary and appropriate actions and measures to suppress and prevent acts of lawless violence."But the
words "acts of terrorism" found in G.O. No. 5 have not been legally defined and made punishable by
Congress and should thus be deemed deleted from the said G.O. While "terrorism" has been denounced
generally in media, no law has been enacted to guide the military, and eventually the courts, to determine
the limits of the AFP’s authority in carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the
warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and
warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of standards on media or
any prior restraint on the press; and (4) the warrantless search of the Tribune offices and the whimsical
seizures of some articles for publication and other materials, are not authorized by the Constitution, the
law and jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative
sanctions on the individual police officers concerned. They have not been individually identified and
given their day in court. The civil complaints or causes of action and/or relevant criminal Informations
have not been presented before this Court. Elementary due process bars this Court from making any
specific pronouncement of civil, criminal or administrative liabilities.
It is well to remember that military power is a means to an end and substantive civil rights are ends in
themselves. How to give the military the power it needs to protect the Republic without unnecessarily
trampling individual rights is one of the eternal balancing tasks of a democratic state.During emergency,
governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary
as to unduly restrain our people’s liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political
philosophies is that, it is possible to grant government the authority to cope with crises without
surrendering the two vital principles of constitutionalism: the maintenance of legal limits to arbitrary
power, and political responsibility of the government to the governed.158
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL
insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress
lawless violence. However, the provisions of PP 1017 commanding the AFP to enforce laws not related to
lawless violence, as well as decrees promulgated by the President, are declared UNCONSTITUTIONAL.
In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII of the
Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to take over
privately-owned public utility or business affected with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should
implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures to suppress and
prevent acts of lawless violence." Considering that "acts of terrorism" have not yet been defined and made
punishable by the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the
KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were
committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition
of standards on media or any form of prior restraint on the press, as well as the warrantless search of the
Tribune offices and whimsical seizure of its articles for publication and other materials, are declared
UNCONSTITUTIONAL.
No costs.
SO ORDERED.
Delegation to People
Art 6 SECTION 32. The Congress shall, as early as possible, provide for a system of initiative and
referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws
or approve or reject any act or law or part thereof passed by the Congress or local legislative body
after the registration of a petition therefor signed by at least ten per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per centum
of the registered voters thereof.
Art 10 Section 10. No province, city, municipality, or barangay may be created, divided, merged,
abolished, or its boundary substantially altered, except in accordance with the criteria established in
the local government code and subject to approval by a majority of the votes cast in a plebiscite in
the political units directly affected.
Art 17 SECTION 2. Amendments to this Constitution may likewise be directly proposed by the
people through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per centum
of the registered voters therein. No amendment under this section shall be authorized within five
years following the ratification of this Constitution nor oftener than once every five years thereafter.
Republic Act No. 6735
August 4, 1989
AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM AND
APPROPRIATING FUNDS THEREFOR
Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:
I. — General Provisions
Section 1. Title. — This Act shall be known as "The Initiative and Referendum Act."
Section 2. Statement of Policy. — The power of the people under a system of initiative and referendum to
directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or
resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby
affirmed, recognized and guaranteed.
Section 3. Definition of Terms. — For purposes of this Act, the following terms shall mean:
(a) "Initiative" is the power of the people to propose amendments to the Constitution or to propose and
enact legislations through an election called for the purpose.
There are three (3) systems of initiative, namely:
35
a.1 Initiative on the Constitution which refers to a petition proposing amendments to the Constitution;
a.2. Initiative on statutes which refers to a petition proposing to enact a national legislation; and
a.3. Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city,
municipal, or barangay law, resolution or ordinance.
(b) "Indirect initiative" is exercise of initiative by the people through a proposition sent to Congress or the
local legislative body for action.
(c) "Referendum" is the power of the electorate to approve or reject a legislation through an election called
for the purpose. It may be of two classes, namely:
c.1. Referendum on statutes which refers to a petition to approve or reject an act or law, or part thereof,
passed by Congress; and
c.2. Referendum on local law which refers to a petition to approve or reject a law, resolution or ordinance
enacted by regional assemblies and local legislative bodies.
(d) "Proposition" is the measure proposed by the voters.
(e) "Plebiscite" is the electoral process by which an initiative on the Constitution is approved or rejected
by the people.
(f) "Petition" is the written instrument containing the proposition and the required number of signatories. It
shall be in a form to be determined by and submitted to the Commission on Elections, hereinafter referred
to as the Commission.
(g) "Local government units" refers to provinces, cities, municipalities and barangays.
(h) "Local legislative bodies" refers to the Sangguniang Panlalawigan, Sangguniang Panlungsod,
Sangguniang Bayan, and Sangguniang Nayon.
(i) "Local executives" refers to the Provincial Governors, City or Municipal Mayors and Punong
Barangay, as the case may be.
Section 4. Who may exercise. — The power of initiative and referendum may be exercised by all
registered voters of the country, autonomous regions, provinces, cities, municipalities and barangays.
Section 5. Requirements. — (a) To exercise the power of initiative or referendum, at least ten per centum
(10%) of the total number of the registered voters, of which every legislative district is represented by at
least three per centum (3%) of the registered voters thereof, shall sign a petition for the purpose and
register the same with the Commission.
(b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the
total number of registered voters as signatories, of which every legislative district must be represented by
at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be
exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five
(5) years thereafter.
(c) The petition shall state the following:

c.1. contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed,
as the case may be;
c.2. the proposition;
c.3. the reason or reasons therefor;
c.4. that it is not one of the exceptions provided herein;
c.5. signatures of the petitioners or registered voters; and
c.6. an abstract or summary in not more than one hundred (100) words which shall be legibly written or
printed at the top of every page of the petition.
(d) A referendum or initiative affecting a law, resolution or ordinance passed by the legislative assembly
of an autonomous region, province or city is deemed validly initiated if the petition thereof is signed by at
least ten per centum (10%) of the registered voters in the province or city, of which every legislative
district must be represented by at least three per centum (3%) of the registered voters therein; Provided,
however, That if the province or city is composed only of one (1) legislative district, then at least each
municipality in a province or each barangay in a city should be represented by at least three per centum
(3%) of the registered voters therein.
(e) A referendum of initiative on an ordinance passed in a municipality shall be deemed validly initiated if
the petition therefor is signed by at least ten per centum (10%) of the registered voters in the municipality,
of which every barangay is represented by at least three per centum (3%) of the registered voters therein.
(f) A referendum or initiative on a barangay resolution or ordinance is deemed validly initiated if signed
by at least ten per centum (10%) of the registered voters in said barangay.
Section 6. Special Registration. — The Commission on Election shall set a special registration day at least
three (3) weeks before a scheduled initiative or referendum.
Section 7. Verification of Signatures. — The Election Registrar shall verify the signatures on the basis of
the registry list of voters, voters' affidavits and voters identification cards used in the immediately
preceding election.
II. — National Initiative and Referendum
SECTION 8. Conduct and Date of Initiative or Referendum. — The Commission shall call and supervise
the conduct of initiative or referendum.
Within a period of thirty (30) days from receipt of the petition, the Commission shall, upon determining
the sufficiency of the petition, publish the same in Filipino and English at least twice in newspapers of
general and local circulation and set the date of the initiative or referendum which shall not be earlier than
forty-five (45) days but not later than ninety (90) days from the determination by the Commission of the
sufficiency of the petition.
Section 9. Effectivity of Initiative or Referendum Proposition. — (a) The Proposition of the enactment,
approval, amendment or rejection of a national law shall be submitted to and approved by a majority of
the votes cast by all the registered voters of the Philippines.
If, as certified to by the Commission, the proposition is approved by a majority of the votes cast, the
national law proposed for enactment, approval, or amendment shall become effective fifteen (15) days
36
following completion of its publication in the Official Gazette or in a newspaper of general circulation in
the Philippines. If, as certified by the Commission, the proposition to reject a national law is approved by
a majority of the votes cast, the said national law shall be deemed repealed and the repeal shall become
effective fifteen (15) days following the completion of publication of the proposition and the certification
by the Commission in the Official Gazette or in a newspaper of general circulation in the Philippines.
However, if the majority vote is not obtained, the national law sought to be rejected or amended shall
remain in full force and effect.
(b) The proposition in an initiative on the Constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.
(c) A national or local initiative proposition approved by majority of the votes cast in an election called for
the purpose shall become effective fifteen (15) days after certification and proclamation by the
Commission.
Section 10. Prohibited Measures. — The following cannot be the subject of an initiative or referendum
petition:
(a) No petition embracing more than one (1) subject shall be submitted to the electorate; and
(b) Statutes involving emergency measures, the enactment of which are specifically vested in Congress by
the Constitution, cannot be subject to referendum until ninety (90) days after its effectivity.
Section 11. Indirect Initiative. — Any duly accredited people's organization, as defined by law, may file a
petition for indirect initiative with the House of Representatives, and other legislative bodies. The petition
shall contain a summary of the chief purposes and contents of the bill that the organization proposes to be
enacted into law by the legislature.
The procedure to be followed on the initiative bill shall be the same as the enactment of any legislative
measure before the House of Representatives except that the said initiative bill shall have precedence over
the pending legislative measures on the committee.
Section 12. Appeal. — The decision of the Commission on the findings of the sufficiency or insufficiency
of the petition for initiative or referendum may be appealed to the Supreme Court within thirty (30) days
from notice thereof.
III. — Local Initiative and Referendum
SECTION 13. Procedure in Local Initiative. — (a) Not less than two thousand (2,000) registered voters in
case of autonomous regions, one thousand (1,000) in case of provinces and cities, one hundred (100) in
case of municipalities, and fifty (50) in case of barangays, may file a petition with the Regional Assembly
or local legislative body, respectively, proposing the adoption, enactment, repeal, or amendment, of any
law, ordinance or resolution.
(b) If no favorable action thereon is made by local legislative body within (30) days from its presentation,
the proponents through their duly authorized and registered representative may invoke their power of
initiative, giving notice thereof to the local legislative body concerned.
(c) The proposition shall be numbered serially starting from one (1). The Secretary of Local Government
or his designated representative shall extend assistance in the formulation of the proposition.
(d) Two or more propositions may be submitted in an initiative.

(e) Proponents shall have one hundred twenty (120) days in case of autonomous regions, ninety (90) days
in case of provinces and cities, sixty (60) days in case of municipalities, and thirty (30) days in case of
barangays, from notice mentioned in subsection (b) hereof to collect the required number of signatures.
(f) The petition shall be signed before the Election Registrar, or his designated representative, in the
presence of a representative of the proponent, and a representative of the regional assemblies and local
legislative bodies concerned in a public place in the autonomous region or local government unit, as the
case may be. Signature stations may be established in as many places as may be warranted.
(g) Upon the lapse of the period herein provided, the Commission on Elections, through its office in the
local government unit concerned shall certify as to whether or not the required number of signatures has
been obtained. Failure to obtain the required number is a defeat of the proposition.
(h) If the required number of the signatures is obtained, the Commission shall then set a date for the
initiative at which the proposition shall be submitted to the registered voters in the local government unit
concerned for their approval within ninety (90) days from the date of certification by the Commission, as
provided in subsection (g) hereof, in case of autonomous regions, sixty (60) days in case of the provinces
and cities, forty-five (45) days in case of municipalities, and thirty (30) days in case of barangays. The
initiative shall then be held on the date set, after which the results thereof shall be certified and proclaimed
by the Commission on Elections.
Section 14. Effectivity of Local Propositions. — If the proposition is approved by a majority of the votes
cast, it shall take effect fifteen (15) days after certification by the Commission as if affirmative action
thereon had been made by the local legislative body and local executive concerned. If it fails to obtain said
number of votes, the proposition is considered defeated.
Section 15. Limitations on Local Initiatives. — (a) The power of local initiative shall not be exercised
more than once a year.
(b) Initiative shall extend only to subjects or matters which are within the legal powers of the local
legislative bodies to enact.
(c) If at any time before the initiative is held, the local legislative body shall adopt in toto the proposition
presented, the initiative shall be cancelled. However, those against such action may, if they so desire,
apply for initiative in the manner herein provided.
Section 16. Limitations Upon Local Legislative Bodies. — Any proposition or ordinance or resolution
approved through the system of initiative and referendum as herein provided shall not be repealed,
modified or amended, by the local legislative body concerned within six (6) months from the date
therefrom, and may be amended, modified or repealed by the local legislative body within three (3) years
thereafter by a vote of three-fourths (3/4) of all its members: Provided, however, that in case of barangays,
the period shall be one (1) year after the expiration of the first six (6) months.
Section 17. Local Referendum. — Notwithstanding the provisions of Section 4 hereof, any local
legislative body may submit to the registered voters of autonomous region, provinces, cities,
municipalities and barangays for the approval or rejection, any ordinance or resolution duly enacted or
approved.
Said referendum shall be held under the control and direction of the Commission within sixty (60) days in
case of provinces and cities, forty-five (45) days in case of municipalities and thirty (30) days in case of
barangays.
37
The Commission shall certify and proclaim the results of the said referendum.
Section 18. Authority of Courts. — Nothing in this Act shall prevent or preclude the proper courts from
declaring null and void any proposition approved pursuant to this Act for violation of the Constitution or
want of capacity of the local legislative body to enact the said measure.
IV. — Final Provisions
SECTION 19. Applicability of the Omnibus Election Code. — The Omnibus Election Code and other
election laws, not inconsistent with the provisions of this Act, shall apply to all initiatives and referenda.
Section 20. Rules and Regulations. — The Commission is hereby empowered to promulgate such rules
and regulations as may be necessary to carry out the purposes of this Act.
Section 21. Appropriations. — The amount necessary to defray the cost of the initial implementation of
this Act shall be charged against the Contingent Fund in the General Appropriations Act of the current
year. Thereafter, such sums as may be necessary for the full implementation of this Act shall be included
in the annual General Appropriations Act.
Section 22. Separability Clause. — If any part or provision of this Act is held invalid or unconstitutional,
the other parts or provisions thereof shall remain valid and effective.
Section 23. Effectivity. — This Act shall take effect fifteen (15) days after its publication in a newspaper
of general circulation.
Approved: August 4, 1989
PEOPLE v VERA
This is an original action instituted in this court on August 19, 1937, for the issuance of the writ of
certiorari and of prohibition to the Court of First Instance of Manila so that this court may review the
actuations of the aforesaid Court of First Instance in criminal case No. 42649 entitled "The People of the
Philippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the application of the defendant
Mariano Cu Unjieng therein for probation under the provisions of Act No. 4221, and thereafter prohibit
the said Court of First Instance from taking any further action or entertaining further the aforementioned
application for probation, to the end that the defendant Mariano Cu Unjieng may be forthwith committed
to prison in accordance with the final judgment of conviction rendered by this court in said case (G. R. No.
41200). 1
Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking Corporation, are
respectively the plaintiff and the offended party, and the respondent herein Mariano Cu Unjieng is one of
the defendants, in the criminal case entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng,
et al.", criminal case No. 42649 of the Court of First Instance of Manila and G.R. No. 41200 of this court.
Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh branch of the Court of First
Instance of Manila, who heard the application of the defendant Mariano Cu Unjieng for probation in the
aforesaid criminal case.
The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on
October 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the case
as private prosecutor. After a protracted trial unparalleled in the annals of Philippine jurisprudence both in
the length of time spent by the court as well as in the volume in the testimony and the bulk of the exhibits
presented, the Court of First Instance of Manila, on January 8, 1934, rendered a judgment of conviction

sentencing the defendant Mariano Cu Unjieng to indeterminate penalty ranging from four years and two
months of prision correccional to eight years of prision mayor, to pay the costs and with reservation of
civil action to the offended party, the Hongkong and Shanghai Banking Corporation. Upon appeal, the
court, on March 26, 1935, modified the sentence to an indeterminate penalty of from five years and six
months of prision correccional to seven years, six months and twenty-seven days of prision mayor, but
affirmed the judgment in all other respects. Mariano Cu Unjieng filed a motion for reconsideration and
four successive motions for new trial which were denied on December 17, 1935, and final judgment was
accordingly entered on December 18, 1935. The defendant thereupon sought to have the case elevated on
certiorari to the Supreme Court of the United States but the latter denied the petition for certiorari in
November, 1936. This court, on November 24, 1936, denied the petition subsequently filed by the
defendant for leave to file a second alternative motion for reconsideration or new trial and thereafter
remanded the case to the court of origin for execution of the judgment.
The instant proceedings have to do with the application for probation filed by the herein respondent
Mariano Cu Unjieng on November 27, 1936, before the trial court, under the provisions of Act No.
4221 of the defunct Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his petition,
inter alia, that he is innocent of the crime of which he was convicted, that he has no criminal record and
that he would observe good conduct in the future. The Court of First Instance of Manila, Judge Pedro
Tuason presiding, referred the application for probation of the Insular Probation Office which
recommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of Manila, seventh
branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the
herein respondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5, 1937,
alleging, among other things, that Act No. 4221, assuming that it has not been repealed by section 2 of
Article XV of the Constitution, is nevertheless violative of section 1, subsection (1), Article III of the
Constitution guaranteeing equal protection of the laws for the reason that its applicability is not uniform
throughout the Islands and because section 11 of the said Act endows the provincial boards with the power
to make said law effective or otherwise in their respective or otherwise in their respective provinces. The
private prosecution also filed a supplementary opposition on April 19, 1937, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue delegation of legislative power to the provincial boards
of several provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred in the opposition of the
private prosecution except with respect to the questions raised concerning the constitutionality of Act No.
4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding that "las
pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y que todos los
hechos probados no son inconsistentes o incongrentes con su inocencia" and concludes that the herein
respondent Mariano Cu Unjieng "es inocente por duda racional" of the crime of which he stands convicted
by this court in G.R. No. 41200, but denying the latter's petition for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia social que se han
expuesto en el cuerpo de esta resolucion, que hacen al peticionario acreedor de la misma, una parte de la
opinion publica, atizada por los recelos y las suspicacias, podria levantarse indignada contra un sistema de
probacion que permite atisbar en los procedimientos ordinarios de una causa criminal perturbando la
quietud y la eficacia de las decisiones ya recaidas al traer a la superficie conclusiones enteramente
differentes, en menoscabo del interes publico que demanda el respeto de las leyes y del veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the
resolution denying probation and a notice of intention to file a motion for reconsideration. An alternative
motion for reconsideration or new trial was filed by counsel on July 13, 1937. This was supplemented by
an additional motion for reconsideration submitted on July 14, 1937. The aforesaid motions were set for
hearing on July 31, 1937, but said hearing was postponed at the petition of counsel for the respondent
38
Mariano Cu Unjieng because a motion for leave to intervene in the case as amici curiae signed by thirty-
three (thirty-four) attorneys had just been filed with the trial court. Attorney Eulalio Chaves whose
signature appears in the aforesaid motion subsequently filed a petition for leave to withdraw his
appearance as amicus curiae on the ground that the motion for leave to intervene as amici curiae was
circulated at a banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and that
he signed the same "without mature deliberation and purely as a matter of courtesy to the person who
invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance of
an order of execution of the judgment of this court in said case and forthwith to commit the herein
respondent Mariano Cu Unjieng to jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene as
amici curiae aforementioned, asking that a date be set for a hearing of the same and that, at all events, said
motion should be denied with respect to certain attorneys signing the same who were members of the legal
staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O.
Vera issued an order requiring all parties including the movants for intervention as amici curiae to appear
before the court on August 14, 1937. On the last-mentioned date, the Fiscal of the City of Manila moved
for the hearing of his motion for execution of judgment in preference to the motion for leave to intervene
as amici curiae but, upon objection of counsel for Mariano Cu Unjieng, he moved for the postponement of
the hearing of both motions. The respondent judge thereupon set the hearing of the motion for execution
on August 21, 1937, but proceeded to consider the motion for leave to intervene as amici curiae as in
order. Evidence as to the circumstances under which said motion for leave to intervene as amici curiae
was signed and submitted to court was to have been heard on August 19, 1937. But at this juncture, herein
petitioners came to this court on extraordinary legal process to put an end to what they alleged was an
interminable proceeding in the Court of First Instance of Manila which fostered "the campaign of the
defendant Mariano Cu Unjieng for delay in the execution of the sentence imposed by this Honorable Court
on him, exposing the courts to criticism and ridicule because of the apparent inability of the judicial
machinery to make effective a final judgment of this court imposed on the defendant Mariano Cu
Unjieng."
The scheduled hearing before the trial court was accordingly suspended upon the issuance of a temporary
restraining order by this court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein
petitioners allege that the respondent judge has acted without jurisdiction or in excess of his jurisdiction:
I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under
probation for the following reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to apply only to the
provinces of the Philippines; it nowhere states that it is to be made applicable to chartered cities like the
City of Manila.
(2) While section 37 of the Administrative Code contains a proviso to the effect that in the absence of a
special provision, the term "province" may be construed to include the City of Manila for the purpose of
giving effect to laws of general application, it is also true that Act No. 4221 is not a law of general
application because it is made to apply only to those provinces in which the respective provincial boards
shall have provided for the salary of a probation officer.
(3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would not be
applicable to it because it has provided for the salary of a probation officer as required by section 11
thereof; it being immaterial that there is an Insular Probation Officer willing to act for the City of Manila,

said Probation Officer provided for in section 10 of Act No. 4221 being different and distinct from the
Probation Officer provided for in section 11 of the same Act.
II. Because even if the respondent judge originally had jurisdiction to entertain the application for
probation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in excess
thereof in continuing to entertain the motion for reconsideration and by failing to commit Mariano Cu
Unjieng to prison after he had promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng's
application for probation, for the reason that:
(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the granting or
denying of applications for probation.
(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June 28, 1937, it
became final and executory at the moment of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of said order or to modify or change the
same.
III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime for
which he was convicted by final judgment of this court, which finding is not only presumptuous but
without foundation in fact and in law, and is furthermore in contempt of this court and a violation of the
respondent's oath of office as ad interim judge of first instance.
IV. Because the respondent judge has violated and continues to violate his duty, which became imperative
when he issued his order of June 28, 1937, denying the application for probation, to commit his co-
respondent to jail.
Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary course of
law.
In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai Banking
Corporation further contends that Act No. 4221 of the Philippine Legislature providing for a system of
probation for persons eighteen years of age or over who are convicted of crime, is unconstitutional
because it is violative of section 1, subsection (1), Article III, of the Constitution of the Philippines
guaranteeing equal protection of the laws because it confers upon the provincial board of its province the
absolute discretion to make said law operative or otherwise in their respective provinces, because it
constitutes an unlawful and improper delegation to the provincial boards of the several provinces of the
legislative power lodged by the Jones Law (section 8) in the Philippine Legislature and by the Constitution
(section 1, Art. VI) in the National Assembly; and for the further reason that it gives the provincial boards,
in contravention of the Constitution (section 2, Art. VIII) and the Jones Law (section 28), the authority to
enlarge the powers of the Court of First Instance of different provinces without uniformity. In another
supplementary petition dated September 14, 1937, the Fiscal of the City of Manila, in behalf of one of the
petitioners, the People of the Philippine Islands, concurs for the first time with the issues raised by other
petitioner regarding the constitutionality of Act No. 4221, and on the oral argument held on October 6,
1937, further elaborated on the theory that probation is a form of reprieve and therefore Act. No. 4221 is
an encroachment on the exclusive power of the Chief Executive to grant pardons and reprieves. On
October 7, 1937, the City Fiscal filed two memorandums in which he contended that Act No. 4221 not
only encroaches upon the pardoning power to the executive, but also constitute an unwarranted delegation
of legislative power and a denial of the equal protection of the laws. On October 9, 1937, two
memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the People
of the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai Banking
39
Corporation, one sustaining the power of the state to impugn the validity of its own laws and the other
contending that Act No. 4221 constitutes an unwarranted delegation of legislative power, were presented.
Another joint memorandum was filed by the same persons on the same day, October 9, 1937, alleging that
Act No. 4221 is unconstitutional because it denies the equal protection of the laws and constitutes an
unlawful delegation of legislative power and, further, that the whole Act is void: that the Commonwealth
is not estopped from questioning the validity of its laws; that the private prosecution may intervene in
probation proceedings and may attack the probation law as unconstitutional; and that this court may pass
upon the constitutional question in prohibition proceedings.
Respondents in their answer dated August 31, 1937, as well as in their oral argument and memorandums,
challenge each and every one of the foregoing proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law to warrant the issuance of the writ of
certiorari or of prohibition.
(2) That the aforesaid petition is premature because the remedy sought by the petitioners is the very same
remedy prayed for by them before the trial court and was still pending resolution before the trial court
when the present petition was filed with this court.
(3) That the petitioners having themselves raised the question as to the execution of judgment before the
trial court, said trial court has acquired exclusive jurisdiction to resolve the same under the theory that its
resolution denying probation is unappealable.
(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of First Instance to
decide the question as to whether or not the execution will lie, this court nevertheless cannot exercise said
jurisdiction while the Court of First Instance has assumed jurisdiction over the same upon motion of
herein petitioners themselves.
(5) That upon the procedure followed by the herein petitioners in seeking to deprive the trial court of its
jurisdiction over the case and elevate the proceedings to this court, should not be tolerated because it
impairs the authority and dignity of the trial court which court while sitting in the probation cases is "a
court of limited jurisdiction but of great dignity."
(6) That under the supposition that this court has jurisdiction to resolve the question submitted to and
pending resolution by the trial court, the present action would not lie because the resolution of the trial
court denying probation is appealable; for although the Probation Law does not specifically provide that
an applicant for probation may appeal from a resolution of the Court of First Instance denying probation,
still it is a general rule in this jurisdiction that a final order, resolution or decision of an inferior court is
appealable to the superior court.
(7) That the resolution of the trial court denying probation of herein respondent Mariano Cu Unjieng being
appealable, the same had not become final and executory for the reason that the said respondent had filed
an alternative motion for reconsideration and new trial within the requisite period of fifteen days, which
motion the trial court was able to resolve in view of the restraining order improvidently and erroneously
issued by this court.lawphi1.net
(8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the trial court
denying probation is not final and unappealable when he presented his answer to the motion for
reconsideration and agreed to the postponement of the hearing of the said motion.

(9) That under the supposition that the order of the trial court denying probation is not appealable, it is
incumbent upon the accused to file an action for the issuance of the writ of certiorari with mandamus, it
appearing that the trial court, although it believed that the accused was entitled to probation, nevertheless
denied probation for fear of criticism because the accused is a rich man; and that, before a petition for
certiorari grounded on an irregular exercise of jurisdiction by the trial court could lie, it is incumbent upon
the petitioner to file a motion for reconsideration specifying the error committed so that the trial court
could have an opportunity to correct or cure the same.
(10) That on hypothesis that the resolution of this court is not appealable, the trial court retains its
jurisdiction within a reasonable time to correct or modify it in accordance with law and justice; that this
power to alter or modify an order or resolution is inherent in the courts and may be exercise either motu
proprio or upon petition of the proper party, the petition in the latter case taking the form of a motion for
reconsideration.
(11) That on the hypothesis that the resolution of the trial court is appealable as respondent allege, said
court cannot order execution of the same while it is on appeal, for then the appeal would not be availing
because the doors of probation will be closed from the moment the accused commences to serve his
sentence (Act No. 4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No. 4221
is constitutional because, contrary to the allegations of the petitioners, it does not constitute an undue
delegation of legislative power, does not infringe the equal protection clause of the Constitution, and does
not encroach upon the pardoning power of the Executive. In an additional memorandum filed on the same
date, counsel for the respondents reiterate the view that section 11 of Act No. 4221 is free from
constitutional objections and contend, in addition, that the private prosecution may not intervene in
probation proceedings, much less question the validity of Act No. 4221; that both the City Fiscal and the
Solicitor-General are estopped from questioning the validity of the Act; that the validity of Act cannot be
attacked for the first time before this court; that probation in unavailable; and that, in any event, section 11
of the Act No. 4221 is separable from the rest of the Act. The last memorandum for the respondent
Mariano Cu Unjieng was denied for having been filed out of time but was admitted by resolution of this
court and filed anew on November 5, 1937. This memorandum elaborates on some of the points
raised by the respondents and refutes those brought up by the petitioners.
In the scrutiny of the pleadings and examination of the various aspects of the present case, we noted that
the court below, in passing upon the merits of the application of the respondent Mariano Cu Unjieng and
in denying said application assumed the task not only of considering the merits of the application, but of
passing upon the culpability of the applicant, notwithstanding the final pronouncement of guilt by this
court. (G.R. No. 41200.) Probation implies guilt be final judgment. While a probation case may look into
the circumstances attending the commission of the offense, this does not authorize it to reverse the
findings and conclusive of this court, either directly or indirectly, especially wherefrom its own admission
reliance was merely had on the printed briefs, averments, and pleadings of the parties. As already
observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases,
"if each and every Court of First Instance could enjoy the privilege of overruling decisions of the Supreme
Court, there would be no end to litigation, and judicial chaos would result." A becoming modesty of
inferior courts demands conscious realization of the position that they occupy in the interrelation and
operation of the intergrated judicial system of the nation.
After threshing carefully the multifarious issues raised by both counsel for the petitioners and the
respondents, this court prefers to cut the Gordian knot and take up at once the two fundamental questions
presented, namely, (1) whether or not the constitutionality of Act No. 4221 has been properly raised in
these proceedings; and (2) in the affirmative, whether or not said Act is constitutional. Considerations of
these issues will involve a discussion of certain incidental questions raised by the parties.
40
To arrive at a correct conclusion on the first question, resort to certain guiding principles is necessary. It is
a well-settled rule that the constitutionality of an act of the legislature will not be determined by the courts
unless that question is properly raised and presented inappropriate cases and is necessary to a
determination of the case; i.e., the issue of constitutionality must be the very lis mota presented. (McGirr
vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.)
The question of the constitutionality of an act of the legislature is frequently raised in ordinary actions.
Nevertheless, resort may be made to extraordinary legal remedies, particularly where the remedies in the
ordinary course of law even if available, are not plain, speedy and adequate. Thus, in Cu Unjieng vs.
Patstone ([1922]), 42 Phil., 818), this court held that the question of the constitutionality of a statute may
be raised by the petitioner in mandamus proceedings (see, also, 12 C. J., p. 783); and in Government of the
Philippine Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer vs. Government of the
Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this court declared an act of the legislature
unconstitutional in an action of quo warranto brought in the name of the Government of the Philippines. It
has also been held that the constitutionality of a statute may be questioned in habeas corpus proceedings
(12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the
contrary; on an application for injunction to restrain action under the challenged statute (mandatory, see
Cruz vs. Youngberg [1931], 56 Phil., 234); and even on an application for preliminary injunction where
the determination of the constitutional question is necessary to a decision of the case. (12 C. J., p. 783.)
The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47 Phil.,
385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280;
81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The case of Yu
Cong Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the present one, an original
action for certiorari and prohibition. The constitutionality of Act No. 2972, popularly known as the
Chinese Bookkeeping Law, was there challenged by the petitioners, and the constitutional issue was not
met squarely by the respondent in a demurrer. A point was raised "relating to the propriety of the
constitutional question being decided in original proceedings in prohibition." This court decided to take up
the constitutional question and, with two justices dissenting, held that Act No. 2972 was constitutional.
The case was elevated on writ of certiorari to the Supreme Court of the United States which reversed the
judgment of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the
question of jurisdiction, however, the Federal Supreme Court, though its Chief Justice, said:
By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme court is
granted concurrent jurisdiction in prohibition with courts of first instance over inferior tribunals or
persons, and original jurisdiction over courts of first instance, when such courts are exercising functions
without or in excess of their jurisdiction. It has been held by that court that the question of the validity of
the criminal statute must usually be raised by a defendant in the trial court and be carried regularly in
review to the Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in
this case where a new act seriously affected numerous persons and extensive property rights, and was
likely to cause a multiplicity of actions, the Supreme Court exercised its discretion to bring the issue to the
act's validity promptly before it and decide in the interest of the orderly administration of justice. The
court relied by analogy upon the cases of Ex parte Young (209 U. S., 123;52 Law ed., 714; 13 L. R. A. [N.
S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R.
A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law.
ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the
jurisdiction was raise by demurrer to the petition, this is now disclaimed on behalf of the respondents, and
both parties ask a decision on the merits. In view of the broad powers in prohibition granted to that court
under the Island Code, we acquiesce in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and
directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction
with which it is not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The general rule,
although there is a conflict in the cases, is that the merit of prohibition will not lie whether the inferior

court has jurisdiction independent of the statute the constitutionality of which is questioned, because in
such cases the interior court having jurisdiction may itself determine the constitutionality of the statute,
and its decision may be subject to review, and consequently the complainant in such cases ordinarily has
adequate remedy by appeal without resort to the writ of prohibition. But where the inferior court or
tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the
writ of prohibition from enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re
Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs.
Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields
[1837], 5 Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No.
4221 which prescribes in detailed manner the procedure for granting probation to accused persons after
their conviction has become final and before they have served their sentence. It is true that at common law
the authority of the courts to suspend temporarily the execution of the sentence is recognized and,
according to a number of state courts, including those of Massachusetts, Michigan, New York, and Ohio,
the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People
vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs. Court of Session [1894],
141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United
States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas.
1917B, 355), the Supreme Court of the United States expressed the opinion that under the common law
the power of the court was limited to temporary suspension, and brushed aside the contention as to
inherent judicial power saying, through Chief Justice White:
Indisputably under our constitutional system the right to try offenses against the criminal laws and upon
conviction to impose the punishment provided by law is judicial, and it is equally to be conceded that, in
exerting the powers vested in them on such subject, courts inherently possess ample right to exercise
reasonable, that is, judicial, discretion to enable them to wisely exert their authority. But these concessions
afford no ground for the contention as to power here made, since it must rest upon the proposition that the
power to enforce begets inherently a discretion to permanently refuse to do so. And the effect of the
proposition urged upon the distribution of powers made by the Constitution will become apparent when it
is observed that indisputable also is it that the authority to define and fix the punishment for crime is
legislative and includes the right in advance to bring within judicial discretion, for the purpose of
executing the statute, elements of consideration which would be otherwise beyond the scope of judicial
authority, and that the right to relieve from the punishment, fixed by law and ascertained according to the
methods by it provided belongs to the executive department.
Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of First
Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion that the
power to suspend the execution of sentences pronounced in criminal cases is not inherent in the judicial
function. "All are agreed", he said, "that in the absence of statutory authority, it does not lie within the
power of the courts to grant such suspensions." (at p. 278.) Both petitioner and respondents are correct,
therefore, when they argue that a Court of First Instance sitting in probation proceedings is a court of
limited jurisdiction. Its jurisdiction in such proceedings is conferred exclusively by Act No. 4221 of the
Philippine Legislature.
It is, of course, true that the constitutionality of a statute will not be considered on application for
prohibition where the question has not been properly brought to the attention of the court by objection of
some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260
Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that the constitutional issue has been
squarely presented not only before this court by the petitioners but also before the trial court by the private
prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of the court below, declined to
pass upon the question on the ground that the private prosecutor, not being a party whose rights are
affected by the statute, may not raise said question. The respondent judge cited Cooley on Constitutional
41
Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916],
225 Mass., 59; 113 N. E., 742, 743), as authority for the proposition that a court will not consider any
attack made on the constitutionality of a statute by one who has no interest in defeating it because his
rights are not affected by its operation. The respondent judge further stated that it may not motu proprio
take up the constitutional question and, agreeing with Cooley that "the power to declare a legislative
enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink
from exercising in any case where he can conscientiously and with due regard to duty and official oath
decline the responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the
assumption that Act No. 4221 is constitutional. While therefore, the court a quo admits that the
constitutional question was raised before it, it refused to consider the question solely because it was not
raised by a proper party. Respondents herein reiterates this view. The argument is advanced that the
private prosecution has no personality to appear in the hearing of the application for probation of
defendant Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and
hence the issue of constitutionality was not properly raised in the lower court. Although, as a general rule,
only those who are parties to a suit may question the constitutionality of a statute involved in a judicial
decision, it has been held that since the decree pronounced by a court without jurisdiction is void, where
the jurisdiction of the court depends on the validity of the statute in question, the issue of the
constitutionality will be considered on its being brought to the attention of the court by persons interested
in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that the
issue was not properly raised in the court below by the proper party, it does not follow that the issue may
not be here raised in an original action of certiorari and prohibitions. It is true that, as a general rule, the
question of constitutionality must be raised at the earliest opportunity, so that if not raised by the
pleadings, ordinarily it may not be raised at the trial, and if not raised in the trial court, it will not
considered on appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26
Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the exercise
of sounds discretion, may determine the time when a question affecting the constitutionality of a statute
should be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although there is
a very sharp conflict of authorities, it is said that the question may be raised for the first time at any stage
of the proceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been
held that it is the duty of a court to pass on the constitutional question, though raised for the first time on
appeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe's
Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis
Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo.,
572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an appellate
court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala.,
561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first
time before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong
Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong & Shanghai Banking Corporation,
represented by the private prosecution, is not the proper party to raise the constitutional question here — a
point we do not now have to decide — we are of the opinion that the People of the Philippines,
represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the
present proceedings. The unchallenged rule is that the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that he has sustained, or will sustained, direct
injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the
constitution, the People of the Philippines, in whose name the present action is brought, has a substantial
interest in having it set aside. Of grater import than the damage caused by the illegal expenditure of public
funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute.
Hence, the well-settled rule that the state can challenge the validity of its own laws. In Government of the
Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the
Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature
unconstitutional in an action instituted in behalf of the Government of the Philippines. In Attorney General
vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its
Attorney General, instituted quo warranto proceedings to test the right of the respondents to renew a

mining corporation, alleging that the statute under which the respondents base their right was
unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of
the state to question the constitutionality of the statute was though, as a general rule, only those who are
parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has been
held that since the decree pronounced by a court without jurisdiction in void, where the jurisdiction of the
court depends on the validity of the statute in question, the issue of constitutionality will be considered on
its being brought to the attention of the court by persons interested in the effect to begin the statute. (12
C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was not properly raised in the court
below by the proper party, it does not follow that the issue may not be here raised in an original action of
certiorari and prohibition. It is true that, as a general rule, the question of constitutionality must be raised
at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised a the trial,
and if not raised in the trial court, it will not be considered on appeal. (12 C.J., p. 786. See, also,
Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the
general rule admits of exceptions. Courts, in the exercise of sound discretion, may determine the time
when a question affecting the constitutionality of a statute should be presented. (In re Woolsey [19884], 95
N.Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that
the question may be raised for the first time at any state of the proceedings, either in the trial court or on
appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the
constitutional question, though raised for first time on appeal, if it appears that a determination of the
question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136
Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108;
Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a
constitutional question will be considered by an appellate court at any time, where it involves the
jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this
court to consider the constitutional question raised for the first time before this court in these proceedings,
we turn again and point with emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the
hypothesis that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is
not the proper party to raise the constitutional question here — a point we do not now have to decide —
we are of the opinion that the People of the Philippines, represented by the Solicitor-General and the
Fiscal of the City of Manila, is such a proper party in the present proceedings. The unchallenged rule is
that the person who impugns the validity of a statute must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of its enforcement. It goes without
saying that if Act No. 4221 really violates the Constitution, the People of the Philippines, in whose name
the present action is brought, has a substantial interest in having it set aside. Of greater import than the
damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can
challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50
Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law.
ed., 845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of
the Government of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312; 41
N.W., 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto
proceedings to test the right of the respondents to renew a mining corporation, alleging that the statute
under which the respondents base their right was unconstitutional because it impaired the obligation of
contracts. The capacity of the chief law officer of the state to question the constitutionality of the statute
was itself questioned. Said the Supreme Court of Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped from questioning the validity of a law enacted by
their representatives; that to an accusation by the people of Michigan of usurpation their government, a
statute enacted by the people of Michigan is an adequate answer. The last proposition is true, but, if the
statute relied on in justification is unconstitutional, it is statute only in form, and lacks the force of law,
and is of no more saving effect to justify action under it than if it had never been enacted. The constitution
is the supreme law, and to its behests the courts, the legislature, and the people must bow . . . The
legislature and the respondents are not the only parties in interest upon such constitutional questions. As
42
was remarked by Mr. Justice Story, in speaking of an acquiescence by a party affected by an
unconstitutional act of the legislature: "The people have a deep and vested interest in maintaining all the
constitutional limitations upon the exercise of legislative powers." (Allen vs. Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was brought by
the Attorney-General of Kansas to test the constitutionality of a statute of the state. In disposing of the
question whether or not the state may bring the action, the Supreme Court of Kansas said:
. . . the state is a proper party — indeed, the proper party — to bring this action. The state is always
interested where the integrity of its Constitution or statutes is involved.
"It has an interest in seeing that the will of the Legislature is not disregarded, and need not, as an
individual plaintiff must, show grounds of fearing more specific injury. (State vs. Kansas City 60 Kan.,
518 [57 Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103 Pac., 839.)
Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General, or county
attorney, may exercise his bet judgment as to what sort of action he will bring to have the matter
determined, either by quo warranto to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac.,
1068; 49 L.R.A., 662), by mandamus to compel obedience to its terms (State vs. Dolley, 82 Kan., 533;
108 Pac., 846), or by injunction to restrain proceedings under its questionable provisions (State ex rel. vs.
City of Neodesha, 3 Kan. App., 319; 45 Pac., 122).
Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197 S. W.,
1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La., 597; 160 S., 91;
State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917],
211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins
[1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney, being charged with the duty of
enforcing the laws, has no right to plead that a law is unconstitutional. In support of the argument three
decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La.
Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of New Orleans (41 Ann., 156; 6
So., 592); and State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R.
A., 512). These decisions do not forbid a district attorney to plead that a statute is unconstitutional if he
finds if in conflict with one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs.
Judge, etc., the ruling was the judge should not, merely because he believed a certain statute to be
unconstitutional forbid the district attorney to file a bill of information charging a person with a violation
of the statute. In other words, a judge should not judicially declare a statute unconstitutional until the
question of constitutionality is tendered for decision, and unless it must be decided in order to determine
the right of a party litigant. State ex rel. Nicholls, Governor, etc., is authority for the proposition merely
that an officer on whom a statute imposes the duty of enforcing its provisions cannot avoid the duty upon
the ground that he considers the statute unconstitutional, and hence in enforcing the statute he is immune
from responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is authority for the
proposition merely that executive officers, e.g., the state auditor and state treasurer, should not decline to
perform ministerial duties imposed upon them by a statute, on the ground that they believe the statute is
unconstitutional.
It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to support the
Constitution of the state. If, in the performance of his duty he finds two statutes in conflict with each other,
or one which repeals another, and if, in his judgment, one of the two statutes is unconstitutional, it is his
duty to enforce the other; and, in order to do so, he is compelled to submit to the court, by way of a plea,
that one of the statutes is unconstitutional. If it were not so, the power of the Legislature would be free
from constitutional limitations in the enactment of criminal laws.

The respondents do not seem to doubt seriously the correctness of the general proposition that the state
may impugn the validity of its laws. They have not cited any authority running clearly in the opposite
direction. In fact, they appear to have proceeded on the assumption that the rule as stated is sound but that
it has no application in the present case, nor may it be invoked by the City Fiscal in behalf of the People of
the Philippines, one of the petitioners herein, the principal reasons being that the validity before this court,
that the City Fiscal is estopped from attacking the validity of the Act and, not authorized challenge the
validity of the Act in its application outside said city. (Additional memorandum of respondents, October
23, 1937, pp. 8,. 10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has not
been attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly regarded
by him as constitutional, is no reason for considering the People of the Philippines estopped from nor
assailing its validity. For courts will pass upon a constitutional questions only when presented before it in
bona fide cases for determination, and the fact that the question has not been raised before is not a valid
reason for refusing to allow it to be raised later. The fiscal and all others are justified in relying upon the
statute and treating it as valid until it is held void by the courts in proper cases.
It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary to
the resolution of the instant case. For, ". . . while the court will meet the question with firmness, where its
decision is indispensable, it is the part of wisdom, and just respect for the legislature, renders it proper, to
waive it, if the case in which it arises, can be decided on other points." (Ex parte Randolph [1833], 20 F.
Cas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held
that the determination of a constitutional question is necessary whenever it is essential to the decision of
the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y.
Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse
vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs.
Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is founded solely on
a statute the validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins.
Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the
respondent Cu Unjieng draws his privilege to probation solely from Act No. 4221 now being assailed.
Apart from the foregoing considerations, that court will also take cognizance of the fact that the Probation
Act is a new addition to our statute books and its validity has never before been passed upon by the courts;
that may persons accused and convicted of crime in the City of Manila have applied for probation; that
some of them are already on probation; that more people will likely take advantage of the Probation Act in
the future; and that the respondent Mariano Cu Unjieng has been at large for a period of about four years
since his first conviction. All wait the decision of this court on the constitutional question. Considering,
therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong
reasons of public policy demand that the constitutionality of Act No. 4221 be now resolved. (Yu Cong
Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78;
People vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk
Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs.
Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted
us. We said: "Inasmuch as the property and personal rights of nearly twelve thousand merchants are
affected by these proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the
courts, in the interest of the public welfare and for the advancement of public policy, we have determined
to overrule the defense of want of jurisdiction in order that we may decide the main issue. We have here
an extraordinary situation which calls for a relaxation of the general rule." Our ruling on this point was
sustained by the Supreme Court of the United States. A more binding authority in support of the view we
have taken can not be found.
43
We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been
properly raised. Now for the main inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the Constitution.
This court, by clear implication from the provisions of section 2, subsection 1, and section 10, of Article
VIII of the Constitution, may declare an act of the national legislature invalid because in conflict with the
fundamental lay. It will not shirk from its sworn duty to enforce the Constitution. And, in clear cases, it
will not hesitate to give effect to the supreme law by setting aside a statute in conflict therewith. This is of
the essence of judicial duty.
This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable doubts
should be resolved in favor of the constitutionality of a statute. An act of the legislature approved by the
executive, is presumed to be within constitutional limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the legislature as well. "The question of the validity of
every statute is first determined by the legislative department of the government itself." (U.S. vs. Ten Yu
[1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson
[1913], 26 Phil., 1.) And a statute finally comes before the courts sustained by the sanction of the
executive. The members of the Legislature and the Chief Executive have taken an oath to support the
Constitution and it must be presumed that they have been true to this oath and that in enacting and
sanctioning a particular law they did not intend to violate the Constitution. The courts cannot but
cautiously exercise its power to overturn the solemn declarations of two of the three grand departments of
the governments. (6 R.C.L., p. 101.) Then, there is that peculiar political philosophy which bids the
judiciary to reflect the wisdom of the people as expressed through an elective Legislature and an elective
Chief Executive. It follows, therefore, that the courts will not set aside a law as violative of the
Constitution except in a clear case. This is a proposition too plain to require a citation of authorities.
One of the counsel for respondents, in the course of his impassioned argument, called attention to the fact
that the President of the Philippines had already expressed his opinion against the constitutionality of the
Probation Act, adverting that as to the Executive the resolution of this question was a foregone conclusion.
Counsel, however, reiterated his confidence in the integrity and independence of this court. We take notice
of the fact that the President in his message dated September 1, 1937, recommended to the National
Assembly the immediate repeal of the Probation Act (No. 4221); that this message resulted in the approval
of Bill No. 2417 of the Nationality Assembly repealing the probation Act, subject to certain conditions
therein mentioned; but that said bill was vetoed by the President on September 13, 1937, much against his
wish, "to have stricken out from the statute books of the Commonwealth a law . . . unfair and very likely
unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill referred to, the
President exercised his constitutional prerogative. He may express the reasons which he may deem proper
for taking such a step, but his reasons are not binding upon us in the determination of actual controversies
submitted for our determination. Whether or not the Executive should express or in any manner insinuate
his opinion on a matter encompassed within his broad constitutional power of veto but which happens to
be at the same time pending determination in this court is a question of propriety for him exclusively to
decide or determine. Whatever opinion is expressed by him under these circumstances, however, cannot
sway our judgment on way or another and prevent us from taking what in our opinion is the proper course
of action to take in a given case. It if is ever necessary for us to make any vehement affirmance during this
formative period of our political history, it is that we are independent of the Executive no less than of the
Legislative department of our government — independent in the performance of our functions, undeterred
by any consideration, free from politics, indifferent to popularity, and unafraid of criticism in the
accomplishment of our sworn duty as we see it and as we understand it.
The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act
encroaches upon the pardoning power of the Executive; (2) that its constitutes an undue delegation of
legislative power and (3) that it denies the equal protection of the laws.

1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in force at
the time of the approval of Act No. 4221, otherwise known as the Probation Act, vests in the Governor-
General of the Philippines "the exclusive power to grant pardons and reprieves and remit fines and
forfeitures". This power is now vested in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.)
The provisions of the Jones Law and the Constitution differ in some respects. The adjective "exclusive"
found in the Jones Law has been omitted from the Constitution. Under the Jones Law, as at common law,
pardon could be granted any time after the commission of the offense, either before or after conviction
(Vide Constitution of the United States, Art. II, sec. 2; In re Lontok [1922], 43 Phil., 293). The Governor-
General of the Philippines was thus empowered, like the President of the United States, to pardon a person
before the facts of the case were fully brought to light. The framers of our Constitution thought this
undesirable and, following most of the state constitutions, provided that the pardoning power can only be
exercised "after conviction". So, too, under the new Constitution, the pardoning power does not extend to
"cases of impeachment". This is also the rule generally followed in the United States (Vide Constitution of
the United States, Art. II, sec. 2). The rule in England is different. There, a royal pardon can not be
pleaded in bar of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly
heard and determined, it is not understood that the king's royal grace is further restrained or abridged."
(Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass.,
323; 12 Am. Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the
distinction is obvious. In England, Judgment on impeachment is not confined to mere "removal from
office and disqualification to hold and enjoy any office of honor, trust, or profit under the Government"
(Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole punishment attached by law to
the offense committed. The House of Lords, on a conviction may, by its sentence, inflict capital
punishment, perpetual banishment, perpetual banishment, fine or imprisonment, depending upon the
gravity of the offense committed, together with removal from office and incapacity to hold office. (Com.
vs. Lockwood, supra.) Our Constitution also makes specific mention of "commutation" and of the power
of the executive to impose, in the pardons he may grant, such conditions, restrictions and limitations as he
may deem proper. Amnesty may be granted by the President under the Constitution but only with the
concurrence of the National Assembly. We need not dwell at length on the significance of these
fundamental changes. It is sufficient for our purposes to state that the pardoning power has remained
essentially the same. The question is: Has the pardoning power of the Chief Executive under the Jones
Law been impaired by the Probation Act?
As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The
exercise of the power may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by any
legislative restrictions, nor can like power be given by the legislature to any other officer or authority. The
coordinate departments of government have nothing to do with the pardoning power, since no person
properly belonging to one of the departments can exercise any powers appertaining to either of the others
except in cases expressly provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . . where
the pardoning power is conferred on the executive without express or implied limitations, the grant is
exclusive, and the legislature can neither exercise such power itself nor delegate it elsewhere, nor interfere
with or control the proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases cited.) If Act No. 4221,
then, confers any pardoning power upon the courts it is for that reason unconstitutional and void. But does
it?
In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United States
ruled in 1916 that an order indefinitely suspending sentenced was void. (Ex parte United States [1916],
242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief
Justice White, after an exhaustive review of the authorities, expressed the opinion of the court that under
the common law the power of the court was limited to temporary suspension and that the right to suspend
sentenced absolutely and permanently was vested in the executive branch of the government and not in the
judiciary. But, the right of Congress to establish probation by statute was conceded. Said the court through
its Chief Justice: ". . . and so far as the future is concerned, that is, the causing of the imposition of
44
penalties as fixed to be subject, by probation legislation or such other means as the legislative mind may
devise, to such judicial discretion as may be adequate to enable courts to meet by the exercise of an
enlarged but wise discretion the infinite variations which may be presented to them for judgment, recourse
must be had Congress whose legislative power on the subject is in the very nature of things adequately
complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National
Probation Association and others to agitate for the enactment by Congress of a federal probation law. Such
action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was
followed by an appropriation to defray the salaries and expenses of a certain number of probation officers
chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the Supreme
Court of the United States, through Chief Justice Taft, held that when a person sentenced to imprisonment
by a district court has begun to serve his sentence, that court has no power under the Probation Act of
March 4, 1925 to grant him probation even though the term at which sentence was imposed had not yet
expired. In this case of Murray, the constitutionality of the probation Act was not considered but was
assumed. The court traced the history of the Act and quoted from the report of the Committee on the
Judiciary of the United States House of Representatives (Report No. 1377, 68th Congress, 2 Session) the
following statement:
Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised a form of
probation either, by suspending sentence or by placing the defendants under state probation officers or
volunteers. In this case, however (Ex parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E,
1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme Court denied the right of the district
courts to suspend sentenced. In the same opinion the court pointed out the necessity for action by
Congress if the courts were to exercise probation powers in the future . . .
Since this decision was rendered, two attempts have been made to enact probation legislation. In 1917, a
bill was favorably reported by the Judiciary Committee and passed the House. In 1920, the judiciary
Committee again favorably reported a probation bill to the House, but it was never reached for definite
action.
If this bill is enacted into law, it will bring the policy of the Federal government with reference to its
treatment of those convicted of violations of its criminal laws in harmony with that of the states of the
Union. At the present time every state has a probation law, and in all but twelve states the law applies both
to adult and juvenile offenders. (see, also, Johnson, Probation for Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been sustained by inferior federal courts. In Riggs
vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit said:
Since the passage of the Probation Act of March 4, 1925, the questions under consideration have been
reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of
the act fully sustained, and the same held in no manner to encroach upon the pardoning power of the
President. This case will be found to contain an able and comprehensive review of the law applicable here.
It arose under the act we have to consider, and to it and the authorities cited therein special reference is
made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court of Appeals of the
Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal language,
pointed to Congress as possessing the requisite power to enact probation laws, that a federal probation law
as actually enacted in 1925, and that the constitutionality of the Act has been assumed by the Supreme
Court of the United States in 1928 and consistently sustained by the inferior federal courts in a number of
earlier cases.

We are fully convinced that the Philippine Legislature, like the Congress of the United States, may legally
enact a probation law under its broad power to fix the punishment of any and all penal offenses. This
conclusion is supported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A,
1285; 151 Pac., 698, the court said: "It is clearly within the province of the Legislature to denominate and
define all classes of crime, and to prescribe for each a minimum and maximum punishment." And in State
vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court
said: "The legislative power to set punishment for crime is very broad, and in the exercise of this power
the general assembly may confer on trial judges, if it sees fit, the largest discretion as to the sentence to be
imposed, as to the beginning and end of the punishment and whether it should be certain or indeterminate
or conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine
Legislature has defined all crimes and fixed the penalties for their violation. Invariably, the legislature has
demonstrated the desire to vest in the courts — particularly the trial courts — large discretion in imposing
the penalties which the law prescribes in particular cases. It is believed that justice can best be served by
vesting this power in the courts, they being in a position to best determine the penalties which an
individual convict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain
from imposing a sentence merely because, taking into consideration the degree of malice and the injury
caused by the offense, the penalty provided by law is clearly excessive, the courts being allowed in such
case to submit to the Chief Executive, through the Department of Justice, such statement as it may deem
proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating circumstances are
attendant in the commission of a crime and the law provides for a penalty composed of two indivisible
penalties, the courts may allow such circumstances to offset one another in consideration of their number
and importance, and to apply the penalty according to the result of such compensation. (Art. 63, rule 4,
Revised Penal Code; U.S. vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph
7, of the Revised Penal Code empowers the courts to determine, within the limits of each periods, in case
the penalty prescribed by law contains three periods, the extent of the evil produced by the crime. In the
imposition of fines, the courts are allowed to fix any amount within the limits established by law,
considering not only the mitigating and aggravating circumstances, but more particularly the wealth or
means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the same Code provides
that "a discretionary penalty shall be imposed" upon a person under fifteen but over nine years of age, who
has not acted without discernment, but always lower by two degrees at least than that prescribed by law
for the crime which he has committed. Article 69 of the same Code provides that in case of "incomplete
self-defense", i.e., when the crime committed is not wholly excusable by reason of the lack of some of the
conditions required to justify the same or to exempt from criminal liability in the several cases mentioned
in article 11 and 12 of the Code, "the courts shall impose the penalty in the period which may be deemed
proper, in view of the number and nature of the conditions of exemption present or lacking." And, in case
the commission of what are known as "impossible" crimes, "the court, having in mind the social danger
and the degree of criminality shown by the offender," shall impose upon him either arresto mayor or a fine
ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted form
the entire term of imprisonment, except in certain cases expressly mentioned (art. 29); the death penalty is
not imposed when the guilty person is more than seventy years of age, or where upon appeal or revision of
the case by the Supreme Court, all the members thereof are not unanimous in their voting as to the
propriety of the imposition of the death penalty (art. 47, see also, sec. 133, Revised Administrative Code,
as amended by Commonwealth Act No. 3); the death sentence is not to be inflicted upon a woman within
the three years next following the date of the sentence or while she is pregnant, or upon any person over
seventy years of age (art. 83); and when a convict shall become insane or an imbecile after final sentence
has been pronounced, or while he is serving his sentenced, the execution of said sentence shall be
suspended with regard to the personal penalty during the period of such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the undue harshness of the penal laws is more
clearly demonstrated in various other enactments, including the probation Act. There is the Indeterminate
Sentence Law enacted in 1933 as Act No. 4103 and subsequently amended by Act No. 4225, establishing
45
a system of parole (secs. 5 to 100 and granting the courts large discretion in imposing the penalties of the
law. Section 1 of the law as amended provides; "hereafter, in imposing a prison sentence for an offenses
punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said Code, and to a minimum which shall
be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the
offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence,
the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not
be less than the minimum term prescribed by the same." Certain classes of convicts are, by section 2 of the
law, excluded from the operation thereof. The Legislature has also enacted the Juvenile Delinquency Law
(Act No. 3203) which was subsequently amended by Act No. 3559. Section 7 of the original Act and
section 1 of the amendatory Act have become article 80 of the Revised Penal Code, amended by Act No.
4117 of the Philippine Legislature and recently reamended by Commonwealth Act No. 99 of the National
Assembly. In this Act is again manifested the intention of the legislature to "humanize" the penal laws. It
allows, in effect, the modification in particular cases of the penalties prescribed by law by permitting the
suspension of the execution of the judgment in the discretion of the trial court, after due hearing and after
investigation of the particular circumstances of the offenses, the criminal record, if any, of the convict, and
his social history. The Legislature has in reality decreed that in certain cases no punishment at all shall be
suffered by the convict as long as the conditions of probation are faithfully observed. It this be so, then, it
cannot be said that the Probation Act comes in conflict with the power of the Chief Executive to grant
pardons and reprieves, because, to use the language of the Supreme Court of New Mexico, "the element of
punishment or the penalty for the commission of a wrong, while to be declared by the courts as a judicial
function under and within the limits of law as announced by legislative acts, concerns solely the procedure
and conduct of criminal causes, with which the executive can have nothing to do." (Ex parte Bates, supra.)
In Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality of the
Georgia probation statute against the contention that it attempted to delegate to the courts the pardoning
power lodged by the constitution in the governor alone is vested with the power to pardon after final
sentence has been imposed by the courts, the power of the courts to imposed any penalty which may be
from time to time prescribed by law and in such manner as may be defined cannot be questioned."
We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful for the
legislature to vest in the courts the power to suspend the operation of a sentenced, by probation or
otherwise, as to do so would encroach upon the pardoning power of the executive. (In re Webb [1895], 89
Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel.
Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108;
1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650; People vs. Barrett
[1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex.
Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162; Ex parte Shelor [1910], 33 Nev., 361;111 Pac.,
291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex
rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W.,
571; States vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs. Snook
[1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs.
States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166;
122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114 Cal.
App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917],
69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams vs.
State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise [1913], 257 Ill., 443; 100 N. E., 1000; Parker
vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me.,
522; 64 Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs. Fjolander [1914],
125 Minn., 529; State ex rel. Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs.
Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew

[1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte
Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of
Session [1894], 141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel.
Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y.
Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D.,
38; L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781;
State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N.
S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State
[1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs.
State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548;
165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932],
122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W.
[2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E.,
460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich [1922],
119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long catena of authorities
holding that the courts may be legally authorized by the legislature to suspend sentence by the
establishment of a system of probation however characterized. State ex rel. Tingstand vs. Starwich
([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular mention. In that case, a
statute enacted in 1921 which provided for the suspension of the execution of a sentence until otherwise
ordered by the court, and required that the convicted person be placed under the charge of a parole or
peace officer during the term of such suspension, on such terms as the court may determine, was held
constitutional and as not giving the court a power in violation of the constitutional provision vesting the
pardoning power in the chief executive of the state. (Vide, also, Re Giannini [1912], 18 Cal App., 166;
122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same. They are actually district and different
from each other, both in origin and in nature. In People ex rel. Forsyth vs. Court of Sessions ([1894], 141
N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of
New York said:
. . . The power to suspend sentence and the power to grant reprieves and pardons, as understood when the
constitution was adopted, are totally distinct and different in their nature. The former was always a part of
the judicial power; the latter was always a part of the executive power. The suspension of the sentence
simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability
following it, and the civil disabilities, remain and become operative when judgment is rendered. A pardon
reaches both the punishment prescribed for the offense and the guilt of the offender. It releases the
punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is as innocent as
if he had never committed the offense. It removes the penalties and disabilities, and restores him to all his
civil rights. It makes him, as it were, a new man, and gives him a new credit and capacity. (Ex parte
Garland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed.,
519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)
The framers of the federal and the state constitutions were perfectly familiar with the principles governing
the power to grant pardons, and it was conferred by these instruments upon the executive with full
knowledge of the law upon the subject, and the words of the constitution were used to express the
authority formerly exercised by the English crown, or by its representatives in the colonies. (Ex parte
Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power was understood, it did not comprehend
any part of the judicial functions to suspend sentence, and it was never intended that the authority to grant
reprieves and pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its
own judgments, that criminal courts has so long maintained. The two powers, so distinct and different in
their nature and character, were still left separate and distinct, the one to be exercised by the executive, and
the other by the judicial department. We therefore conclude that a statute which, in terms, authorizes
courts of criminal jurisdiction to suspend sentence in certain cases after conviction, — a power inherent in
46
such courts at common law, which was understood when the constitution was adopted to be an ordinary
judicial function, and which, ever since its adoption, has been exercised of legislative power under the
constitution. It does not encroach, in any just sense, upon the powers of the executive, as they have been
understood and practiced from the earliest times. (Quoted with approval in Directors of Prisons vs. Judge
of First Instance of Cavite [1915], 29 Phil., 265, Carson, J., concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and completely
exonerated. He is not exempt from the entire punishment which the law inflicts. Under the Probation Act,
the probationer's case is not terminated by the mere fact that he is placed on probation. Section 4 of the
Act provides that the probation may be definitely terminated and the probationer finally discharged from
supervision only after the period of probation shall have been terminated and the probation officer shall
have submitted a report, and the court shall have found that the probationer has complied with the
conditions of probation. The probationer, then, during the period of probation, remains in legal custody —
subject to the control of the probation officer and of the court; and, he may be rearrested upon the non-
fulfillment of the conditions of probation and, when rearrested, may be committed to prison to serve the
sentence originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not complete liberty, and may be far from it. It is
really a new mode of punishment, to be applied by the judge in a proper case, in substitution of the
imprisonment and find prescribed by the criminal laws. For this reason its application is as purely a
judicial act as any other sentence carrying out the law deemed applicable to the offense. The executive act
of pardon, on the contrary, is against the criminal law, which binds and directs the judges, or rather is
outside of and above it. There is thus no conflict with the pardoning power, and no possible
unconstitutionality of the Probation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and from commutation of the sentence. Snodgrass
vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied upon most
strongly by the petitioners as authority in support of their contention that the power to grant pardons and
reprieves, having been vested exclusively upon the Chief Executive by the Jones Law, may not be
conferred by the legislature upon the courts by means of probation law authorizing the indefinite judicial
suspension of sentence. We have examined that case and found that although the Court of Criminal
Appeals of Texas held that the probation statute of the state in terms conferred on the district courts the
power to grant pardons to persons convicted of crime, it also distinguished between suspensions sentence
on the one hand, and reprieve and commutation of sentence on the other. Said the court, through Harper,
J.:
That the power to suspend the sentence does not conflict with the power of the Governor to grant reprieves
is settled by the decisions of the various courts; it being held that the distinction between a "reprieve" and
a suspension of sentence is that a reprieve postpones the execution of the sentence to a day certain,
whereas a suspension is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan,
146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be
hold in conflict with the power confiding in the Governor to grant commutations of punishment, for a
commutations is not but to change the punishment assessed to a less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme Court of
Montana had under consideration the validity of the adult probation law of the state enacted in 1913, now
found in sections 12078-12086, Revised Codes of 1921. The court held the law valid as not impinging
upon the pardoning power of the executive. In a unanimous decision penned by Justice Holloway, the
court said:
. . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at the time our
Constitution was adopted, and no one of them was intended to comprehend the suspension of the
execution of the judgment as that phrase is employed in sections 12078-12086. A "pardon" is an act of

grace, proceeding from the power intrusted with the execution of the laws which exempts the individual
on whom it is bestowed from the punishment the law inflicts for a crime he has committed (United States
vs. Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So.,
816), a forgiveness of the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73
Ala., 517; 49 Am. Rep., 71). "Commutation" is a remission of a part of the punishment; a substitution of a
less penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich
vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the withholding of the
sentence for an interval of time (4 Blackstone's Commentaries, 394), a postponement of execution (Carnal
vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary suspension of execution (Butler vs. State, 97 Ind.,
373).
Few adjudicated cases are to be found in which the validity of a statute similar to our section 12078 has
been determined; but the same objections have been urged against parole statutes which vest the power to
parole in persons other than those to whom the power of pardon is granted, and these statutes have been
upheld quite uniformly, as a reference to the numerous cases cited in the notes to Woods vs. State (130
Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The
pardoning power, in respect to those serving their probationary sentences, remains as full and complete as
if the Probation Law had never been enacted. The President may yet pardon the probationer and thus place
it beyond the power of the court to order his rearrest and imprisonment. (Riggs vs. United States [1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the pardoning power of the executive and is not
for that reason void, does section 11 thereof constitute, as contended, an undue delegation of legislative
power?
Under the constitutional system, the powers of government are distributed among three coordinate and
substantially independent organs: the legislative, the executive and the judicial. Each of these departments
of the government derives its authority from the Constitution which, in turn, is the highest expression of
popular will. Each has exclusive cognizance of the matters within its jurisdiction, and is supreme within its
own sphere.
The power to make laws — the legislative power — is vested in a bicameral Legislature by the Jones Law
(sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1, Constitution of the
Philippines). The Philippine Legislature or the National Assembly may not escape its duties and
responsibilities by delegating that power to any other body or authority. Any attempt to abdicate the power
is unconstitutional and void, on the principle that potestas delegata non delegare potest. This principle is
said to have originated with the glossators, was introduced into English law through a misreading of
Bracton, there developed as a principle of agency, was established by Lord Coke in the English public law
in decisions forbidding the delegation of judicial power, and found its way into America as an enlightened
principle of free government. It has since become an accepted corollary of the principle of separation of
powers. (5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is that of Locke, namely:
"The legislative neither must nor can transfer the power of making laws to anybody else, or place it
anywhere but where the people have." (Locke on Civil Government, sec. 142.) Judge Cooley enunciates
the doctrine in the following oft-quoted language: "One of the settled maxims in constitutional law is, that
the power conferred upon the legislature to make laws cannot be delegated by that department to any other
body or authority. Where the sovereign power of the state has located the authority, there it must remain;
and by the constitutional agency alone the laws must be made until the Constitution itself is charged. The
power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve
itself of the responsibilities by choosing other agencies upon which the power shall be devolved, nor can it
substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people
have seen fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed., Vol. I, p. 224.
47
Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the doctrine "on the
ethical principle that such a delegated power constitutes not only a right but a duty to be performed by the
delegate by the instrumentality of his own judgment acting immediately upon the matter of legislation and
not through the intervening mind of another. (U. S. vs. Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It
admits of exceptions. An exceptions sanctioned by immemorial practice permits the central legislative
body to delegate legislative powers to local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39
Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32
Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of
our system of government, that local affairs shall be managed by local authorities, and general affairs by
the central authorities; and hence while the rule is also fundamental that the power to make laws cannot be
delegated, the creation of the municipalities exercising local self government has never been held to trench
upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the
grant of the authority to prescribed local regulations, according to immemorial practice, subject of course
to the interposition of the superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the
same principle, Congress is powered to delegate legislative power to such agencies in the territories of the
United States as it may select. A territory stands in the same relation to Congress as a municipality or city
to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51 L.
ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49 Law.
ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of legislative power to the people at
large. Some authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing
People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616). However, the
question of whether or not a state has ceased to be republican in form because of its adoption of the
initiative and referendum has been held not to be a judicial but a political question (Pacific States Tel. &
Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the
constitutionality of such laws has been looked upon with favor by certain progressive courts, the sting of
the decisions of the more conservative courts has been pretty well drawn. (Opinions of the Justices [1894],
160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379;
1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also,
legislative power may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the
Constitution of the Philippines provides that "The National Assembly may by law authorize the President,
subject to such limitations and restrictions as it may impose, to fix within specified limits, tariff rates,
import or export quotas, and tonnage and wharfage dues." And section 16 of the same article of the
Constitution provides that "In times of war or other national emergency, the National Assembly may by
law authorize the President, for a limited period and subject to such restrictions as it may prescribed, to
promulgate rules and regulations to carry out a declared national policy." It is beyond the scope of this
decision to determine whether or not, in the absence of the foregoing constitutional provisions, the
President could be authorized to exercise the powers thereby vested in him. Upon the other hand, whatever
doubt may have existed has been removed by the Constitution itself.
The case before us does not fall under any of the exceptions hereinabove mentioned.
The challenged section of Act No. 4221 in section 11 which reads as follows:
This Act shall apply only in those provinces in which the respective provincial boards have provided for
the salary of a probation officer at rates not lower than those now provided for provincial fiscals. Said
probation officer shall be appointed by the Secretary of Justice and shall be subject to the direction of the
Probation Office. (Emphasis ours.)
In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to inquire
whether the statute was complete in all its terms and provisions when it left the hands of the legislature so
that nothing was left to the judgment of any other appointee or delegate of the legislature. (6 R. C. L., p.

165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the foregoing rule
when it held an act of the legislature void in so far as it undertook to authorize the Governor-General, in
his discretion, to issue a proclamation fixing the price of rice and to make the sale of it in violation of the
proclamation a crime. (See and cf. Compañia General de Tabacos vs. Board of Public Utility
Commissioners [1916], 34 Phil., 136.) The general rule, however, is limited by another rule that to a
certain extent matters of detail may be left to be filled in by rules and regulations to be adopted or
promulgated by executive officers and administrative boards. (6 R. C. L., pp. 177-179.)
For the purpose of Probation Act, the provincial boards may be regarded as administrative bodies
endowed with power to determine when the Act should take effect in their respective provinces. They are
the agents or delegates of the legislature in this respect. The rules governing delegation of legislative
power to administrative and executive officers are applicable or are at least indicative of the rule which
should be here adopted. An examination of a variety of cases on delegation of power to administrative
bodies will show that the ratio decidendi is at variance but, it can be broadly asserted that the rationale
revolves around the presence or absence of a standard or rule of action — or the sufficiency thereof — in
the statute, to aid the delegate in exercising the granted discretion. In some cases, it is held that the
standard is sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a rule, an
act of the legislature is incomplete and hence invalid if it does not lay down any rule or definite standard
by which the administrative officer or board may be guided in the exercise of the discretionary powers
delegated to it. (See Schecter vs. United States [1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep.,
837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107
A.L.R., 1500 and cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the case at bar,
what rules are to guide the provincial boards in the exercise of their discretionary power to determine
whether or not the Probation Act shall apply in their respective provinces? What standards are fixed by the
Act? We do not find any and none has been pointed to us by the respondents. The probation Act does not,
by the force of any of its provisions, fix and impose upon the provincial boards any standard or guide in
the exercise of their discretionary power. What is granted, if we may use the language of Justice Cardozo
in the recent case of Schecter, supra, is a "roving commission" which enables the provincial boards to
exercise arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on its own
authority extend the benefits of the Probation Act to the provinces but in reality leaves the entire matter for
the various provincial boards to determine. In other words, the provincial boards of the various provinces
are to determine for themselves, whether the Probation Law shall apply to their provinces or not at all. The
applicability and application of the Probation Act are entirely placed in the hands of the provincial boards.
If the provincial board does not wish to have the Act applied in its province, all that it has to do is to
decline to appropriate the needed amount for the salary of a probation officer. The plain language of the
Act is not susceptible of any other interpretation. This, to our minds, is a virtual surrender of legislative
power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its
execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no
valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St.,
77, 88. See also, Sutherland on Statutory Construction, sec 68.) To the same effect are the decision of this
court in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil., 547); Rubi vs.
Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz vs. Youngberg ([1931], 56 Phil., 234). In the
first of these cases, this court sustained the validity of the law conferring upon the Governor-General
authority to adjust provincial and municipal boundaries. In the second case, this court held it lawful for the
legislature to direct non-Christian inhabitants to take up their habitation on unoccupied lands to be
selected by the provincial governor and approved by the provincial board. In the third case, it was held
proper for the legislature to vest in the Governor-General authority to suspend or not, at his discretion, the
prohibition of the importation of the foreign cattle, such prohibition to be raised "if the conditions of the
country make this advisable or if deceased among foreign cattle has ceased to be a menace to the
agriculture and livestock of the lands."
48
It should be observed that in the case at bar we are not concerned with the simple transference of details of
execution or the promulgation by executive or administrative officials of rules and regulations to carry
into effect the provisions of a law. If we were, recurrence to our own decisions would be sufficient. (U. S.
vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119; Alegre vs. Collector of Customs
[1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31
Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be made to the effect as law after it leaves the hands of
the legislature. It is true that laws may be made effective on certain contingencies, as by proclamation of
the executive or the adoption by the people of a particular community (6 R. C. L., 116, 170-172; Cooley,
Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law.
ed., 253), the Supreme Court of the United State ruled that the legislature may delegate a power not
legislative which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins. Co. [1896], 92
Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain facts is such a power which may be
delegated. There is nothing essentially legislative in ascertaining the existence of facts or conditions as the
basis of the taking into effect of a law. That is a mental process common to all branches of the
government. (Dowling vs. Lancashire Ins. Co., supra; In re Village of North Milwaukee [1896], 93 Wis.,
616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark
[1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent tendency,
however, to relax the rule prohibiting delegation of legislative authority on account of the complexity
arising from social and economic forces at work in this modern industrial age (Pfiffner, Public
Administration [1936] ch. XX; Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX,
No. 4, pp. 569-579; Beard, "Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI,
pp. 147, 152), the orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations
finds restatement in Prof. Willoughby's treatise on the Constitution of the United States in the following
language — speaking of declaration of legislative power to administrative agencies: "The principle which
permits the legislature to provide that the administrative agent may determine when the circumstances are
such as require the application of a law is defended upon the ground that at the time this authority is
granted, the rule of public policy, which is the essence of the legislative act, is determined by the
legislature. In other words, the legislature, as it its duty to do, determines that, under given circumstances,
certain executive or administrative action is to be taken, and that, under other circumstances, different of
no action at all is to be taken. What is thus left to the administrative official is not the legislative
determination of what public policy demands, but simply the ascertainment of what the facts of the case
require to be done according to the terms of the law by which he is governed." (Willoughby on the
Constitution of the United States, 2nd ed., Vol. II, p. 1637.) In Miller vs. Mayer, etc., of New York [1883],
109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The efficiency of an Act as a
declaration of legislative will must, of course, come from Congress, but the ascertainment of the
contingency upon which the Act shall take effect may be left to such agencies as it may designate." (See,
also, 12 C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.)
The legislature, then may provide that a contingencies leaving to some other person or body the power to
determine when the specified contingencies has arisen. But, in the case at bar, the legislature has not made
the operation of the Prohibition Act contingent upon specified facts or conditions to be ascertained by the
provincial board. It leaves, as we have already said, the entire operation or non-operation of the law upon
the provincial board. the discretion vested is arbitrary because it is absolute and unlimited. A provincial
board need not investigate conditions or find any fact, or await the happening of any specified
contingency. It is bound by no rule, — limited by no principle of expendiency announced by the
legislature. It may take into consideration certain facts or conditions; and, again, it may not. It may have
any purpose or no purpose at all. It need not give any reason whatsoever for refusing or failing to
appropriate any funds for the salary of a probation officer. This is a matter which rest entirely at its
pleasure. The fact that at some future time — we cannot say when — the provincial boards may
appropriate funds for the salaries of probation officers and thus put the law into operation in the various
provinces will not save the statute. The time of its taking into effect, we reiterate, would yet be based

solely upon the will of the provincial boards and not upon the happening of a certain specified
contingency, or upon the ascertainment of certain facts or conditions by a person or body other than
legislature itself.
The various provincial boards are, in practical effect, endowed with the power of suspending the operation
of the Probation Law in their respective provinces. In some jurisdiction, constitutions provided that laws
may be suspended only by the legislature or by its authority. Thus, section 28, article I of the Constitution
of Texas provides that "No power of suspending laws in this state shall be exercised except by the
legislature"; and section 26, article I of the Constitution of Indiana provides "That the operation of the
laws shall never be suspended, except by authority of the General Assembly." Yet, even provisions of this
sort do not confer absolute power of suspension upon the legislature. While it may be undoubted that the
legislature may suspend a law, or the execution or operation of a law, a law may not be suspended as to
certain individuals only, leaving the law to be enjoyed by others. The suspension must be general, and
cannot be made for individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass.,
396; 6 Am. Dec., 174, 177, 178), it was said:
By the twentieth article of the declaration of rights in the constitution of this commonwealth, it is declared
that the power of suspending the laws, or the execution of the laws, ought never to be exercised but by the
legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature
shall expressly provide for. Many of the articles in that declaration of rights were adopted from the Magna
Charta of England, and from the bill of rights passed in the reign of William and Mary. The bill of rights
contains an enumeration of the oppressive acts of James II, tending to subvert and extirpate the protestant
religion, and the laws and liberties of the kingdom; and the first of them is the assuming and exercising a
power of dispensing with and suspending the laws, and the execution of the laws without consent of
parliament. The first article in the claim or declaration of rights contained in the statute is, that the exercise
of such power, by legal authority without consent of parliament, is illegal. In the tenth section of the same
statute it is further declared and enacted, that "No dispensation by non obstante of or to any statute, or part
thereof, should be allowed; but the same should be held void and of no effect, except a dispensation be
allowed of in such statute." There is an implied reservation of authority in the parliament to exercise the
power here mentioned; because, according to the theory of the English Constitution, "that absolute
despotic power, which must in all governments reside somewhere," is intrusted to the parliament: 1 Bl.
Com., 160.
The principles of our government are widely different in this particular. Here the sovereign and absolute
power resides in the people; and the legislature can only exercise what is delegated to them according to
the constitution. It is obvious that the exercise of the power in question would be equally oppressive to the
subject, and subversive of his right to protection, "according to standing laws," whether exercised by one
man or by a number of men. It cannot be supposed that the people when adopting this general principle
from the English bill of rights and inserting it in our constitution, intended to bestow by implication on the
general court one of the most odious and oppressive prerogatives of the ancient kings of England. It is
manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit of our
constitution and laws, that any one citizen should enjoy privileges and advantages which are denied to all
others under like circumstances; or that ant one should be subject to losses, damages, suits, or actions from
which all others under like circumstances are exempted.
To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to the
owner of domestic animals wounded by it for the damages without proving a knowledge of it vicious
disposition. By a provision of the act, power was given to the board of supervisors to determine whether or
not during the current year their county should be governed by the provisions of the act of which that
section constituted a part. It was held that the legislature could not confer that power. The court observed
that it could no more confer such a power than to authorize the board of supervisors of a county to abolish
in such county the days of grace on commercial paper, or to suspend the statute of limitations. (Slinger vs.
Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was held void for the same reason in State
49
vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulating a road system
contained a provision that "if the county court of any county should be of opinion that the provisions of
the act should not be enforced, they might, in their discretion, suspend the operation of the same for any
specified length of time, and thereupon the act should become inoperative in such county for the period
specified in such order; and thereupon order the roads to be opened and kept in good repair, under the laws
theretofore in force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent
provisions of a former act, and yet it is left to the county court to say which act shall be enforce in their
county. The act does not submit the question to the county court as an original question, to be decided by
that tribunal, whether the act shall commence its operation within the county; but it became by its own
terms a law in every county not excepted by name in the act. It did not, then, require the county court to do
any act in order to give it effect. But being the law in the county, and having by its provisions superseded
and abrogated the inconsistent provisions of previous laws, the county court is . . . empowered, to suspend
this act and revive the repealed provisions of the former act. When the question is before the county court
for that tribunal to determine which law shall be in force, it is urge before us that the power then to be
exercised by the court is strictly legislative power, which under our constitution, cannot be delegated to
that tribunal or to any other body of men in the state. In the present case, the question is not presented in
the abstract; for the county court of Saline county, after the act had been for several months in force in that
county, did by order suspend its operation; and during that suspension the offense was committed which is
the subject of the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)
True, the legislature may enact laws for a particular locality different from those applicable to other
localities and, while recognizing the force of the principle hereinabove expressed, courts in may
jurisdiction have sustained the constitutionality of the submission of option laws to the vote of the people.
(6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in character which should
receive different treatment in different localities placed under different circumstances. "They relate to
subjects which, like the retailing of intoxicating drinks, or the running at large of cattle in the highways,
may be differently regarded in different localities, and they are sustained on what seems to us the
impregnable ground, that the subject, though not embraced within the ordinary powers of municipalities to
make by-laws and ordinances, is nevertheless within the class of public regulations, in respect to which it
is proper that the local judgment should control." (Cooley on Constitutional Limitations, 5th ed., p. 148.)
So that, while we do not deny the right of local self-government and the propriety of leaving matters of
purely local concern in the hands of local authorities or for the people of small communities to pass upon,
we believe that in matters of general of general legislation like that which treats of criminals in general,
and as regards the general subject of probation, discretion may not be vested in a manner so unqualified
and absolute as provided in Act No. 4221. True, the statute does not expressly state that the provincial
boards may suspend the operation of the Probation Act in particular provinces but, considering that, in
being vested with the authority to appropriate or not the necessary funds for the salaries of probation
officers, they thereby are given absolute discretion to determine whether or not the law should take effect
or operate in their respective provinces, the provincial boards are in reality empowered by the legislature
to suspend the operation of the Probation Act in particular provinces, the Act to be held in abeyance until
the provincial boards should decide otherwise by appropriating the necessary funds. The validity of a law
is not tested by what has been done but by what may be done under its provisions. (Walter E. Olsen & Co.
vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted to the legislature not only in the expression of
what may be termed legislative policy but in the elaboration and execution thereof. "Without this power,
legislation would become oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been
said that popular government lives because of the inexhaustible reservoir of power behind it. It is
unquestionable that the mass of powers of government is vested in the representatives of the people and
that these representatives are no further restrained under our system than by the express language of the
instrument imposing the restraint, or by particular provisions which by clear intendment, have that effect.
(Angara vs. Electoral Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off.
Gaz., 1317.) But, it should be borne in mind that a constitution is both a grant and a limitation of power

and one of these time-honored limitations is that, subject to certain exceptions, legislative power shall not
be delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of
legislative authority to the provincial boards and is, for this reason, unconstitutional and void.
3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which prohibits
the denial to any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1. Constitution of the
Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all the tree grand departments of
our government and on the subordinate instrumentalities and subdivision thereof, and on many
constitutional power, like the police power, taxation and eminent domain. The equal protection of laws,
sententiously observes the Supreme Court of the United States, "is a pledge of the protection of equal
laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs.
North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may be
regarded as a denial of the equal protection of the laws in a question not always easily determined. No rule
that will cover every case can be formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540;
22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation discriminating against some and favoring
others in prohibited. But classification on a reasonable basis, and nor made arbitrarily or capriciously, is
permitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. &
S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co.
vs. Natividad [1919], 40 Phil., 136.) The classification, however, to be reasonable must be based on
substantial distinctions which make real differences; it must be germane to the purposes of the law; it must
not be limited to existing conditions only, and must apply equally to each member of the class. (Borgnis
vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489;
State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas Co.[1911],
220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M.
S. R. Co. vs. Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs.
Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs.
Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be said to flow from the unwarranted delegation
of legislative power, although perhaps this is not necessarily the result in every case. Adopting the
example given by one of the counsel for the petitioners in the course of his oral argument, one province
may appropriate the necessary fund to defray the salary of a probation officer, while another province may
refuse or fail to do so. In such a case, the Probation Act would be in operation in the former province but
not in the latter. This means that a person otherwise coming within the purview of the law would be liable
to enjoy the benefits of probation in one province while another person similarly situated in another
province would be denied those same benefits. This is obnoxious discrimination. Contrariwise, it is also
possible for all the provincial boards to appropriate the necessary funds for the salaries of the probation
officers in their respective provinces, in which case no inequality would result for the obvious reason that
probation would be in operation in each and every province by the affirmative action of appropriation by
all the provincial boards. On that hypothesis, every person coming within the purview of the Probation Act
would be entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if no
province, through its provincial board, should appropriate any amount for the salary of the probation
officer — which is the situation now — and, also, if we accept the contention that, for the purpose of the
Probation Act, the City of Manila should be considered as a province and that the municipal board of said
city has not made any appropriation for the salary of the probation officer. These different situations
suggested show, indeed, that while inequality may result in the application of the law and in the
conferment of the benefits therein provided, inequality is not in all cases the necessary result. But
whatever may be the case, it is clear that in section 11 of the Probation Act creates a situation in which
discrimination and inequality are permitted or allowed. There are, to be sure, abundant authorities
50
requiring actual denial of the equal protection of the law before court should assume the task of setting
aside a law vulnerable on that score, but premises and circumstances considered, we are of the opinion
that section 11 of Act No. 4221 permits of the denial of the equal protection of the law and is on that
account bad. We see no difference between a law which permits of such denial. A law may appear to be
fair on its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination, it is
within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23
Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia [1880],
100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing
vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30
Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012;
Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs.
Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words, statutes may
be adjudged unconstitutional because of their effect in operation (General Oil Co. vs. Clain [1907], 209 U.
S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl.,
944; Ann. Cas., 1912D, 22). If the law has the effect of denying the equal protection of the law it is
unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed.,
835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386;
State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of
the Probation Act, not only may said Act be in force in one or several provinces and not be in force in
other provinces, but one province may appropriate for the salary of the probation officer of a given year —
and have probation during that year — and thereafter decline to make further appropriation, and have no
probation is subsequent years. While this situation goes rather to the abuse of discretion which delegation
implies, it is here indicated to show that the Probation Act sanctions a situation which is intolerable in a
government of laws, and to prove how easy it is, under the Act, to make the guaranty of the equality
clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41
Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net
Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States ([1914],
234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the United States affirmed the
decision of this court (18 Phil., 1) by declining to uphold the contention that there was a denial of the
equal protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880
(101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause does not require territorial
uniformity. It should be observed, however, that this case concerns the right to preliminary investigations
in criminal cases originally granted by General Orders No. 58. No question of legislative authority was
involved and the alleged denial of the equal protection of the laws was the result of the subsequent
enactment of Act No. 612, amending the charter of the City of Manila (Act No. 813) and providing in
section 2 thereof that "in cases triable only in the court of first instance of the City of Manila, the
defendant . . . shall not be entitled as of right to a preliminary examination in any case where the
prosecuting attorney, after a due investigation of the facts . . . shall have presented an information against
him in proper form . . . ." Upon the other hand, an analysis of the arguments and the decision indicates that
the investigation by the prosecuting attorney — although not in the form had in the provinces — was
considered a reasonable substitute for the City of Manila, considering the peculiar conditions of the city as
found and taken into account by the legislature itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a situation
where the constitution of Missouri permits appeals to the Supreme Court of the state from final judgments
of any circuit court, except those in certain counties for which counties the constitution establishes a
separate court of appeals called St. Louis Court of Appeals. The provision complained of, then, is found in
the constitution itself and it is the constitution that makes the apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is also
repugnant to equal-protection clause of our Constitution.

Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the next
inquiry is whether or not the entire Act should be avoided.
In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will
resort to elimination only where an unconstitutional provision is interjected into a statute otherwise valid,
and is so independent and separable that its removal will leave the constitutional features and purposes of
the act substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A.,
485; 55 Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287,
309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court
stated the well-established rule concerning partial invalidity of statutes in the following language:
. . . where part of the a statute is void, as repugnant to the Organic Law, while another part is valid, the
valid portion, if separable from the valid, may stand and be enforced. But in order to do this, the valid
portion must be in so far independent of the invalid portion that it is fair to presume that the Legislative
would have enacted it by itself if they had supposed that they could not constitutionally enact the other.
(Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes
Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to make a
complete, intelligible, and valid statute, which carries out the legislative intent. (Pearson vs. Bass. 132 Ga.,
117; 63 S. E., 798.) The void provisions must be eliminated without causing results affecting the main
purpose of the Act, in a manner contrary to the intention of the Legislature. (State vs. A. C. L. R., Co., 56
Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794;
Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88 N.
E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language used in
the invalid part of a statute can have no legal force or efficacy for any purpose whatever, and what remains
must express the legislative will, independently of the void part, since the court has no power to legislate.
(State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez
[1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed.,
1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)
It is contended that even if section 11, which makes the Probation Act applicable only in those provinces
in which the respective provincial boards provided for the salaries of probation officers were inoperative
on constitutional grounds, the remainder of the Act would still be valid and may be enforced. We should
be inclined to accept the suggestions but for the fact that said section is, in our opinion, is inseparably
linked with the other portions of the Act that with the elimination of the section what would be left is the
bare idealism of the system, devoid of any practical benefit to a large number of people who may be
deserving of the intended beneficial result of that system. The clear policy of the law, as may be gleaned
from a careful examination of the whole context, is to make the application of the system dependent
entirely upon the affirmative action of the different provincial boards through appropriation of the salaries
for probation officers at rates not lower than those provided for provincial fiscals. Without such action on
the part of the various boards, no probation officers would be appointed by the Secretary of Justice to act
in the provinces. The Philippines is divided or subdivided into provinces and it needs no argument to show
that if not one of the provinces — and this is the actual situation now — appropriate the necessary fund for
the salary of a probation officer, probation under Act No. 4221 would be illusory. There can be no
probation without a probation officer. Neither can there be a probation officer without the probation
system.
Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer. Every
probation officer is given, as to the person placed in probation under his care, the powers of the police
officer. It is the duty of the probation officer to see that the conditions which are imposed by the court
upon the probationer under his care are complied with. Among those conditions, the following are
enumerated in section 3 of the Act:
That the probationer (a) shall indulge in no injurious or vicious habits;
51
(b) Shall avoid places or persons of disreputable or harmful character;
(c) Shall report to the probation officer as directed by the court or probation officers;
(d) Shall permit the probation officer to visit him at reasonable times at his place of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer concerning his
conduct or condition; "(f) Shall endeavor to be employed regularly; "(g) Shall remain or reside within a
specified place or locality;
(f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses caused by his
offense;
(g) Shall comply with such orders as the court may from time to time make; and
(h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation, promulgated in
accordance with law.
The court is required to notify the probation officer in writing of the period and terms of probation. Under
section 4, it is only after the period of probation, the submission of a report of the probation officer and
appropriate finding of the court that the probationer has complied with the conditions of probation that
probation may be definitely terminated and the probationer finally discharged from supervision. Under
section 5, if the court finds that there is non-compliance with said conditions, as reported by the probation
officer, it may issue a warrant for the arrest of the probationer and said probationer may be committed
with or without bail. Upon arraignment and after an opportunity to be heard, the court may revoke,
continue or modify the probation, and if revoked, the court shall order the execution of the sentence
originally imposed. Section 6 prescribes the duties of probation officers: "It shall be the duty of every
probation officer to furnish to all persons placed on probation under his supervision a statement of the
period and conditions of their probation, and to instruct them concerning the same; to keep informed
concerning their conduct and condition; to aid and encourage them by friendly advice and admonition, and
by such other measures, not inconsistent with the conditions imposed by court as may seem most suitable,
to bring about improvement in their conduct and condition; to report in writing to the court having
jurisdiction over said probationers at least once every two months concerning their conduct and condition;
to keep records of their work; make such report as are necessary for the information of the Secretary of
Justice and as the latter may require; and to perform such other duties as are consistent with the functions
of the probation officer and as the court or judge may direct. The probation officers provided for in this
Act may act as parole officers for any penal or reformatory institution for adults when so requested by the
authorities thereof, and, when designated by the Secretary of Justice shall act as parole officer of persons
released on parole under Act Number Forty-one Hundred and Three, without additional compensation."
It is argued, however, that even without section 11 probation officers maybe appointed in the provinces
under section 10 of Act which provides as follows:
There is hereby created in the Department of Justice and subject to its supervision and control, a Probation
Office under the direction of a Chief Probation Officer to be appointed by the Governor-General with the
advise and consent of the Senate who shall receive a salary of four eight hundred pesos per annum. To
carry out this Act there is hereby appropriated out of any funds in the Insular Treasury not otherwise
appropriated, the sum of fifty thousand pesos to be disbursed by the Secretary of Justice, who is hereby
authorized to appoint probation officers and the administrative personnel of the probation officer under
civil service regulations from among those who possess the qualifications, training and experience
prescribed by the Bureau of Civil Service, and shall fix the compensation of such probation officers and
administrative personnel until such positions shall have been included in the Appropriation Act.

But the probation officers and the administrative personnel referred to in the foregoing section are clearly
not those probation officers required to be appointed for the provinces under section 11. It may be said,
reddendo singula singulis, that the probation officers referred to in section 10 above-quoted are to act as
such, not in the various provinces, but in the central office known as the Probation Office established in
the Department of Justice, under the supervision of the Chief Probation Officer. When the law provides
that "the probation officer" shall investigate and make reports to the court (secs. 1 and 4); that "the
probation officer" shall supervise and visit the probationer (sec. 2; sec. 6, par. d); that the probationer shall
report to the "probationer officer" (sec. 3, par. c.), shall allow "the probationer officer" to visit him (sec. 3,
par. d), shall truthfully answer any reasonable inquiries on the part of "the probation officer" concerning
his conduct or condition (sec. 3, par. 4); that the court shall notify "the probation officer" in writing of the
period and terms of probation (sec. 3, last par.), it means the probation officer who is in charge of a
particular probationer in a particular province. It never could have been intention of the legislature, for
instance, to require the probationer in Batanes, to report to a probationer officer in the City of Manila, or
to require a probation officer in Manila to visit the probationer in the said province of Batanes, to place
him under his care, to supervise his conduct, to instruct him concerning the conditions of his probation or
to perform such other functions as are assigned to him by law.
That under section 10 the Secretary of Justice may appoint as many probation officers as there are
provinces or groups of provinces is, of course possible. But this would be arguing on what the law may be
or should be and not on what the law is. Between is and ought there is a far cry. The wisdom and propriety
of legislation is not for us to pass upon. We may think a law better otherwise than it is. But much as has
been said regarding progressive interpretation and judicial legislation we decline to amend the law. We are
not permitted to read into the law matters and provisions which are not there. Not for any purpose — not
even to save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law is not to make the Insular Government
defray the salaries of probation officers in the provinces but to make the provinces defray them should
they desire to have the Probation Act apply thereto. The sum of P50,000, appropriated "to carry out the
purposes of this Act", is to be applied, among other things, for the salaries of probation officers in the
central office at Manila. These probation officers are to receive such compensations as the Secretary of
Justice may fix "until such positions shall have been included in the Appropriation Act". It was the
intention of the legislature to empower the Secretary of Justice to fix the salaries of the probation officers
in the provinces or later on to include said salaries in an appropriation act. Considering, further, that the
sum of P50,000 appropriated in section 10 is to cover, among other things, the salaries of the
administrative personnel of the Probation Office, what would be left of the amount can hardly be said to
be sufficient to pay even nominal salaries to probation officers in the provinces. We take judicial notice of
the fact that there are 48 provinces in the Philippines and we do not think it is seriously contended that,
with the fifty thousand pesos appropriated for the central office, there can be in each province, as intended,
a probation officer with a salary not lower than that of a provincial fiscal. If this a correct, the contention
that without section 11 of Act No. 4221 said act is complete is an impracticable thing under the remainder
of the Act, unless it is conceded that in our case there can be a system of probation in the provinces
without probation officers.
Probation as a development of a modern penology is a commendable system. Probation laws have been
enacted, here and in other countries, to permit what modern criminologist call the "individualization of the
punishment", the adjustment of the penalty to the character of the criminal and the circumstances of his
particular case. It provides a period of grace in order to aid in the rehabilitation of a penitent offender. It is
believed that, in any cases, convicts may be reformed and their development into hardened criminals
aborted. It, therefore, takes advantage of an opportunity for reformation and avoids imprisonment so long
as the convicts gives promise of reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358; 72
Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of
society is its chief end and aim. The benefit to the individual convict is merely incidental. But while we
52
believe that probation is commendable as a system and its implantation into the Philippines should be
welcomed, we are forced by our inescapable duty to set the law aside because of the repugnancy to our
fundamental law.
In arriving at this conclusion, we have endeavored to consider the different aspects presented by able
counsel for both parties, as well in their memorandums as in their oral argument. We have examined the
cases brought to our attention, and others we have been able to reach in the short time at our command for
the study and deliberation of this case. In the examination of the cases and in then analysis of the legal
principles involved we have inclined to adopt the line of action which in our opinion, is supported better
reasoned authorities and is more conducive to the general welfare. (Smith, Bell & Co. vs. Natividad
[1919], 40 Phil., 136.) Realizing the conflict of authorities, we have declined to be bound by certain
adjudicated cases brought to our attention, except where the point or principle is settled directly or by clear
implication by the more authoritative pronouncements of the Supreme Court of the United States. This
line of approach is justified because:
(a) The constitutional relations between the Federal and the State governments of the United States and the
dual character of the American Government is a situation which does not obtain in the Philippines;
(b) The situation of s state of the American Union of the District of Columbia with reference to the
Federal Government of the United States is not the situation of the province with respect to the Insular
Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution of the United States; Sims vs. Rives,
84 Fed. [2d], 871),
(c) The distinct federal and the state judicial organizations of the United States do not embrace the
integrated judicial system of the Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317);
(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New York [1904],
198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new developments of times and
circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1,
9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles
should be interpreted having in view existing local conditions and environment.
Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly,
granted. Without any pronouncement regarding costs. So ordered.
Referandum vs Plebicite
Referendum is a process by which a government refers any issue of public importance including a
constitutional amendment and right to self determination to the people for the approval by popular
vote, the outcome of referendum is legally binding under the law of the country,state otherwise.
Almost all the countries of European Union, Switzerland,Thailand,Japan,Columbia etc have certain
provisions to hold the referendum.
Advantages
It is regarded as the purest form of government. It extends the platform for the voters to directly
express their voices on important national issues. It is one of the most effective form of empowering
citizens vis a vis government.
It helps to resolve the most difficult issue ami cable.
It controls legitimatcy to the decision taken by the people.
Disadvantages

Limitation in terms of complexity of the questions that may be placed before the people for
approval. Every issue cannot be refuced to simple Yes or No.
The citizens may not be able to place national interest above their personal interest while voting in
the referendum. Thus the outcome may not be rational in a referendum and in the national interest.
The outcome of referendum tends to support the majoritarian viewpoint and thus may ignore the
interest of minorities. It is especially considered to be unsuitable to a diverse country like India.
Voters may decide a issue with relatively little information and may heavily rely on political
messenging communicated by powerful political leaders. Thus the outcome of referendum need not
reflect the collective opinion of people and may reflect the individual opinion of political alliance.
The legitimacy of a referendum is virtually lost if the margin of approval or disapproval of voters is
very narrow. In such cases instead of resolving an issue,it may complicate an existing issue.
Plebiscite is a kind of referendum held by the government on the strength of the right to self
determination enjoyed by the section of people. Plebiscite can be held on only one issue namely
Right to self determination. The outcome of Plebiscite may or may not be legally binding on the
government. Since it has the potential to disturb the territorial integrity of a country,
Delegation to Administrative bodies
Conference of maritime manning agencies inc vs POEA
Petitioner Conference of Maritime Manning Agencies, Inc., an incorporated association of licensed
Filipino manning agencies, and its co-petitioners, all licensed manning agencies which hire and recruit
Filipino seamen for and in behalf of their respective foreign shipowner-principals, urge us to annul
Resolution No. 01, series of 1994, of the Governing Board" of the Philippine Overseas Employment
Administration (POEA) and POEA Memorandum Circular No. 05, series of 1994, on the grounds that:
(1) The POEA does not have the power and authority to fix and promulgate rates affecting death
and workmen's compensation of Filipino seamen working in ocean-going vessels; only Congress can.
(2) Even granting that the POEA has that power, it, nevertheless, violated the standards for its
exercise.
(3) The resolution and the memorandum circular are unconstitutional because they violate the
equal protection and non-impairment of obligation of contracts clauses of the Constitution.
(4) The resolution and the memorandum circular are not, valid acts of the Governing Board
because the private sector representative mandated by law has not been appointed by the President since
the creation of the POEA.
Governing Board Resolution No. 01, issued on 14 January 1994,1 read as follows:
GOVERNING RESOLUTION NO. 01 SERIES OF 1994.
WHEREAS, it is the policy of the Administration to afford protection to Filipino overseas contract
workers, including seafarers and their families, promote their interest and safeguard their welfare;
WHEREAS, the Administration under its mandate has the power and function to secure the best terms and
conditions of employment of Filipino contract workers land ensure compliance therewith;
WHEREAS, the minimum compensation and other benefits in cases of death, disability and loss or
damage to crew's effects provided under the POEA Standard Employment Contract for seafarers which
was revised in 1989 are now becoming very much lesser than the prevailing international standards and
those given to unionized seafarers as provided by their collective bargaining agreements;
53
WHEREAS, the Tripartite Technical Working Group convened for the purpose of deliberating the
compensation and benefits provided under the POEA Standard Employment Contract for seafarers has
recommended for the upgrading of the said compensation and benefits;
WHEREAS, for the interest of Filipino seafarers and their families, there is an urgent need to improve and
realign the minimum compensation and other benefits provided under the POEA Standard Employment
Contract for seafarers in order to keep them at par with prevailing international standards and those
provided under collective bargaining agreements.
NOW, THEREFORE, the POEA Governing Board, in a meeting duly convened, hereby resolves to amend
and increase the compensation and other benefits as specified under Part II, Section. C, paragraph 1 and
Section L, paragraphs 1 and 2 of the POEA Standard Employment Contract for Seafarers which shall
henceforth read as follows:
I. Section C. COMPENSATION AND BENEFITS
1. In case of death of the seaman during the term of his Contract, the employer shall pay his
beneficiaries the Philippine Currency equivalent to the amount of US$50,000 and an additional amount of
US$7,000 to each child under the age of twenty-one (21) but not exceeding four children at the exchange
rate prevailing during the time of payment.
Where the death is caused by warlike activity while sailing within a declared warzone or war risk area, the
compensation payable shall be doubled. The employer shall undertake appropriate warzone insurance
coverage for this purpose.
xxx xxx xxx
III. The maximum rate provided under Appendix I-A shall likewise be adjusted to US$50,000
regardless of rank and position of the seafarer.
IV. Upon effectivity, the new compensation and other benefits herein provided shall apply to any
Filipino seafarer on board any vessel, provided, that the cause of action occurs after this Resolation takes
effect.
V. This Resolution shall take effect after sixty (60) days from publication in a newspaper of
general circulation.
Memorandum Circular No. 05, issued on 19 January 19942 by POEA Administrator Felicisimo Joson and
addressed to all Filipino seafarers, manning agencies, shipownersl managers and principals hiring Filipino
seafarers, informed them .that Governing Board Resolution No. 01 adjusted the rates of compensation and
other benefits in Part II, Section C. paragraph 1; Section L, paragraphs 1 and 2; and Appendix 1-A of the
POEA Standard Employment Contracts for Seafarers, which adjustments took effect on 20 March 1994,
and that:
VI. Upon effectivity, the new compensation and other benefits shall apply to any Filipino seafarer
already on-board any vessel provided, that the case of action occurs after the said compensation and
benefits take effect;
The Tripartite Technical Working Group mentioned in the Resolution, which convened on 7 January
1994, was composed of the following:
1. DA Crescencio M. Siddayao, POEA
2. Dir. Angeles T. Wong, POEA
 54

3. Dir. Jaime P. Jimenez; POEA

4. Dir. Lorna O. Fajardo, POEA Similar authorization had been granted the National Seamen Board, which, as earlier observed, had itself
5. OIC Salome Mendoza, POEA prescribed a standard shipping contract substantially the same as the format adopted by the POEA.
6. Capt. Gregorio Oca, AMOSUP
7. Atty, Romeo Occena, PSU-ALUI-TUCP The second challenge is more serious as it is true that legislative discretion as to the substantive contents
8. Mr. Vicente Aldanese, FAME of the law cannot be delegated. What can be delegated is the discretion to determine how the law may
9. Capt. Emmanuel L. Regio, PAMSS been forced, not what the law shall be. The ascertainment of the latter subject is a prerogative of the
10. Atty. Rexlito Bermudez, COMMA legislature. This prerogative cannot be abdicated or surrendered by the legislature to the delegate. . . .
11. Atty. Alexandro W. Cruje, POEA
12 Hr. Jay Rosauro Baluyot, POEA ...
13. Ms. Magdalena Sarcos, POEA
14. Atty. Augusto Arreza, FSA3 The principle, of non-delegation of powers is applicable to all the three major powers of the Government
but is especially important in the case of the legislative power because of the many instances when
In their, comment. the public respondents contend that the petition is without merit and should de delegation is permitted. The occasions are rare when executive or judicial powers have to be delegated by
dismissed because (a) the issuance of the challenged resolution and memorandum circular was a valid the authorities to which they legally pertain. In the case of legislative power, however, such occasions
exercise of the POEA's rule-making authority or power of subordinate legislation which this Court had have become more and more frequent, if not necessary. This had led to the observation that the delegation
sustained in Eastern Shipping Lines, Inc. vs. POEA;4 (b) the "non-appointment" of the third member of of legislative power has become the rule and its non-delegation the exception.
the Governing Board bees not necessarily invalidate the acts of the Board, for it has been functioning
"under the advisement of t the Tripartite Technical Working Group which group is incidentally constituted The reason is the increasing complexity of the task of government and the growing inability of the
by the private sector, i.e., seafarer employers and/or associations of manning agencies including herein legislature to cope directly with the myriad problems demanding its attention. The growth of society has
petitioner," for which reason "the third member complement . . . has been substantially represented by said ramified its activities and created peculiar and sophisticated problems that the legislature cannot be
technical working group";5 and(d) the consensus on the increase in the rates of compensation and other expected reasonably to comprehend. Specialization even in legislation has become necessary. To many of
benefits was arrived at after appropriate consultations with the shipowners and the private sector; the the problems attendant upon present-day undertakings, the legislature may not have the competence to
Board therefore soundly exercised its discretion. provide the required direct and efficacious not to say, specific solutions. These solutions may, however, be
expected from its delegates, who are supposed to be experts in the particular fields assigned to them.
In view of the importance of the issues raised, we gave due course to the petition and required the parties
to submit their respective memoranda. The petitioners while the public respondents opted to adopt their The reasons given above for the delegation of legislative powers in general are particularly applicable to
comment as their memorandum. administrative bodies. With the proliferation of specialized activities and their attendant peculiar
problems, the national legislature has found it more and more necessary to entrust to administrative
The constitutional challenge of the rule-making power of the POEA-based on impermissible delegation of agencies the authority to issue rules to carry out the general provisions of the statute. This is called the
legislative power had been, as correctly contented by the public respondents, brushed aside by this Court "power of subordinate legislation."
in Eastern Shipping Lines, Inc. vs. POEA.6 The petitioner in that , case assailed the constitutionality of
Memorandum Circular No. 02 of the POEA (effective February 1984) which prescribed a standard With this power, administrative bodies may implement the broad policies laid down in a statute by "filling
contract to be adopted by both foreign and domestic shipping companies in the hiring of Filipino seamen in" the details which the Congress may not have the opportunity or competence to provide. This is effected
for overseas. The challenged resolution and memorandum overseas employment circular here merely by their promulgation of what are known as supplementary regulations, such as the implementing rules
further amended Memorandum Circular No. 02, which was earlier amended in 1989 per Memorandum issued by the Department of Labor on the new Labor Code. These regulations have the force and effect of
Circular No. 41, 7 series of 1989. law.

In sustaining the rule-making authority of the POEA and in holding against the claimed infirmity of
delegation of legislative power, Eastern first considered the history of the charter of the POEA and then
discussed separately the above constitutional issues thus:
[T]he petitioner questions the validity of Memorandum Circular No. 2 itself as violative of the principle of
non-delegation of legislative power. It contends that no authority had been given the POEA to promulgate
the said regulation; and even with such authorization, the regulation represents an exercise of legislative
discretion which, under the principle, is not subject to delegation.
The authority to issue the said regulation is clearly provided in Section 4(a) of Executive Order No. 797,
reading as follows:
. . . The governing Board of the Administration (POEA), as hereunder provided, shall promulgate the
necessary rules and regulations to govern the exercise of the adjudicatory functions of the Administration
(POEA).
...
Memorandum Circular No. 2 is one such administrative regulation. The podel contract prescribed thereby
has been applied in a significant number of the cases without challenge by the employer. The power of the
POEA, (and before it the National Seamen Board) in requiring the model contract is not unlimited as there
is a sufficient standard guiding the delegate in the exercise of the said authority. That standard is
discoverable in the executive order itself which, in creating the Philippine Overseas Employment
Administration, mandated it to protect the rights of overseas Filipino workers to "fair and equitable
employment practices.8
The POEA mandate referred to as providing the reasonable standard for the exercise of the POEA's rule-
making authority is found in the statement of powers and functions of the said office in paragraph (a),
Section 4 of E.O. 797, to wit:

(a) The Administration shall formulate and undertake in coordination where necessary with the
appropriate entities concerned, a systematic program for promoting and monitoring the overseas
employment of Filipino workers taking into consideration domestic manpower requirements, and to
protect their rights to fair and equitable employment practices. It shall have original and exclusive
jurisdiction over all cases, including money claims, involving employer-employee relations arising out of
or by virtue of any law or contract involving Filipino workers for overseas employment, including
seamen. This adjudicatory function shall be, undertaken in appropriate circumstances in consultation with
the Construction Industry Authority of the Philippines. The governing Board of the Administration, as
hereinunder provided, shall promulgate the necessary rules and regulations to govern the exercise of the
adjudicatory functions of the Administration.
It is, of course, well established in our jurisdiction that, while the making of laws is a non-delegable power
that pertains exclusively to Congress, nevertheless, the latter may constitutionally delegate the authority to
promulgate rules and regulations to implement a given legislation and effectuate its policies, for the reason
that the legislature finds it impracticable, if not impossible, to anticipate situations that may be met in
carrying the law into effect. All that is required is that the regulation should be germane to the objects and
purposes of the law; that the regulation be not in contradiction to but in conformity with the standards
prescribed by the law.9 This is the principle of subordinate legislation which was discussed by this Court
in People vs. Rosenthal 10 and in Pangasinan Transportation vs. Public Service Commission.11 Thus in
Calalang vs. Williams, 12 this Court stated:
In the case of People vs. Rosenthal and Osmeña, G.R. Nos. 46076 and 46077, promulgated June 12, 1939,
and in Pangasinan Transportation vs. The Public Service Commission, G.R. No. 47065, promulgated June
26, 1940, this Court had occasion to observe that the principle of separation of powers has been made to
adapt itself to the complexities of modern governments, giving rise to the adoption, within certain limits,
of the principle of "subordinate legislation" not only in the United States and England but in practically all
modern governments. Accordingly, with the growing complexity of modern life, the multiplication of the
subjects of governmental regulations, and the increased difficulty of administering the laws, the rigidity of
the theory of separation of governmental powers has, to a large extent, been relaxed by permitting the
delegation of greater powers by the legislative and vesting a larger amount of discretion in administrative
and executive officials, not only in the execution of the laws, but also in the promulgation of certain rules
and regulations calculated to promote public interest.
That the challenged resolution and memorandum circular, which merely further amended the previous
Memorandum Circular No. 02, strictly conform to the sufficient and valid standard of "fair and equitable
employment practices" prescribed in E.O. No. 797 can no longer be disputed. 13
There is, as well, no merit to the claim that the assailed resolution and memorandum circular violate the
equal protection and contract clauses of the Constitution. To support its contention of in equality, the
petitioners claim discrimination against foreign shipowners and principals employing Filipino seamen and
in favor of foreign employers employing overseas Filipinos who are not seamen. It is an established
principle of constitutional law that the guaranty of equal protection of the laws is not violated by
legislation based on reasonable classification. And for the classification to be reasonable, it (1) must rest
on substantial distinctions; (2) must be germane to the purpose of the law; (3) must not be limited to
existing conditions only; and (4) must apply equally to all members of the same class. 14 There can be no
dispute about the dissimilarities between land-based and sea-based Filipino overseas workers in terms of,
among other things, work environment, safety, dangers and risks to life and limb, and accessibility to
social, civic, and spiritual activities.
Nor is there-merit; in the claim that the resolution and memorandum circular violate the contract clause of
the Bill of Rights.
55
The executive order creating the POEA was enacted to further implement the social justice provisions of
the 1973. Constitution, which have been greatly enhanced and expanded in the 1987 Constitution by
placing them under a separate Article. 15 The Article on Social Justice was aptly described as the "heart of
the new Charter" by the President of the 1986 Constitution Commission, retired Justice-Cecilia Muñoz-
Palma. 16 Social justice is identified with the broad scope of the police power of the state and requires the
extensive use of such power. 17 In Calalang vs. Williams, 18 this. Court, speaking through Justice Jose P.
Laurel, expounded on social justice thus:
Social justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the Humanization of
laws and the equalization of social and economic forces by the State so that justice in its rational and
objectively secular conception may at least be approximated. Social justice means the promotion of the
welfare of all the people, the adoption by the Government of measures calculated to insure economic
stability of all the competent elements of society, through the maintenance of a proper economic and
social equilibrium in the interrelations of the members of the community, constitutionally, through the
adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers
underlying the existence of all governments on the time-honored principle of salus populi est suprema lex.
Social justice, therefore, must be founded on the recognition of the necessity of interdependence among
divers and diverse units of a society and of the protection that should be equally and evenly extended to all
groups as a combined force in our social and economic life, consistent with the fundamental and
paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing
about "the greatest good to the greatest number."
The constitutional prohibition against impairing contractual obligations is not absolute and is not to be
read with literal exactness . It is restricted to contracts with respect to property or some object of value and
which confer rights that maybe asserted in a court of justice; it has no application to statutes relating to
public subjects within the domain of the general legislative powers of the State and involving the public
rights and public welfare of the entire community affected by it. It does not prevent a proper exercise by
the State of its police power by enacting regulations reasonably necessary to secure the health, safety,
morals; comfort, or general welfare of the community, even though contracts may thereby be affected, for
such matters cannot be placed by contract beyond the power of the State to regulate and control them. 19
Verily, the freedom to contract is not absolute; all contracts and all rights are subject to the police power
of the State and not only may regulations which affect them be established by the State, but all such
regulations must be subject to change from time to time, as the general, well-being of the community may
require, or as the circumstances may change, or as experience may demonstrate the necessity. 20 And
under the Civil Code, contracts of labor are explicitly subject to the police power of the State because they
are not ordinary contracts but are impresses with public interest. Article 1700 thereof expressly provides:
Art. 1700. The relations between capital and labor are not merely contractual. They are so impressed with
public interest that labor contracts lust yield to the common good. Therefore, such contracts are subject to
the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working
conditions, hours of labor and similar subjects.
The challenged resolution and memorandum circular being valid implementations of E.O. No. 797, which
was enacted under the police power of the State, they cannot be struck down on the ground that they
violate the contract clause. To hold otherwise is to alter long-established constitutional doctrine and to
subordinate the police power to the contract clause.
The last issue concerns the contention that without the appointment by the President of the third member
of the governing board, the POEA cannot legally function and exercise its powers. This contention merits
scant consideration. Section 4 of E.O. No. 797 indubitably declares the immediate creation of the POEA.
Thus upon the effectivity of E.O. No. 797, the POEA attained its juridical personality. The appointment of

the third member "who shall be well versed, in the field of overseas employment," provided for in
paragraph (b) of the said Section, was not meant to be a sine gua non to the birth of the POEA, much less
to the validity of the acts of the Board. As a matter of fact, in the same paragraph the President is given the
"discretion [to] designate a Deputy Administrator as the third member of the Board."
WHEREFORE, for lack of merit, the instant petition is DISMISSED with costs against the petitioners.
SO ORDERED.
KILUSANG MAYO UNO LABOR CENTER VS GARCIA
Public utilities are privately owned and operated businesses whose service are essential to the general
public. They are enterprises which specially cater to the needs of the public and conduce to their comfort
and convenience. As such, public utility services are impressed with public interest and concern. The same
is true with respect to the business of common carrier which holds such a peculiar relation to the public
interest that there is superinduced upon it the right of public regulation when private properties are
affected with public interest, hence, they cease to be juris privati only. When, therefore, one devotes his
property to a use in which the public has an interest, he, in effect grants to the public an interest in that
use, and must submit to the control by the public for the common good, to the extent of the interest he has
thus created.1
An abdication of the licensing and regulatory government agencies of their functions as the instant petition
seeks to show, is indeed lamentable. Not only is it an unsound administrative policy but it is inimical to
public trust and public interest as well.
The instant petition for certiorari assails the constitutionality and validity of certain memoranda, circulars
and/or orders of the Department of Transportation and Communications (DOTC) and the Land
Transportation Franchising and Regulatory Board LTFRB)2 which, among others, (a) authorize provincial
bus and jeepney operators to increase or decrease the prescribed transportation fares without application
therefor with the LTFRB and without hearing and approval thereof by said agency in violation of Sec.
16(c) of Commonwealth Act No. 146, as amended, otherwise known as the Public Service Act, and in
derogation of LTFRB's duty to fix and determine just and reasonable fares by delegating that function to
bus operators, and (b) establish a presumption of public need in favor of applicants for certificates of
public convenience (CPC) and place on the oppositor the burden of proving that there is no need for the
proposed service, in patent violation not only of Sec. 16(c) of CA 146, as amended, but also of Sec. 20(a)
of the same Act mandating that fares should be "just and reasonable." It is, likewise, violative of the Rules
of Court which places upon each party the burden to prove his own affirmative allegations.3 The
offending provisions contained in the questioned issuances pointed out by petitioner, have resulted in the
introduction into our highways and thoroughfares thousands of old and smoke-belching buses, many of
which are right-hand driven, and have exposed our consumers to the burden of spiraling costs of public
transportation without hearing and due process.
The following memoranda, circulars and/or orders are sought to be nullified by the instant petition, viz: (a)
DOTC Memorandum Order 90-395, dated June 26, 1990 relative to the implementation of a fare range
scheme for provincial bus services in the country; (b) DOTC Department Order No.
92-587, dated March 30, 1992, defining the policy framework on the regulation of transport services; (c)
DOTC Memorandum dated October 8, 1992, laying down rules and procedures to implement Department
Order No. 92-587; (d) LTFRB Memorandum Circular No. 92-009, providing implementing guidelines on
the DOTC Department Order No. 92-587; and (e) LTFRB Order dated March 24, 1994 in Case No. 94-
3112.
56
The relevant antecedents are as follows:
On June 26, 1990; then Secretary of DOTC, Oscar M. Orbos, issued Memorandum Circular No. 90-395 to
then LTFRB Chairman, Remedios A.S. Fernando allowing provincial bus operators to charge passengers
rates within a range of 15% above and 15% below the LTFRB official rate for a period of one (1) year.
The text of the memorandum order reads in full:
One of the policy reforms and measures that is in line with the thrusts and the priorities set out in the
Medium-Term Philippine Development Plan (MTPDP) 1987 — 1992) is the liberalization of regulations
in the transport sector. Along this line, the Government intends to move away gradually from regulatory
policies and make progress towards greater reliance on free market forces.
Based on several surveys and observations, bus companies are already charging passenger rates above and
below the official fare declared by LTFRB on many provincial routes. It is in this context that some form
of liberalization on public transport fares is to be tested on a pilot basis.
In view thereof, the LTFRB is hereby directed to immediately publicize a fare range scheme for all
provincial bus routes in country (except those operating within Metro Manila). Transport Operators shall
be allowed to charge passengers within a range of fifteen percent (15%) above and fifteen percent (15%)
below the LTFRB official rate for a period of one year.
Guidelines and procedures for the said scheme shall be prepared by LTFRB in coordination with the
DOTC Planning Service.
The implementation of the said fare range scheme shall start on 6 August 1990.
For compliance. (Emphasis ours.)
Finding the implementation of the fare range scheme "not legally feasible," Remedios A.S. Fernando
submitted the following memorandum to Oscar M. Orbos on July 24, 1990, to wit:
With reference to DOTC Memorandum Order No. 90-395 dated 26 June 1990 which the LTFRB received
on 19 July 1990, directing the Board "to immediately publicize a fare range scheme for all provincial bus
routes in the country (except those operating within Metro Manila)" that will allow operators "to charge
passengers within a range of fifteen percent (15%) above and fifteen percent (15%) below the LTFRB
official rate for a period of one year" the undersigned is respectfully adverting the Secretary's attention to
the following for his consideration:
1. Section 16(c) of the Public Service Act prescribes the following for the fixing and
determination of rates — (a) the rates to be approved should be proposed by public service operators; (b)
there should be a publication and notice to concerned or affected parties in the territory affected; (c) a
public hearing should be held for the fixing of the rates; hence, implementation of the proposed fare range
scheme on August 6 without complying with the requirements of the Public Service Act may not be
legally feasible.
2. To allow bus operators in the country to charge fares fifteen (15%) above the present LTFRB
fares in the wake of the devastation, death and suffering caused by the July 16 earthquake will not be
socially warranted and will be politically unsound; most likely public criticism against the DOTC and the
LTFRB will be triggered by the untimely motu propio implementation of the proposal by the mere
expedient of publicizing the fare range scheme without calling a public hearing, which scheme many as
early as during the Secretary's predecessor know through newspaper reports and columnists' comments to
be Asian Development Bank and World Bank inspired.
 57

3. More than inducing a reduction in bus fares by fifteen percent (15%) the implementation of the
proposal will instead trigger an upward adjustment in bus fares by fifteen percent (15%) at a time when
hundreds of thousands of people in Central and Northern Luzon, particularly in Central Pangasinan, La
Union, Baguio City, Nueva Ecija, and the Cagayan Valley are suffering from the devastation and havoc
caused by the recent earthquake.
On March 30, 1992, then Secretary of the Department of Transportation and Communications Pete
Nicomedes Prado issued Department Order No.
92-587 defining the policy framework on the regulation of transport services. The full text of the said
order is reproduced below in view of the importance of the provisions contained therein:

4. In lieu of the said proposal, the DOTC with its agencies involved in public transportation can WHEREAS, Executive Order No. 125 as amended, designates the Department of Transportation and
consider measures and reforms in the industry that will be socially uplifting, especially for the people in Communications (DOTC) as the primary policy, planning, regulating and implementing agency on
the areas devastated by the recent earthquake. transportation;

In view of the foregoing considerations, the undersigned respectfully suggests that the implementation of
the proposed fare range scheme this year be further studied and evaluated.
On December 5, 1990, private respondent Provincial Bus Operators Association of the Philippines, Inc.
(PBOAP) filed an application for fare rate increase. An across-the-board increase of eight and a half
centavos (P0.085) per kilometer for all types of provincial buses with a minimum-maximum fare range of
fifteen (15%) percent over and below the proposed basic per kilometer fare rate, with the said minimum-
maximum fare range applying only to ordinary, first class and premium class buses and a fifty-centavo
(P0.50) minimum per kilometer fare for aircon buses, was sought.
WHEREAS, to achieve the objective of a viable, efficient, and dependable transportation system, the
transportation regulatory agencies under or attached to the DOTC have to harmonize their decisions and
adopt a common philosophy and direction;
WHEREAS, the government proposes to build on the successful liberalization measures pursued over the
last five years and bring the transport sector nearer to a balanced longer term regulatory framework;
NOW, THEREFORE, pursuant to the powers granted by laws to the DOTC, the following policies and
principles in the economic regulation of land, air, and water transportation services are hereby adopted:

On December 6, 1990, private respondent PBOAP reduced its applied proposed fare to an across-the- 1. Entry into and exit out of the industry. Following the Constitutional dictum against monopoly,
board increase of six and a half (P0.065) centavos per kilometer for ordinary buses. The decrease was due no franchise holder shall be permitted to maintain a monopoly on any route. A minimum of two franchise
to the drop in the expected price of diesel. holders shall be permitted to operate on any route.

The application was opposed by the Philippine Consumers Foundation, Inc. and Perla C. Bautista alleging The requirements to grant a certificate to operate, or certificate of public convenience, shall be: proof of
that the proposed rates were exorbitant and unreasonable and that the application contained no allegation Filipino citizenship, financial capability, public need, and sufficient insurance cover to protect the riding
on the rate of return of the proposed increase in rates. public.

On December 14, 1990, public respondent LTFRB rendered a decision granting the fare rate increase in In determining public need, the presumption of need for a service shall be deemed in favor of the
accordance with the following schedule of fares on a straight computation method, viz: applicant. The burden of proving that there is no need for a proposed service shall be with the oppositor(s).

AUTHORIZED FARES In the interest of providing efficient public transport services, the use of the "prior operator" and the
"priority of filing" rules shall be discontinued. The route measured capacity test or other similar tests of
LUZON demand for vehicle/vessel fleet on any route shall be used only as a guide in weighing the merits of each
MIN. OF 5 KMS. SUCCEEDING KM. franchise application and not as a limit to the services offered.

REGULAR P1.50 P0.37 Where there are limitations in facilities, such as congested road space in urban areas, or at airports and
STUDENT P1.15 P0.28 ports, the use of demand management measures in conformity with market principles may be considered.

VISAYAS/MINDANAO The right of an operator to leave the industry is recognized as a business decision, subject only to the filing
of appropriate notice and following a phase-out period, to inform the public and to minimize disruption of
REGULAR P1.60 P0.375 services.
STUDENT P1.20 P0.285
FIRST CLASS (PER KM.) 2. Rate and Fare Setting. Freight rates shall be freed gradually from government controls.
LUZON P0.385 Passenger fares shall also be deregulated, except for the lowest class of passenger service (normally third
VISAYAS/ class passenger transport) for which the government will fix indicative or reference fares. Operators of
MINDANAO P0.395 particular services may fix their own fares within a range 15% above and below the indicative or reference
PREMIERE CLASS (PER KM.) rate.
LUZON P0.395
VISAYAS/ Where there is lack of effective competition for services, or on specific routes, or for the transport of
MINDANAO P0.405 particular commodities, maximum mandatory freight rates or passenger fares shall be set temporarily by
the government pending actions to increase the level of competition.
AIRCON (PER KM.) P0.415.4

For unserved or single operator routes, the government shall contract such services in the most
advantageous terms to the public and the government, following public bids for the services. The
advisability of bidding out the services or using other kinds of incentives on such routes shall be studied
by the government.
3. Special Incentives and Financing for Fleet Acquisition. As a matter of policy, the government
shall not engage in special financing and incentive programs, including direct subsidies for fleet
acquisition and expansion. Only when the market situation warrants government intervention shall
programs of this type be considered. Existing programs shall be phased out gradually.
The Land Transportation Franchising and Regulatory Board, the Civil Aeronautics Board, the Maritime
Industry Authority are hereby directed to submit to the Office of the Secretary, within forty-five (45) days
of this Order, the detailed rules and procedures for the Implementation of the policies herein set forth. In
the formulation of such rules, the concerned agencies shall be guided by the most recent studies on the
subjects, such as the Provincial Road Passenger Transport Study, the Civil Aviation Master Plan, the
Presidential Task Force on the Inter-island Shipping Industry, and the Inter-island Liner Shipping Rate
Rationalization Study.
For the compliance of all concerned. (Emphasis ours)
On October 8, 1992, public respondent Secretary of the Department of Transportation and
Communications Jesus B. Garcia, Jr. issued a memorandum to the Acting Chairman of the LTFRB
suggesting swift action on the adoption of rules and procedures to implement above-quoted Department
Order No. 92-587 that laid down deregulation and other liberalization policies for the transport sector.
Attached to the said memorandum was a revised draft of the required rules and procedures covering (i)
Entry Into and Exit Out of the Industry and (ii) Rate and Fare Setting, with comments and suggestions
from the World Bank incorporated therein. Likewise, resplendent from the said memorandum is the
statement of the DOTC Secretary that the adoption of the rules and procedures is a pre-requisite to the
approval of the Economic Integration Loan from the World Bank.5
On February 17, 1993, the LTFRB issued Memorandum Circular
No. 92-009 promulgating the guidelines for the implementation of DOTC Department Order No. 92-587.
The Circular provides, among others, the following challenged portions:
xxx xxx xxx
IV. Policy Guidelines on the Issuance of Certificate of Public Convenience.
The issuance of a Certificate of Public Convenience is determined by public need. The presumption of
public need for a service shall be deemed in favor of the applicant, while burden of proving that there is no
need for the proposed service shall be the oppositor'(s).
xxx xxx xxx
V. Rate and Fare Setting
The control in pricing shall be liberalized to introduce price competition complementary with the quality
of service, subject to prior notice and public hearing. Fares shall not be provisionally authorized without
public hearing.
A. On the General Structure of Rates
58
1. The existing authorized fare range system of plus or minus 15 per cent for provincial buses and
jeepneys shall be widened to 20% and -25% limit in 1994 with the authorized fare to be replaced by an
indicative or reference rate as the basis for the expanded fare range.
2. Fare systems for aircon buses are liberalized to cover first class and premier services.
xxx xxx xxx
(Emphasis ours).
Sometime in March, 1994, private respondent PBOAP, availing itself of the deregulation policy of the
DOTC allowing provincial bus operators to collect plus 20% and minus 25% of the prescribed fare
without first having filed a petition for the purpose and without the benefit of a public hearing, announced
a fare increase of twenty (20%) percent of the existing fares. Said increased fares were to be made
effective on March 16, 1994.
On March 16, 1994, petitioner KMU filed a petition before the LTFRB opposing the upward adjustment
of bus fares.
On March 24, 1994, the LTFRB issued one of the assailed orders dismissing the petition for lack of merit.
The dispositive portion reads:
PREMISES CONSIDERED, this Board after considering the arguments of the parties, hereby
DISMISSES FOR LACK OF MERIT the petition filed in the above-entitled case. This petition in this case
was resolved with dispatch at the request of petitioner to enable it to immediately avail of the legal
remedies or options it is entitled under existing laws.
SO ORDERED.6
Hence, the instant petition for certiorari with an urgent prayer for issuance of a temporary restraining
order.
The Court, on June 20, 1994, issued a temporary restraining order enjoining, prohibiting and preventing
respondents from implementing the bus fare rate increase as well as the questioned orders and
memorandum circulars. This meant that provincial bus fares were rolled back to the levels duly authorized
by the LTFRB prior to March 16, 1994. A moratorium was likewise enforced on the issuance of franchises
for the operation of buses, jeepneys, and taxicabs.
Petitioner KMU anchors its claim on two (2) grounds. First, the authority given by respondent LTFRB to
provincial bus operators to set a fare range of plus or minus fifteen (15%) percent, later increased to plus
twenty (20%) and minus twenty-five (-25%) percent, over and above the existing authorized fare without
having to file a petition for the purpose, is unconstitutional, invalid and illegal. Second, the establishment
of a presumption of public need in favor of an applicant for a proposed transport service without having to
prove public necessity, is illegal for being violative of the Public Service Act and the Rules of Court.
In its Comment, private respondent PBOAP, while not actually touching upon the issues raised by the
petitioner, questions the wisdom and the manner by which the instant petition was filed. It asserts that the
petitioner has no legal standing to sue or has no real interest in the case at bench and in obtaining the
reliefs prayed for.
In their Comment filed by the Office of the Solicitor General, public respondents DOTC Secretary Jesus
B. Garcia, Jr. and the LTFRB asseverate that the petitioner does not have the standing to maintain the

instant suit. They further claim that it is within DOTC and LTFRB's authority to set a fare range scheme
and establish a presumption of public need in applications for certificates of public convenience.
We find the instant petition impressed with merit.
At the outset, the threshold issue of locus standi must be struck. Petitioner KMU has the standing to sue.
The requirement of locus standi inheres from the definition of judicial power. Section 1 of Article VIII of
the Constitution provides:
xxx xxx xxx
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government.
In Lamb v. Phipps,7 we ruled that judicial power is the power to hear and decide causes pending between
parties who have the right to sue in the courts of law and equity. Corollary to this provision is the principle
of locus standi of a party litigant. One who is directly affected by and whose interest is immediate and
substantial in the controversy has the standing to sue. The rule therefore requires that a party must show a
personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable
decision so as to warrant an invocation of the court's jurisdiction and to justify the exercise of the court's
remedial powers in his behalf.8
In the case at bench, petitioner, whose members had suffered and continue to suffer grave and irreparable
injury and damage from the implementation of the questioned memoranda, circulars and/or orders, has
shown that it has a clear legal right that was violated and continues to be violated with the enforcement of
the challenged memoranda, circulars and/or orders. KMU members, who avail of the use of buses, trains
and jeepneys everyday, are directly affected by the burdensome cost of arbitrary increase in passenger
fares. They are part of the millions of commuters who comprise the riding public. Certainly, their rights
must be protected, not neglected nor ignored.
Assuming arguendo that petitioner is not possessed of the standing to sue, this court is ready to brush aside
this barren procedural infirmity and recognize the legal standing of the petitioner in view of the
transcendental importance of the issues raised. And this act of liberality is not without judicial precedent.
As early as the Emergency Powers Cases, this Court had exercised its discretion and waived the
requirement of proper party. In the recent case of Kilosbayan, Inc., et al. v. Teofisto Guingona, Jr., et al.,9
we ruled in the same lines and enumerated some of the cases where the same policy was adopted, viz:
. . . A party's standing before this Court is a procedural technicality which it may, in the exercise of its
discretion, set aside in view of the importance of the issues raised. In the landmark Emergency Powers
Cases, [G.R. No. L-2044 (Araneta v. Dinglasan); G.R. No. L-2756 (Araneta
v. Angeles); G.R. No. L-3054 (Rodriguez v. Tesorero de Filipinas); G.R. No. L-3055 (Guerrero v.
Commissioner of Customs); and G.R. No. L-3056 (Barredo v. Commission on Elections), 84 Phil. 368
(1949)], this Court brushed aside this technicality because "the transcendental importance to the public of
these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities
of procedure. (Avelino vs. Cuenco, G.R. No. L-2621)." Insofar as taxpayers' suits are concerned, this
Court had declared that it "is not devoid of discretion as to whether or not it should be entertained," (Tan
v. Macapagal, 43 SCRA 677, 680 [1972]) or that it "enjoys an open discretion to entertain the same or
not." [Sanidad v. COMELEC, 73 SCRA 333 (1976)].
xxx xxx xxx
59
In line with the liberal policy of this Court on locus standi, ordinary taxpayers, members of Congress, and
even association of planters, and
non-profit civic organizations were allowed to initiate and prosecute actions before this court to question
the constitutionality or validity of laws, acts, decisions, rulings, or orders of various government agencies
or instrumentalities. Among such cases were those assailing the constitutionality of (a) R.A. No. 3836
insofar as it allows retirement gratuity and commutation of vacation and sick leave to Senators and
Representatives and to elective officials of both Houses of Congress (Philippine Constitution Association,
Inc. v. Gimenez, 15 SCRA 479 [1965]); (b) Executive Order No. 284, issued by President Corazon C.
Aquino on 25 July 1987, which allowed members of the cabinet, their undersecretaries, and assistant
secretaries to hold other government offices or positions (Civil Liberties Union v. Executive Secretary,
194 SCRA 317 [1991]); (c) the automatic appropriation for debt service in the General Appropriations Act
(Guingona v. Carague, 196 SCRA 221 [1991]; (d) R.A. No. 7056 on the holding of desynchronized
elections (Osmeña v. Commission on Elections, 199 SCRA 750 [1991]); (e) P.D. No. 1869 (the charter of
the Philippine Amusement and Gaming Corporation) on the ground that it is contrary to morals, public
policy, and order (Basco v. Philippine Amusement and Gaming Corp., 197 SCRA 52 [1991]); and (f) R.A.
No. 6975, establishing the Philippine National Police. (Carpio v. Executive Secretary, 206 SCRA 290
[1992]).
Other cases where we have followed a liberal policy regarding locus standi include those attacking the
validity or legality of (a) an order allowing the importation of rice in the light of the prohibition imposed
by R.A. No. 3452 (Iloilo Palay and Corn Planters Association, Inc. v. Feliciano, 13 SCRA 377 [1965]; (b)
P.D. Nos. 991 and 1033 insofar as they proposed amendments to the Constitution and P.D. No. 1031
insofar as it directed the COMELEC to supervise, control, hold, and conduct the referendum-plebiscite on
16 October 1976 (Sanidad v. Commission on Elections, supra); (c) the bidding for the sale of the 3,179
square meters of land at Roppongi, Minato-ku, Tokyo, Japan (Laurel v. Garcia, 187 SCRA 797 [1990]);
(d) the approval without hearing by the Board of Investments of the amended application of the Bataan
Petrochemical Corporation to transfer the site of its plant from Bataan to Batangas and the validity of such
transfer and the shift of feedstock from naphtha only to naphtha and/or liquefied petroleum gas (Garcia v.
Board of Investments, 177 SCRA 374 [1989]; Garcia v. Board of Investments, 191 SCRA 288 [1990]); (e)
the decisions, orders, rulings, and resolutions of the Executive Secretary, Secretary of Finance,
Commissioner of Internal Revenue, Commissioner of Customs, and the Fiscal Incentives Review Board
exempting the National Power Corporation from indirect tax and duties (Maceda v. Macaraig, 197 SCRA
771 [1991]); (f) the orders of the Energy Regulatory Board of 5 and 6 December 1990 on the ground that
the hearings conducted on the second provisional increase in oil prices did not allow the petitioner
substantial cross-examination; (Maceda v. Energy Regulatory Board, 199 SCRA 454 [1991]); (g)
Executive Order No. 478 which levied a special duty of P0.95 per liter of imported oil products (Garcia v.
Executive Secretary, 211 SCRA 219 [1992]); (h) resolutions of the Commission on Elections concerning
the apportionment, by district, of the number of elective members of Sanggunians (De Guia vs.
Commission on Elections, 208 SCRA 420 [1992]); and (i) memorandum orders issued by a Mayor
affecting the Chief of Police of Pasay City (Pasay Law and Conscience Union, Inc. v. Cuneta, 101 SCRA
662 [1980]).
In the 1975 case of Aquino v. Commission on Elections (62 SCRA 275 [1975]), this Court, despite its
unequivocal ruling that the petitioners therein had no personality to file the petition, resolved nevertheless
to pass upon the issues raised because of the far-reaching implications of the petition. We did no less in De
Guia v. COMELEC (Supra) where, although we declared that De Guia "does not appear to have locus
standi, a standing in law, a personal or substantial interest," we brushed aside the procedural infirmity
"considering the importance of the issue involved, concerning as it does the political exercise of qualified
voters affected by the apportionment, and petitioner alleging abuse of discretion and violation of the
Constitution by respondent."
Now on the merits of the case.

On the fare range scheme.
Section 16(c) of the Public Service Act, as amended, reads:
Sec. 16. Proceedings of the Commission, upon notice and hearing. — The Commission shall have
power, upon proper notice and hearing in accordance with the rules and provisions of this Act, subject to
the limitations and exceptions mentioned and saving provisions to the contrary:
xxx xxx xxx
(c) To fix and determine individual or joint rates, tolls, charges, classifications, or schedules
thereof, as well as commutation, mileage kilometrage, and other special rates which shall be imposed,
observed, and followed thereafter by any public service: Provided, That the Commission may, in its
discretion, approve rates proposed by public services provisionally and without necessity of any hearing;
but it shall call a hearing thereon within thirty days thereafter, upon publication and notice to the concerns
operating in the territory affected: Provided, further, That in case the public service equipment of an
operator is used principally or secondarily for the promotion of a private business, the net profits of said
private business shall be considered in relation with the public service of such operator for the purpose of
fixing the rates. (Emphasis ours).
xxx xxx xxx
Under the foregoing provision, the Legislature delegated to the defunct Public Service Commission the
power of fixing the rates of public services. Respondent LTFRB, the existing regulatory body today, is
likewise vested with the same under Executive Order No. 202 dated June 19, 1987. Section 5(c) of the
said executive order authorizes LTFRB "to determine, prescribe, approve and periodically review and
adjust, reasonable fares, rates and other related charges, relative to the operation of public land
transportation services provided by motorized vehicles."
Such delegation of legislative power to an administrative agency is permitted in order to adapt to the
increasing complexity of modern life. As subjects for governmental regulation multiply, so does the
difficulty of administering the laws. Hence, specialization even in legislation has become necessary. Given
the task of determining sensitive and delicate matters as
route-fixing and rate-making for the transport sector, the responsible regulatory body is entrusted with the
power of subordinate legislation. With this authority, an administrative body and in this case, the LTFRB,
may implement broad policies laid down in a statute by "filling in" the details which the Legislature may
neither have time or competence to provide. However, nowhere under the aforesaid provisions of law are
the regulatory bodies, the PSC and LTFRB alike, authorized to delegate that power to a common carrier, a
transport operator, or other public service.
In the case at bench, the authority given by the LTFRB to the provincial bus operators to set a fare range
over and above the authorized existing fare, is illegal and invalid as it is tantamount to an undue
delegation of legislative authority. Potestas delegata non delegari potest. What has been delegated cannot
be delegated. This doctrine is based on the ethical principle that such a delegated power constitutes not
only a right but a duty to be performed by the delegate through the instrumentality of his own judgment
and not through the intervening mind of another.10 A further delegation of such power would indeed
constitute a negation of the duty in violation of the trust reposed in the delegate mandated to discharge it
directly.11 The policy of allowing the provincial bus operators to change and increase their fares at will
would result not only to a chaotic situation but to an anarchic state of affairs. This would leave the riding
public at the mercy of transport operators who may increase fares every hour, every day, every month or
every year, whenever it pleases them or whenever they deem it "necessary" to do so. In Panay Autobus
60
Co. v. Philippine Railway Co.,12 where respondent Philippine Railway Co. was granted by the Public
Service Commission the authority to change its freight rates at will, this Court categorically declared that:
In our opinion, the Public Service Commission was not authorized by law to delegate to the Philippine
Railway Co. the power of altering its freight rates whenever it should find it necessary to do so in order to
meet the competition of road trucks and autobuses, or to change its freight rates at will, or to regard its
present rates as maximum rates, and to fix lower rates whenever in the opinion of the Philippine Railway
Co. it would be to its advantage to do so.
The mere recital of the language of the application of the Philippine Railway Co. is enough to show that it
is untenable. The Legislature has delegated to the Public Service Commission the power of fixing the rates
of public services, but it has not authorized the Public Service Commission to delegate that power to a
common carrier or other public service. The rates of public services like the Philippine Railway Co. have
been approved or fixed by the Public Service Commission, and any change in such rates must be
authorized or approved by the Public Service Commission after they have been shown to be just and
reasonable. The public service may, of course, propose new rates, as the Philippine Railway Co. did in
case No. 31827, but it cannot lawfully make said new rates effective without the approval of the Public
Service Commission, and the Public Service Commission itself cannot authorize a public service to
enforce new rates without the prior approval of said rates by the commission. The commission must
approve new rates when they are submitted to it, if the evidence shows them to be just and reasonable,
otherwise it must disapprove them. Clearly, the commission cannot determine in advance whether or not
the new rates of the Philippine Railway Co. will be just and reasonable, because it does not know what
those rates will be.
In the present case the Philippine Railway Co. in effect asked for permission to change its freight rates at
will. It may change them every day or every hour, whenever it deems it necessary to do so in order to meet
competition or whenever in its opinion it would be to its advantage. Such a procedure would create a most
unsatisfactory state of affairs and largely defeat the purposes of the public service law.13 (Emphasis ours).
One veritable consequence of the deregulation of transport fares is a compounded fare. If transport
operators will be authorized to impose and collect an additional amount equivalent to 20% over and above
the authorized fare over a period of time, this will unduly prejudice a commuter who will be made to pay a
fare that has been computed in a manner similar to those of compounded bank interest rates.
Picture this situation. On December 14, 1990, the LTFRB authorized provincial bus operators to collect a
thirty-seven (P0.37) centavo per kilometer fare for ordinary buses. At the same time, they were allowed to
impose and collect a fare range of plus or minus 15% over the authorized rate. Thus P0.37 centavo per
kilometer authorized fare plus P0.05 centavos (which is 15% of P0.37 centavos) is equivalent to P0.42
centavos, the allowed rate in 1990. Supposing the LTFRB grants another five (P0.05) centavo increase per
kilometer in 1994, then, the base or reference for computation would have to be P0.47 centavos (which is
P0.42 + P0.05 centavos). If bus operators will exercise their authority to impose an additional 20% over
and above the authorized fare, then the fare to be collected shall amount to P0.56 (that is, P0.47 authorized
LTFRB rate plus 20% of P0.47 which is P0.29). In effect, commuters will be continuously subjected, not
only to a double fare adjustment but to a compounding fare as well. On their part, transport operators shall
enjoy a bigger chunk of the pie. Aside from fare increase applied for, they can still collect an additional
amount by virtue of the authorized fare range. Mathematically, the situation translates into the following:
Year** LTFRB authorized Fare Range Fare to be
rate*** collected per
kilometer
1990 P0.37 15% (P0.05) P0.42
1994 P0.42 + 0.05 = 0.47 20% (P0.09) P0.56

1998 P0.56 + 0.05 = 0.61 20% (P0.12) P0.73
2002 P0.73 + 0.05 = 0.78 20% (P0.16) P0.94
Moreover, rate making or rate fixing is not an easy task. It is a delicate and sensitive government function
that requires dexterity of judgment and sound discretion with the settled goal of arriving at a just and
reasonable rate acceptable to both the public utility and the public. Several factors, in fact, have to be
taken into consideration before a balance could be achieved. A rate should not be confiscatory as would
place an operator in a situation where he will continue to operate at a loss. Hence, the rate should enable
public utilities to generate revenues sufficient to cover operational costs and provide reasonable return on
the investments. On the other hand, a rate which is too high becomes discriminatory. It is contrary to
public interest. A rate, therefore, must be reasonable and fair and must be affordable to the end user who
will utilize the services.
Given the complexity of the nature of the function of rate-fixing and its far-reaching effects on millions of
commuters, government must not relinquish this important function in favor of those who would benefit
and profit from the industry. Neither should the requisite notice and hearing be done away with. The
people, represented by reputable oppositors, deserve to be given full opportunity to be heard in their
opposition to any fare increase.
The present administrative procedure, 14 to our mind, already mirrors an orderly and satisfactory
arrangement for all parties involved. To do away with such a procedure and allow just one party, an
interested party at that, to determine what the rate should be, will undermine the right of the other parties
to due process. The purpose of a hearing is precisely to determine what a just and reasonable rate is.15
Discarding such procedural and constitutional right is certainly inimical to our fundamental law and to
public interest.
On the presumption of public need.
A certificate of public convenience (CPC) is an authorization granted by the LTFRB for the operation of
land transportation services for public use as required by law. Pursuant to Section 16(a) of the Public
Service Act, as amended, the following requirements must be met before a CPC may be granted, to wit: (i)
the applicant must be a citizen of the Philippines, or a corporation or co-partnership, association or joint-
stock company constituted and organized under the laws of the Philippines, at least 60 per centum of its
stock or paid-up capital must belong entirely to citizens of the Philippines; (ii) the applicant must be
financially capable of undertaking the proposed service and meeting the responsibilities incident to its
operation; and (iii) the applicant must prove that the operation of the public service proposed and the
authorization to do business will promote the public interest in a proper and suitable manner. It is
understood that there must be proper notice and hearing before the PSC can exercise its power to issue a
CPC.
While adopting in toto the foregoing requisites for the issuance of a CPC, LTFRB Memorandum Circular
No. 92-009, Part IV, provides for yet incongruous and contradictory policy guideline on the issuance of a
CPC. The guidelines states:
The issuance of a Certificate of Public Convenience is determined by public need. The presumption of
public need for a service shall be deemed in favor of the applicant, while the burden of proving that there
is no need for the proposed service shall be the oppositor's. (Emphasis ours).
The above-quoted provision is entirely incompatible and inconsistent with Section 16(c)(iii) of the Public
Service Act which requires that before a CPC will be issued, the applicant must prove by proper notice
and hearing that the operation of the public service proposed will promote public interest in a proper and
suitable manner. On the contrary, the policy guideline states that the presumption of public need for a
61
public service shall be deemed in favor of the applicant. In case of conflict between a statute and an
administrative order, the former must prevail.
By its terms, public convenience or necessity generally means something fitting or suited to the public
need.16 As one of the basic requirements for the grant of a CPC, public convenience and necessity exists
when the proposed facility or service meets a reasonable want of the public and supply a need which the
existing facilities do not adequately supply. The existence or
non-existence of public convenience and necessity is therefore a question of fact that must be established
by evidence, real and/or testimonial; empirical data; statistics and such other means necessary, in a public
hearing conducted for that purpose. The object and purpose of such procedure, among other things, is to
look out for, and protect, the interests of both the public and the existing transport operators.
Verily, the power of a regulatory body to issue a CPC is founded on the condition that after full-dress
hearing and investigation, it shall find, as a fact, that the proposed operation is for the convenience of the
public.17 Basic convenience is the primary consideration for which a CPC is issued, and that fact alone
must be consistently borne in mind. Also, existing operators in subject routes must be given an
opportunity to offer proof and oppose the application. Therefore, an applicant must, at all times, be
required to prove his capacity and capability to furnish the service which he has undertaken to
render. 18 And all this will be possible only if a public hearing were conducted for that purpose.
Otherwise stated, the establishment of public need in favor of an applicant reverses well-settled and
institutionalized judicial, quasi-judicial and administrative procedures. It allows the party who initiates the
proceedings to prove, by mere application, his affirmative allegations. Moreover, the offending provisions
of the LTFRB memorandum circular in question would in effect amend the Rules of Court by adding
another disputable presumption in the enumeration of 37 presumptions under Rule 131, Section 5 of the
Rules of Court. Such usurpation of this Court's authority cannot be countenanced as only this Court is
mandated by law to promulgate rules concerning pleading, practice and procedure. 19
Deregulation, while it may be ideal in certain situations, may not be ideal at all in our country given the
present circumstances. Advocacy of liberalized franchising and regulatory process is tantamount to an
abdication by the government of its inherent right to exercise police power, that is, the right of government
to regulate public utilities for protection of the public and the utilities themselves.
While we recognize the authority of the DOTC and the LTFRB to issue administrative orders to regulate
the transport sector, we find that they committed grave abuse of discretion in issuing DOTC Department
Order
No. 92-587 defining the policy framework on the regulation of transport services and LTFRB
Memorandum Circular No. 92-009 promulgating the implementing guidelines on DOTC Department
Order No. 92-587, the said administrative issuances being amendatory and violative of the Public Service
Act and the Rules of Court. Consequently, we rule that the twenty (20%) per centum fare increase
imposed by respondent PBOAP on March 16, 1994 without the benefit of a petition and a public hearing
is null and void and of no force and effect. No grave abuse of discretion however was committed in the
issuance of DOTC Memorandum Order No. 90-395 and DOTC Memorandum dated October 8, 1992, the
same being merely internal communications between administrative officers.
WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and the challenged
administrative issuances and orders, namely: DOTC Department Order No. 92-587, LTFRB Memorandum
Circular
No. 92-009, and the order dated March 24, 1994 issued by respondent LTFRB are hereby DECLARED
contrary to law and invalid insofar as they affect provisions therein (a) delegating to provincial bus and
jeepney operators the authority to increase or decrease the duly prescribed transportation fares; and (b)
creating a presumption of public need for a service in favor of the applicant for a certificate of public

convenience and placing the burden of proving that there is no need for the proposed service to the
oppositor.
The Temporary Restraining Order issued on June 20, 1994 is hereby MADE PERMANENT insofar as it
enjoined the bus fare rate increase granted under the provisions of the aforementioned administrative
circulars, memoranda and/or orders declared invalid.
No pronouncement as to costs.
SO ORDERED.
PALAEZ VS AUDITOR GENERAL
During the period from September 4 to October 29, 1964 the President of the Philippines, purporting to act
pursuant to Section 68 of the Revised Administrative Code, issued Executive Orders Nos. 93 to 121, 124
and 126 to 129; creating thirty-three (33) municipalities enumerated in the margin.1 Soon after the date
last mentioned, or on November 10, 1964 petitioner Emmanuel Pelaez, as Vice President of the
Philippines and as taxpayer, instituted the present special civil action, for a writ of prohibition with
preliminary injunction, against the Auditor General, to restrain him, as well as his representatives and
agents, from passing in audit any expenditure of public funds in implementation of said executive orders
and/or any disbursement by said municipalities.
Petitioner alleges that said executive orders are null and void, upon the ground that said Section 68 has
been impliedly repealed by Republic Act No. 2370 and constitutes an undue delegation of legislative
power. Respondent maintains the contrary view and avers that the present action is premature and that not
all proper parties — referring to the officials of the new political subdivisions in question — have been
impleaded. Subsequently, the mayors of several municipalities adversely affected by the aforementioned
executive orders — because the latter have taken away from the former the barrios composing the new
political subdivisions — intervened in the case. Moreover, Attorneys Enrique M. Fernando and Emma
Quisumbing-Fernando were allowed to and did appear as amici curiae.
The third paragraph of Section 3 of Republic Act No. 2370, reads:
Barrios shall not be created or their boundaries altered nor their names changed except under the
provisions of this Act or by Act of Congress.
Pursuant to the first two (2) paragraphs of the same Section 3:
All barrios existing at the time of the passage of this Act shall come under the provisions hereof.
Upon petition of a majority of the voters in the areas affected, a new barrio may be created or the name of
an existing one may be changed by the provincial board of the province, upon recommendation of the
council of the municipality or municipalities in which the proposed barrio is stipulated. The
recommendation of the municipal council shall be embodied in a resolution approved by at least two-
thirds of the entire membership of the said council: Provided, however, That no new barrio may be created
if its population is less than five hundred persons.
Hence, since January 1, 1960, when Republic Act No. 2370 became effective, barrios may "not be created
or their boundaries altered nor their names changed" except by Act of Congress or of the corresponding
provincial board "upon petition of a majority of the voters in the areas affected" and the "recommendation
of the council of the municipality or municipalities in which the proposed barrio is situated." Petitioner
argues, accordingly: "If the President, under this new law, cannot even create a barrio, can he create a
municipality which is composed of several barrios, since barrios are units of municipalities?"
62
Respondent answers in the affirmative, upon the theory that a new municipality can be created without
creating new barrios, such as, by placing old barrios under the jurisdiction of the new municipality. This
theory overlooks, however, the main import of the petitioner's argument, which is that the statutory denial
of the presidential authority to create a new barrio implies a negation of the bigger power to create
municipalities, each of which consists of several barrios. The cogency and force of this argument is too
obvious to be denied or even questioned. Founded upon logic and experience, it cannot be offset except by
a clear manifestation of the intent of Congress to the contrary, and no such manifestation, subsequent to
the passage of Republic Act No. 2379, has been brought to our attention.
Moreover, section 68 of the Revised Administrative Code, upon which the disputed executive orders are
based, provides:
The (Governor-General) President of the Philippines may by executive order define the boundary, or
boundaries, of any province, subprovince, municipality, [township] municipal district, or other political
subdivision, and increase or diminish the territory comprised therein, may divide any province into one or
more subprovinces, separate any political division other than a province, into such portions as may be
required, merge any of such subdivisions or portions with another, name any new subdivision so created,
and may change the seat of government within any subdivision to such place therein as the public welfare
may require: Provided, That the authorization of the (Philippine Legislature) Congress of the Philippines
shall first be obtained whenever the boundary of any province or subprovince is to be defined or any
province is to be divided into one or more subprovinces. When action by the (Governor-General)
President of the Philippines in accordance herewith makes necessary a change of the territory under the
jurisdiction of any administrative officer or any judicial officer, the (Governor-General) President of the
Philippines, with the recommendation and advice of the head of the Department having executive control
of such officer, shall redistrict the territory of the several officers affected and assign such officers to the
new districts so formed.
Upon the changing of the limits of political divisions in pursuance of the foregoing authority, an equitable
distribution of the funds and obligations of the divisions thereby affected shall be made in such manner as
may be recommended by the (Insular Auditor) Auditor General and approved by the (Governor-General)
President of the Philippines.
Respondent alleges that the power of the President to create municipalities under this section does not
amount to an undue delegation of legislative power, relying upon Municipality of Cardona vs.
Municipality of Binañgonan (36 Phil. 547), which, he claims, has settled it. Such claim is untenable, for
said case involved, not the creation of a new municipality, but a mere transfer of territory — from an
already existing municipality (Cardona) to another municipality (Binañgonan), likewise, existing at the
time of and prior to said transfer (See Gov't of the P.I. ex rel. Municipality of Cardona vs. Municipality, of
Binañgonan [34 Phil. 518, 519-5201) — in consequence of the fixing and definition, pursuant to Act No.
1748, of the common boundaries of two municipalities.
It is obvious, however, that, whereas the power to fix such common boundary, in order to avoid or settle
conflicts of jurisdiction between adjoining municipalities, may partake of an administrative nature —
involving, as it does, the adoption of means and ways to carry into effect the law creating said
municipalities — the authority to create municipal corporations is essentially legislative in nature. In the
language of other courts, it is "strictly a legislative function" (State ex rel. Higgins vs. Aicklen, 119 S. 425,
January 2, 1959) or "solely and exclusively the exercise of legislative power" (Udall vs. Severn, May 29,
1938, 79 P. 2d 347-349). As the Supreme Court of Washington has put it (Territory ex rel. Kelly vs.
Stewart, February 13, 1890, 23 Pac. 405, 409), "municipal corporations are purely the creatures of
statutes."
Although1a Congress may delegate to another branch of the Government the power to fill in the details in
the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle

of separation of powers, that said law: (a) be complete in itself — it must set forth therein the policy to be
executed, carried out or implemented by the delegate2 — and (b) fix a standard — the limits of which are
sufficiently determinate or determinable — to which the delegate must conform in the performance of his
functions.2a Indeed, without a statutory declaration of policy, the delegate would in effect, make or
formulate such policy, which is the essence of every law; and, without the aforementioned standard, there
would be no means to determine, with reasonable certainty, whether the delegate has acted within or
beyond the scope of his authority.2b Hence, he could thereby arrogate upon himself the power, not only to
make the law, but, also — and this is worse — to unmake it, by adopting measures inconsistent with the
end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and
the system of checks and balances, and, consequently, undermining the very foundation of our Republican
system.
Section 68 of the Revised Administrative Code does not meet these well settled requirements for a valid
delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to
be carried out or implemented by the President. Neither does it give a standard sufficiently precise to
avoid the evil effects above referred to. In this connection, we do not overlook the fact that, under the last
clause of the first sentence of Section 68, the President:
... may change the seat of the government within any subdivision to such place therein as the public
welfare may require.
It is apparent, however, from the language of this clause, that the phrase "as the public welfare may
require" qualified, not the clauses preceding the one just quoted, but only the place to which the seat of the
government may be transferred. This fact becomes more apparent when we consider that said Section 68
was originally Section 1 of Act No. 1748,3 which provided that, "whenever in the judgment of the
Governor-General the public welfare requires, he may, by executive order," effect the changes enumerated
therein (as in said section 68), including the change of the seat of the government "to such place ... as the
public interest requires." The opening statement of said Section 1 of Act No. 1748 — which was not
included in Section 68 of the Revised Administrative Code — governed the time at which, or the
conditions under which, the powers therein conferred could be exercised; whereas the last part of the first
sentence of said section referred exclusively to the place to which the seat of the government was to be
transferred.
At any rate, the conclusion would be the same, insofar as the case at bar is concerned, even if we assumed
that the phrase "as the public welfare may require," in said Section 68, qualifies all other clauses thereof. It
is true that in Calalang vs. Williams (70 Phil. 726) and People vs. Rosenthal (68 Phil. 328), this Court had
upheld "public welfare" and "public interest," respectively, as sufficient standards for a valid delegation of
the authority to execute the law. But, the doctrine laid down in these cases — as all judicial
pronouncements — must be construed in relation to the specific facts and issues involved therein, outside
of which they do not constitute precedents and have no binding effect.4 The law construed in the Calalang
case conferred upon the Director of Public Works, with the approval of the Secretary of Public Works and
Communications, the power to issue rules and regulations to promote safe transit upon national roads and
streets. Upon the other hand, the Rosenthal case referred to the authority of the Insular Treasurer, under
Act No. 2581, to issue and cancel certificates or permits for the sale of speculative securities. Both cases
involved grants to administrative officers of powers related to the exercise of their administrative
functions, calling for the determination of questions of fact.
Such is not the nature of the powers dealt with in section 68. As above indicated, the creation of
municipalities, is not an administrative function, but one which is essentially and eminently legislative in
character. The question of whether or not "public interest" demands the exercise of such power is not one
of fact. it is "purely a legislative question "(Carolina-Virginia Coastal Highway vs. Coastal Turnpike
Authority, 74 S.E. 2d. 310-313, 315-318), or a political question (Udall vs. Severn, 79 P. 2d. 347-349). As
the Supreme Court of Wisconsin has aptly characterized it, "the question as to whether incorporation is for
63
the best interest of the community in any case is emphatically a question of public policy and statecraft"
(In re Village of North Milwaukee, 67 N.W. 1033, 1035-1037).
For this reason, courts of justice have annulled, as constituting undue delegation of legislative powers,
state laws granting the judicial department, the power to determine whether certain territories should be
annexed to a particular municipality (Udall vs. Severn, supra, 258-359); or vesting in a Commission the
right to determine the plan and frame of government of proposed villages and what functions shall be
exercised by the same, although the powers and functions of the village are specifically limited by statute
(In re Municipal Charters, 86 Atl. 307-308); or conferring upon courts the authority to declare a given
town or village incorporated, and designate its metes and bounds, upon petition of a majority of the
taxable inhabitants thereof, setting forth the area desired to be included in such village (Territory ex rel
Kelly vs. Stewart, 23 Pac. 405-409); or authorizing the territory of a town, containing a given area and
population, to be incorporated as a town, on certain steps being taken by the inhabitants thereof and on
certain determination by a court and subsequent vote of the inhabitants in favor thereof, insofar as the
court is allowed to determine whether the lands embraced in the petition "ought justly" to be included in
the village, and whether the interest of the inhabitants will be promoted by such incorporation, and to
enlarge and diminish the boundaries of the proposed village "as justice may require" (In re Villages of
North Milwaukee, 67 N.W. 1035-1037); or creating a Municipal Board of Control which shall determine
whether or not the laying out, construction or operation of a toll road is in the "public interest" and
whether the requirements of the law had been complied with, in which case the board shall enter an order
creating a municipal corporation and fixing the name of the same (Carolina-Virginia Coastal Highway vs.
Coastal Turnpike Authority, 74 S.E. 2d. 310).
Insofar as the validity of a delegation of power by Congress to the President is concerned, the case of
Schechter Poultry Corporation vs. U.S. (79 L. Ed. 1570) is quite relevant to the one at bar. The Schechter
case involved the constitutionality of Section 3 of the National Industrial Recovery Act authorizing the
President of the United States to approve "codes of fair competition" submitted to him by one or more
trade or industrial associations or corporations which "impose no inequitable restrictions on admission to
membership therein and are truly representative," provided that such codes are not designed "to promote
monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them,
and will tend to effectuate the policy" of said Act. The Federal Supreme Court held:
To summarize and conclude upon this point: Sec. 3 of the Recovery Act is without precedent. It supplies
no standards for any trade, industry or activity. It does not undertake to prescribe rules of conduct to be
applied to particular states of fact determined by appropriate administrative procedure. Instead of
prescribing rules of conduct, it authorizes the making of codes to prescribe them. For that legislative
undertaking, Sec. 3 sets up no standards, aside from the statement of the general aims of rehabilitation,
correction and expansion described in Sec. 1. In view of the scope of that broad declaration, and of the
nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing
codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually
unfettered. We think that the code making authority thus conferred is an unconstitutional delegation of
legislative power.
If the term "unfair competition" is so broad as to vest in the President a discretion that is "virtually
unfettered." and, consequently, tantamount to a delegation of legislative power, it is obvious that "public
welfare," which has even a broader connotation, leads to the same result. In fact, if the validity of the
delegation of powers made in Section 68 were upheld, there would no longer be any legal impediment to a
statutory grant of authority to the President to do anything which, in his opinion, may be required by
public welfare or public interest. Such grant of authority would be a virtual abdication of the powers of
Congress in favor of the Executive, and would bring about a total collapse of the democratic system
established by our Constitution, which it is the special duty and privilege of this Court to uphold.

It may not be amiss to note that the executive orders in question were issued after the legislative bills for
the creation of the municipalities involved in this case had failed to pass Congress. A better proof of the
fact that the issuance of said executive orders entails the exercise of purely legislative functions can hardly
be given.
Again, Section 10 (1) of Article VII of our fundamental law ordains:
The President shall have control of all the executive departments, bureaus, or offices, exercise general
supervision over all local governments as may be provided by law, and take care that the laws be faithfully
executed.
The power of control under this provision implies the right of the President to interfere in the exercise of
such discretion as may be vested by law in the officers of the executive departments, bureaus, or offices of
the national government, as well as to act in lieu of such officers. This power is denied by the Constitution
to the Executive, insofar as local governments are concerned. With respect to the latter, the fundamental
law permits him to wield no more authority than that of checking whether said local governments or the
officers thereof perform their duties as provided by statutory enactments. Hence, the President cannot
interfere with local governments, so long as the same or its officers act Within the scope of their authority.
He may not enact an ordinance which the municipal council has failed or refused to pass, even if it had
thereby violated a duty imposed thereto by law, although he may see to it that the corresponding
provincial officials take appropriate disciplinary action therefor. Neither may he vote, set aside or annul an
ordinance passed by said council within the scope of its jurisdiction, no matter how patently unwise it may
be. He may not even suspend an elective official of a regular municipality or take any disciplinary action
against him, except on appeal from a decision of the corresponding provincial board.5
Upon the other hand if the President could create a municipality, he could, in effect, remove any of its
officials, by creating a new municipality and including therein the barrio in which the official concerned
resides, for his office would thereby become vacant.6 Thus, by merely brandishing the power to create a
new municipality (if he had it), without actually creating it, he could compel local officials to submit to his
dictation, thereby, in effect, exercising over them the power of control denied to him by the Constitution.
Then, also, the power of control of the President over executive departments, bureaus or offices implies no
more than the authority to assume directly the functions thereof or to interfere in the exercise of discretion
by its officials. Manifestly, such control does not include the authority either to abolish an executive
department or bureau, or to create a new one. As a consequence, the alleged power of the President to
create municipal corporations would necessarily connote the exercise by him of an authority even greater
than that of control which he has over the executive departments, bureaus or offices. In other words,
Section 68 of the Revised Administrative Code does not merely fail to comply with the constitutional
mandate above quoted. Instead of giving the President less power over local governments than that vested
in him over the executive departments, bureaus or offices, it reverses the process and does the exact
opposite, by conferring upon him more power over municipal corporations than that which he has over
said executive departments, bureaus or offices.
In short, even if it did entail an undue delegation of legislative powers, as it certainly does, said Section
68, as part of the Revised Administrative Code, approved on March 10, 1917, must be deemed repealed by
the subsequent adoption of the Constitution, in 1935, which is utterly incompatible and inconsistent with
said statutory enactment.7
There are only two (2) other points left for consideration, namely, respondent's claim (a) that "not all the
proper parties" — referring to the officers of the newly created municipalities — "have been impleaded in
this case," and (b) that "the present petition is premature."
64
As regards the first point, suffice it to say that the records do not show, and the parties do not claim, that
the officers of any of said municipalities have been appointed or elected and assumed office. At any rate,
the Solicitor General, who has appeared on behalf of respondent Auditor General, is the officer authorized
by law "to act and represent the Government of the Philippines, its offices and agents, in any official
investigation, proceeding or matter requiring the services of a lawyer" (Section 1661, Revised
Administrative Code), and, in connection with the creation of the aforementioned municipalities, which
involves a political, not proprietary, function, said local officials, if any, are mere agents or representatives
of the national government. Their interest in the case at bar has, accordingly, been, in effect, duly
represented.8
With respect to the second point, respondent alleges that he has not as yet acted on any of the executive
order & in question and has not intimated how he would act in connection therewith. It is, however, a
matter of common, public knowledge, subject to judicial cognizance, that the President has, for many
years, issued executive orders creating municipal corporations and that the same have been organized and
in actual operation, thus indicating, without peradventure of doubt, that the expenditures incidental thereto
have been sanctioned, approved or passed in audit by the General Auditing Office and its officials. There
is no reason to believe, therefore, that respondent would adopt a different policy as regards the new
municipalities involved in this case, in the absence of an allegation to such effect, and none has been made
by him.
WHEREFORE, the Executive Orders in question are hereby declared null and void ab initio and the
respondent permanently restrained from passing in audit any expenditure of public funds in
implementation of said Executive Orders or any disbursement by the municipalities above referred to. It is
so ordered.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera and Dizon, JJ., concur.
Zaldivar, J., took no part.
TEST OF DELEGATION
US VS ANG TANG HO
At its special session of 1919, the Philippine Legislature passed Act No. 2868, entitled "An Act penalizing
the monopoly and holding of, and speculation in, palay, rice, and corn under extraordinary circumstances,
regulating the distribution and sale thereof, and authorizing the Governor-General, with the consent of the
Council of State, to issue the necessary rules and regulations therefor, and making an appropriation for this
purpose," the material provisions of which are as follows:
Section 1. The Governor-General is hereby authorized, whenever, for any cause, conditions arise resulting
in an extraordinary rise in the price of palay, rice or corn, to issue and promulgate, with the consent of the
Council of State, temporary rules and emergency measures for carrying out the purpose of this Act, to wit:
(a) To prevent the monopoly and hoarding of, and speculation in, palay, rice or corn.
(b) To establish and maintain a government control of the distribution or sale of the commodities referred
to or have such distribution or sale made by the Government itself.

(c) To fix, from time to time the quantities of palay rice, or corn that a company or individual may acquire,
and the maximum sale price that the industrial or merchant may demand.
(d) . . .
SEC. 2. It shall be unlawful to destroy, limit, prevent or in any other manner obstruct the production or
milling of palay, rice or corn for the purpose of raising the prices thereof; to corner or hoard said products
as defined in section three of this Act; . . .
Section 3 defines what shall constitute a monopoly or hoarding of palay, rice or corn within the meaning
of this Act, but does not specify the price of rice or define any basic for fixing the price.
SEC. 4. The violations of any of the provisions of this Act or of the regulations, orders and decrees
promulgated in accordance therewith shall be punished by a fine of not more than five thousands pesos, or
by imprisonment for not more than two years, or both, in the discretion of the court: Provided, That in the
case of companies or corporations the manager or administrator shall be criminally liable.
SEC. 7. At any time that the Governor-General, with the consent of the Council of State, shall consider
that the public interest requires the application of the provisions of this Act, he shall so declare by
proclamation, and any provisions of other laws inconsistent herewith shall from then on be temporarily
suspended.
Upon the cessation of the reasons for which such proclamation was issued, the Governor-General, with the
consent of the Council of State, shall declare the application of this Act to have likewise terminated, and
all laws temporarily suspended by virtue of the same shall again take effect, but such termination shall not
prevent the prosecution of any proceedings or cause begun prior to such termination, nor the filing of any
proceedings for an offense committed during the period covered by the Governor-General's proclamation.
August 1, 1919, the Governor-General issued a proclamation fixing the price at which rice should be sold.
August 8, 1919, a complaint was filed against the defendant, Ang Tang Ho, charging him with the sale of
rice at an excessive price as follows:
The undersigned accuses Ang Tang Ho of a violation of Executive Order No. 53 of the Governor-General
of the Philippines, dated the 1st of August, 1919, in relation with the provisions of sections 1, 2 and 4 of
Act No. 2868, committed as follows:
That on or about the 6th day of August, 1919, in the city of Manila, Philippine Islands, the said Ang Tang
Ho, voluntarily, illegally and criminally sold to Pedro Trinidad, one ganta of rice at the price of eighty
centavos (P.80), which is a price greater than that fixed by Executive Order No. 53 of the Governor-
General of the Philippines, dated the 1st of August, 1919, under the authority of section 1 of Act No. 2868.
Contrary to law.
Upon this charge, he was tried, found guilty and sentenced to five months' imprisonment and to pay a fine
of P500, from which he appealed to this court, claiming that the lower court erred in finding Executive
Order No. 53 of 1919, to be of any force and effect, in finding the accused guilty of the offense charged,
and in imposing the sentence.
The official records show that the Act was to take effect on its approval; that it was approved July 30,
1919; that the Governor-General issued his proclamation on the 1st of August, 1919; and that the law was
first published on the 13th of August, 1919; and that the proclamation itself was first published on the 20th
of August, 1919.
65
The question here involves an analysis and construction of Act No. 2868, in so far as it authorizes the
Governor-General to fix the price at which rice should be sold. It will be noted that section 1 authorizes
the Governor-General, with the consent of the Council of State, for any cause resulting in an extraordinary
rise in the price of palay, rice or corn, to issue and promulgate temporary rules and emergency measures
for carrying out the purposes of the Act. By its very terms, the promulgation of temporary rules and
emergency measures is left to the discretion of the Governor-General. The Legislature does not undertake
to specify or define under what conditions or for what reasons the Governor-General shall issue the
proclamation, but says that it may be issued "for any cause," and leaves the question as to what is "any
cause" to the discretion of the Governor-General. The Act also says: "For any cause, conditions arise
resulting in an extraordinary rise in the price of palay, rice or corn." The Legislature does not specify or
define what is "an extraordinary rise." That is also left to the discretion of the Governor-General. The Act
also says that the Governor-General, "with the consent of the Council of State," is authorized to issue and
promulgate "temporary rules and emergency measures for carrying out the purposes of this Act." It does
not specify or define what is a temporary rule or an emergency measure, or how long such temporary rules
or emergency measures shall remain in force and effect, or when they shall take effect. That is to say, the
Legislature itself has not in any manner specified or defined any basis for the order, but has left it to the
sole judgement and discretion of the Governor-General to say what is or what is not "a cause," and what is
or what is not "an extraordinary rise in the price of rice," and as to what is a temporary rule or an
emergency measure for the carrying out the purposes of the Act. Under this state of facts, if the law is
valid and the Governor-General issues a proclamation fixing the minimum price at which rice should be
sold, any dealer who, with or without notice, sells rice at a higher price, is a criminal. There may not have
been any cause, and the price may not have been extraordinary, and there may not have been an
emergency, but, if the Governor-General found the existence of such facts and issued a proclamation, and
rice is sold at any higher price, the seller commits a crime.
By the organic law of the Philippine Islands and the Constitution of the United States all powers are vested
in the Legislative, Executive and Judiciary. It is the duty of the Legislature to make the law; of the
Executive to execute the law; and of the Judiciary to construe the law. The Legislature has no authority to
execute or construe the law, the Executive has no authority to make or construe the law, and the Judiciary
has no power to make or execute the law. Subject to the Constitution only, the power of each branch is
supreme within its own jurisdiction, and it is for the Judiciary only to say when any Act of the Legislature
is or is not constitutional. Assuming, without deciding, that the Legislature itself has the power to fix the
price at which rice is to be sold, can it delegate that power to another, and, if so, was that power legally
delegated by Act No. 2868? In other words, does the Act delegate legislative power to the Governor-
General? By the Organic Law, all Legislative power is vested in the Legislature, and the power conferred
upon the Legislature to make laws cannot be delegated to the Governor-General, or any one else. The
Legislature cannot delegate the legislative power to enact any law. If Act no 2868 is a law unto itself and
within itself, and it does nothing more than to authorize the Governor-General to make rules and
regulations to carry the law into effect, then the Legislature itself created the law. There is no delegation of
power and it is valid. On the other hand, if the Act within itself does not define crime, and is not a law,
and some legislative act remains to be done to make it a law or a crime, the doing of which is vested in the
Governor-General, then the Act is a delegation of legislative power, is unconstitutional and void.
The Supreme Court of the United States in what is known as the Granger Cases (94 U.S., 183-187; 24 L.
ed., 94), first laid down the rule:
Railroad companies are engaged in a public employment affecting the public interest and, under the
decision in Munn vs. Ill., ante, 77, are subject to legislative control as to their rates of fare and freight
unless protected by their charters.
The Illinois statute of Mar. 23, 1874, to establish reasonable maximum rates of charges for the
transportation of freights and passengers on the different railroads of the State is not void as being
repugnant to the Constitution of the United States or to that of the State.

It was there for the first time held in substance that a railroad was a public utility, and that, being a public
utility, the State had power to establish reasonable maximum freight and passenger rates. This was
followed by the State of Minnesota in enacting a similar law, providing for, and empowering, a railroad
commission to hear and determine what was a just and reasonable rate. The constitutionality of this law
was attacked and upheld by the Supreme Court of Minnesota in a learned and exhaustive opinion by
Justice Mitchell, in the case of State vs. Chicago, Milwaukee & St. Paul ry. Co. (38 Minn., 281), in which
the court held:
Regulations of railway tariffs — Conclusiveness of commission's tariffs. — Under Laws 1887, c. 10, sec.
8, the determination of the railroad and warehouse commission as to what are equal and reasonable fares
and rates for the transportation of persons and property by a railway company is conclusive, and, in
proceedings by mandamus to compel compliance with the tariff of rates recommended and published by
them, no issue can be raised or inquiry had on that question.
Same — constitution — Delegation of power to commission. — The authority thus given to the
commission to determine, in the exercise of their discretion and judgement, what are equal and reasonable
rates, is not a delegation of legislative power.
It will be noted that the law creating the railroad commission expressly provides —
That all charges by any common carrier for the transportation of passengers and property shall be equal
and reasonable.
With that as a basis for the law, power is then given to the railroad commission to investigate all the facts,
to hear and determine what is a just and reasonable rate. Even then that law does not make the violation of
the order of the commission a crime. The only remedy is a civil proceeding. It was there held —
That the legislative itself has the power to regulate railroad charges is now too well settled to require either
argument or citation of authority.
The difference between the power to say what the law shall be, and the power to adopt rules and
regulations, or to investigate and determine the facts, in order to carry into effect a law already passed, is
apparent. The true distinction is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and the conferring an authority or discretion to be exercised
under and in pursuance of the law.
The legislature enacts that all freights rates and passenger fares should be just and reasonable. It had the
undoubted power to fix these rates at whatever it deemed equal and reasonable.
They have not delegated to the commission any authority or discretion as to what the law shall be, —
which would not be allowable, — but have merely conferred upon it an authority and discretion, to be
exercised in the execution of the law, and under and in pursuance of it, which is entirely permissible. The
legislature itself has passed upon the expediency of the law, and what is shall be. The commission is
intrusted with no authority or discretion upon these questions. It can neither make nor unmake a single
provision of law. It is merely charged with the administration of the law, and with no other power.
The delegation of legislative power was before the Supreme Court of Wisconsin in Dowling vs.
Lancoshire Ins. Co. (92 Wis., 63). The opinion says:
"The true distinction is between the delegation of power to make the law, which necessarily involves a
discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised
under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made."
66
The act, in our judgment, wholly fails to provide definitely and clearly what the standard policy should
contain, so that it could be put in use as a uniform policy required to take the place of all others, without
the determination of the insurance commissioner in respect to maters involving the exercise of a
legislative discretion that could not be delegated, and without which the act could not possibly be put in
use as an act in confirmity to which all fire insurance policies were required to be issued.
The result of all the cases on this subject is that a law must be complete, in all its terms and provisions,
when it leaves the legislative branch of the government, and nothing must be left to the judgement of the
electors or other appointee or delegate of the legislature, so that, in form and substance, it is a law in all its
details in presenti, but which may be left to take effect in futuro, if necessary, upon the ascertainment of
any prescribed fact or event.
The delegation of legislative power was before the Supreme Court in United States vs. Grimaud (220 U.S.,
506; 55 L. ed., 563), where it was held that the rules and regulations of the Secretary of Agriculture as to a
trespass on government land in a forest reserve were valid constitutional. The Act there provided that the
Secretary of Agriculture ". . . may make such rules and regulations and establish such service as will
insure the object of such reservations; namely, to regulate their occupancy and use, and to preserve the
forests thereon from destruction; and any violation of the provisions of this act or such rules and
regulations shall be punished, . . ."
The brief of the United States Solicitor-General says:
In refusing permits to use a forest reservation for stock grazing, except upon stated terms or in stated
ways, the Secretary of Agriculture merely assert and enforces the proprietary right of the United States
over land which it owns. The regulation of the Secretary, therefore, is not an exercise of legislative, or
even of administrative, power; but is an ordinary and legitimate refusal of the landowner's authorized
agent to allow person having no right in the land to use it as they will. The right of proprietary control is
altogether different from governmental authority.
The opinion says:
From the beginning of the government, various acts have been passed conferring upon executive officers
power to make rules and regulations, — not for the government of their departments, but for administering
the laws which did govern. None of these statutes could confer legislative power. But when Congress had
legislated power. But when Congress had legislated and indicated its will, it could give to those who were
to act under such general provisions "power to fill up the details" by the establishment of administrative
rules and regulations, the violation of which could be punished by fine or imprisonment fixed by
Congress, or by penalties fixed by Congress, or measured by the injury done.
That "Congress cannot delegate legislative power is a principle universally recognized as vital to the
integrity and maintenance of the system of government ordained by the Constitution."
If, after the passage of the act and the promulgation of the rule, the defendants drove and grazed their
sheep upon the reserve, in violation of the regulations, they were making an unlawful use of the
government's property. In doing so they thereby made themselves liable to the penalty imposed by
Congress.
The subjects as to which the Secretary can regulate are defined. The lands are set apart as a forest reserve.
He is required to make provisions to protect them from depredations and from harmful uses. He is
authorized 'to regulate the occupancy and use and to preserve the forests from destruction.' A violation of
reasonable rules regulating the use and occupancy of the property is made a crime, not by the Secretary,
but by Congress."

The above are leading cases in the United States on the question of delegating legislative power. It will be
noted that in the "Granger Cases," it was held that a railroad company was a public corporation, and that a
railroad was a public utility, and that, for such reasons, the legislature had the power to fix and determine
just and reasonable rates for freight and passengers.
The Minnesota case held that, so long as the rates were just and reasonable, the legislature could delegate
the power to ascertain the facts and determine from the facts what were just and reasonable rates,. and that
in vesting the commission with such power was not a delegation of legislative power.
The Wisconsin case was a civil action founded upon a "Wisconsin standard policy of fire insurance," and
the court held that "the act, . . . wholly fails to provide definitely and clearly what the standard policy
should contain, so that it could be put in use as a uniform policy required to take the place of all others,
without the determination of the insurance commissioner in respect to matters involving the exercise of a
legislative discretion that could not be delegated."
The case of the United States Supreme Court, supra dealt with rules and regulations which were
promulgated by the Secretary of Agriculture for Government land in the forest reserve.
These decisions hold that the legislative only can enact a law, and that it cannot delegate it legislative
authority.
The line of cleavage between what is and what is not a delegation of legislative power is pointed out and
clearly defined. As the Supreme Court of Wisconsin says:
That no part of the legislative power can be delegated by the legislature to any other department of the
government, executive or judicial, is a fundamental principle in constitutional law, essential to the
integrity and maintenance of the system of government established by the constitution.
Where an act is clothed with all the forms of law, and is complete in and of itself, it may be provided that
it shall become operative only upon some certain act or event, or, in like manner, that its operation shall be
suspended.
The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to
determine some fact or state of things upon which the law makes, or intends to make, its own action to
depend.
The Village of Little Chute enacted an ordinance which provides:
All saloons in said village shall be closed at 11 o'clock P.M. each day and remain closed until 5 o'clock on
the following morning, unless by special permission of the president.
Construing it in 136 Wis., 526; 128 A. S. R., 1100,1 the Supreme Court of that State says:
We regard the ordinance as void for two reasons; First, because it attempts to confer arbitrary power upon
an executive officer, and allows him, in executing the ordinance, to make unjust and groundless
discriminations among persons similarly situated; second, because the power to regulate saloons is a law-
making power vested in the village board, which cannot be delegated. A legislative body cannot delegate
to a mere administrative officer power to make a law, but it can make a law with provisions that it shall go
into effect or be suspended in its operations upon the ascertainment of a fact or state of facts by an
administrative officer or board. In the present case the ordinance by its terms gives power to the president
to decide arbitrary, and in the exercise of his own discretion, when a saloon shall close. This is an attempt
to vest legislative discretion in him, and cannot be sustained.
67
The legal principle involved there is squarely in point here.
It must be conceded that, after the passage of act No. 2868, and before any rules and regulations were
promulgated by the Governor-General, a dealer in rice could sell it at any price, even at a peso per "ganta,"
and that he would not commit a crime, because there would be no law fixing the price of rice, and the sale
of it at any price would not be a crime. That is to say, in the absence of a proclamation, it was not a crime
to sell rice at any price. Hence, it must follow that, if the defendant committed a crime, it was because the
Governor-General issued the proclamation. There was no act of the Legislature making it a crime to sell
rice at any price, and without the proclamation, the sale of it at any price was to a crime.
The Executive order2 provides:
(5) The maximum selling price of palay, rice or corn is hereby fixed, for the time being as follows:
In Manila —
Palay at P6.75 per sack of 57½ kilos, or 29 centavos per ganta.
Rice at P15 per sack of 57½ kilos, or 63 centavos per ganta.
Corn at P8 per sack of 57½ kilos, or 34 centavos per ganta.
In the provinces producing palay, rice and corn, the maximum price shall be the Manila price less the cost
of transportation from the source of supply and necessary handling expenses to the place of sale, to be
determined by the provincial treasurers or their deputies.
In provinces, obtaining their supplies from Manila or other producing provinces, the maximum price shall
be the authorized price at the place of supply or the Manila price as the case may be, plus the
transportation cost, from the place of supply and the necessary handling expenses, to the place of sale, to
be determined by the provincial treasurers or their deputies.
(6) Provincial treasurers and their deputies are hereby directed to communicate with, and execute all
instructions emanating from the Director of Commerce and Industry, for the most effective and proper
enforcement of the above regulations in their respective localities.
The law says that the Governor-General may fix "the maximum sale price that the industrial or merchant
may demand." The law is a general law and not a local or special law.
The proclamation undertakes to fix one price for rice in Manila and other and different prices in other and
different provinces in the Philippine Islands, and delegates the power to determine the other and different
prices to provincial treasurers and their deputies. Here, then, you would have a delegation of legislative
power to the Governor-General, and a delegation by him of that power to provincial treasurers and their
deputies, who "are hereby directed to communicate with, and execute all instructions emanating from the
Director of Commerce and Industry, for the most effective and proper enforcement of the above
regulations in their respective localities." The issuance of the proclamation by the Governor-General was
the exercise of the delegation of a delegated power, and was even a sub delegation of that power.
Assuming that it is valid, Act No. 2868 is a general law and does not authorize the Governor-General to
fix one price of rice in Manila and another price in Iloilo. It only purports to authorize him to fix the price
of rice in the Philippine Islands under a law, which is General and uniform, and not local or special. Under
the terms of the law, the price of rice fixed in the proclamation must be the same all over the Islands.
There cannot be one price at Manila and another at Iloilo. Again, it is a mater of common knowledge, and

of which this court will take judicial notice, that there are many kinds of rice with different and
corresponding market values, and that there is a wide range in the price, which varies with the grade and
quality. Act No. 2868 makes no distinction in price for the grade or quality of the rice, and the
proclamation, upon which the defendant was tried and convicted, fixes the selling price of rice in Manila
"at P15 per sack of 57½ kilos, or 63 centavos per ganta," and is uniform as to all grades of rice, and says
nothing about grade or quality. Again, it will be noted that the law is confined to palay, rice and corn.
They are products of the Philippine Islands. Hemp, tobacco, coconut, chickens, eggs, and many other
things are also products. Any law which single out palay, rice or corn from the numerous other products of
the Islands is not general or uniform, but is a local or special law. If such a law is valid, then by the same
principle, the Governor-General could be authorized by proclamation to fix the price of meat, eggs,
chickens, coconut, hemp, and tobacco, or any other product of the Islands. In the very nature of things, all
of that class of laws should be general and uniform. Otherwise, there would be an unjust discrimination of
property rights, which, under the law, must be equal and inform. Act No. 2868 is nothing more than a
floating law, which, in the discretion and by a proclamation of the Governor-General, makes it a floating
crime to sell rice at a price in excess of the proclamation, without regard to grade or quality.
When Act No. 2868 is analyzed, it is the violation of the proclamation of the Governor-General which
constitutes the crime. Without that proclamation, it was no crime to sell rice at any price. In other words,
the Legislature left it to the sole discretion of the Governor-General to say what was and what was not
"any cause" for enforcing the act, and what was and what was not "an extraordinary rise in the price of
palay, rice or corn," and under certain undefined conditions to fix the price at which rice should be sold,
without regard to grade or quality, also to say whether a proclamation should be issued, if so, when, and
whether or not the law should be enforced, how long it should be enforced, and when the law should be
suspended. The Legislature did not specify or define what was "any cause," or what was "an extraordinary
rise in the price of rice, palay or corn," Neither did it specify or define the conditions upon which the
proclamation should be issued. In the absence of the proclamation no crime was committed. The alleged
sale was made a crime, if at all, because the Governor-General issued the proclamation. The act or
proclamation does not say anything about the different grades or qualities of rice, and the defendant is
charged with the sale "of one ganta of rice at the price of eighty centavos (P0.80) which is a price greater
than that fixed by Executive order No. 53."
We are clearly of the opinion and hold that Act No. 2868, in so far as it undertakes to authorized the
Governor-General in his discretion to issue a proclamation, fixing the price of rice, and to make the sale of
rice in violation of the price of rice, and to make the sale of rice in violation of the proclamation a crime, is
unconstitutional and void.
It may be urged that there was an extraordinary rise in the price of rice and profiteering, which worked a
severe hardship on the poorer classes, and that an emergency existed, but the question here presented is
the constitutionality of a particular portion of a statute, and none of such matters is an argument for, or
against, its constitutionality.
The Constitution is something solid, permanent an substantial. Its stability protects the life, liberty and
property rights of the rich and the poor alike, and that protection ought not to change with the wind or any
emergency condition. The fundamental question involved in this case is the right of the people of the
Philippine Islands to be and live under a republican form of government. We make the broad statement
that no state or nation, living under republican form of government, under the terms and conditions
specified in Act No. 2868, has ever enacted a law delegating the power to any one, to fix the price at
which rice should be sold. That power can never be delegated under a republican form of government.
In the fixing of the price at which the defendant should sell his rice, the law was not dealing with
government property. It was dealing with private property and private rights, which are sacred under the
Constitution. If this law should be sustained, upon the same principle and for the same reason, the
68
Legislature could authorize the Governor-General to fix the price of every product or commodity in the
Philippine Islands, and empower him to make it a crime to sell any product at any other or different price.
It may be said that this was a war measure, and that for such reason the provision of the Constitution
should be suspended. But the Stubborn fact remains that at all times the judicial power was in full force
and effect, and that while that power was in force and effect, such a provision of the Constitution could
not be, and was not, suspended even in times of war. It may be claimed that during the war, the United
States Government undertook to, and did, fix the price at which wheat and flour should be bought and
sold, and that is true. There, the United States had declared war, and at the time was at war with other
nations, and it was a war measure, but it is also true that in doing so, and as a part of the same act, the
United States commandeered all the wheat and flour, and took possession of it, either actual or
constructive, and the government itself became the owner of the wheat and flour, and fixed the price to be
paid for it. That is not this case. Here the rice sold was the personal and private property of the defendant,
who sold it to one of his customers. The government had not bought and did not claim to own the rice, or
have any interest in it, and at the time of the alleged sale, it was the personal, private property of the
defendant. It may be that the law was passed in the interest of the public, but the members of this court
have taken on solemn oath to uphold and defend the Constitution, and it ought not to be construed to meet
the changing winds or emergency conditions. Again, we say that no state or nation under a republican
form of government ever enacted a law authorizing any executive, under the conditions states, to fix the
price at which a price person would sell his own rice, and make the broad statement that no decision of
any court, on principle or by analogy, will ever be found which sustains the constitutionality of the
particular portion of Act No. 2868 here in question. By the terms of the Organic Act, subject only to
constitutional limitations, the power to legislate and enact laws is vested exclusively in the Legislative,
which is elected by a direct vote of the people of the Philippine Islands. As to the question here involved,
the authority of the Governor-General to fix the maximum price at which palay, rice and corn may be sold
in the manner power in violation of the organic law.
This opinion is confined to the particular question here involved, which is the right of the Governor-
General, upon the terms and conditions stated in the Act, to fix the price of rice and make it a crime to sell
it at a higher price, and which holds that portions of the Act unconstitutional. It does not decide or
undertake to construe the constitutionality of any of the remaining portions of the Act.
The judgment of the lower court is reversed, and the defendant discharged. So ordered.
Araullo, C.J., Johnson, Street and Ostrand, JJ., concur.
Romualdez, J., concurs in the result.
Separate Opinions
MALCOLM, J., concurring:
I concur in the result for reasons which reach both the facts and the law. In the first place, as to the facts,
— one cannot be convicted ex post facto of a violation of a law and of an executive order issued pursuant
to the law, when the alleged violation thereof occurred on August 6, 1919, while the Act of the Legislature
in question was not published until August 13, 1919, and the order was not published until August 20,
1919. In the second place, as to the law, — one cannot be convicted of a violation of a law or of an order
issued pursuant to the law when both the law and the order fail to set up an ascertainable standard of guilt.
(U.S. vs. Cohen Grocery Company [1921], 255 U.S., 81, holding section 4 of the Federal Food Control
Act of August 10, 1917, as amended, invalid.)
In order that there may not be any misunderstanding of our position, I would respectfully invite attention
to the decision of the United States Supreme Court in German Alliance Ins. Co. vs. Lewis ([1914, 233

U.S., 389), concerning the legislative regulation of the prices charged by business affected with a public
interest, and to another decision of the United States Supreme Court, that of Marshall Field & Co. vs.
Clark ([1892], 143 U.S., 649), which adopts as its own the principles laid down in the case of Locke's
Appeal ([1873], 72 Pa. St., 491), namely; "The Legislature cannot delegate its power to make a law; but it
can make a law to delegate a power to determine some fact or state of things upon which the law makes,
or intends to make, its own action depend. To deny this would be to stop the wheels of government. There
are many things upon which wise and useful legislation must depend which cannot be known to the law-
making power, and must, therefore, be a subject of inquiry and determination outside of the halls of
legislation."
TATAD VS SECRETARY OF THE DEPT
The petitions at bar challenge the constitutionality of Republic Act No. 8180 entitled "An Act
Deregulating the Downstream Oil Industry and For Other Purposes".1 R.A. No. 8180 ends twenty six (26)
years of government regulation of the downstream oil industry. Few cases carry a surpassing importance
on the life of every Filipino as these petitions for the upswing and downswing of our economy materially
depend on the oscillation of oil.
First, the facts without the fat. Prior to 1971, there was no government agency regulating the oil industry
other than those dealing with ordinary commodities. Oil companies were free to enter and exit the market
without any government interference. There were four (4) refining companies (Shell, Caltex, Bataan
Refining Company and Filoil Refining) and six (6) petroleum marketing companies (Esso, Filoil, Caltex,
Getty, Mobil and Shell), then operating in the country.2
In 1971, the country was driven to its knees by a crippling oil crisis. The government, realizing that
petroleum and its products are vital to national security and that their continued supply at reasonable
prices is essential to the general welfare, enacted the Oil Industry Commission Act.3 It created the Oil
Industry Commission (OIC) to regulate the business of importing, exporting, re-exporting, shipping,
transporting, processing, refining, storing, distributing, marketing and selling crude oil, gasoline, kerosene,
gas and other refined petroleum products. The OIC was vested with the power to fix the market prices of
petroleum products, to regulate the capacities of refineries, to license new refineries and to regulate the
operations and trade practices of the industry.4
In addition to the creation of the OIC, the government saw the imperious need for a more active role of
Filipinos in the oil industry. Until the early seventies, the downstream oil industry was controlled by
multinational companies. All the oil refineries and marketing companies were owned by foreigners whose
economic interests did not always coincide with the interest of the Filipino. Crude oil was transported to
the country by foreign-controlled tankers. Crude processing was done locally by foreign-owned refineries
and petroleum products were marketed through foreign-owned retail outlets. On November 9, 1973,
President Ferdinand E. Marcos boldly created the Philippine National Oil Corporation (PNOC) to break
the control by foreigners of our oil industry.5 PNOC engaged in the business of refining, marketing,
shipping, transporting, and storing petroleum. It acquired ownership of ESSO Philippines and Filoil to
serve as its marketing arm. It bought the controlling shares of Bataan Refining Corporation, the largest
refinery in the country.6 PNOC later put up its own marketing subsidiary — Petrophil. PNOC operated
under the business name PETRON Corporation. For the first time, there was a Filipino presence in the
Philippine oil market.
In 1984, President Marcos through Section 8 of Presidential Decree No. 1956, created the Oil Price
Stabilization Fund (OPSF) to cushion the effects of frequent changes in the price of oil caused by
exchange rate adjustments or increase in the world market prices of crude oil and imported petroleum
products. The fund is used (1) to reimburse the oil companies for cost increases in crude oil and imported
69
petroleum products resulting from exchange rate adjustment and/or increase in world market prices of
crude oil, and (2) to reimburse oil companies for cost underrecovery incurred as a result of the reduction
of domestic prices of petroleum products. Under the law, the OPSF may be sourced from:
1. any increase in the tax collection from ad valorem tax or customs duty imposed on petroleum
products subject to tax under P.D. No. 1956 arising from exchange rate adjustment,
2. any increase in the tax collection as a result of the lifting of tax exemptions of government
corporations, as may be determined by the Minister of Finance in consultation with the Board of Energy,
3. any additional amount to be imposed on petroleum products to augment the resources of the
fund through an appropriate order that may be issued by the Board of Energy requiring payment of
persons or companies engaged in the business of importing, manufacturing and/or marketing petroleum
products, or
4. any resulting peso costs differentials in case the actual peso costs paid by oil companies in the
importation of crude oil and petroleum products is less than the peso costs computed using the reference
foreign exchange rate as fixed by the Board of Energy.7
By 1985, only three (3) oil companies were operating in the country — Caltex, Shell and the government-
owned PNOC.
In May, 1987, President Corazon C. Aquino signed Executive Order No. 172 creating the Energy
Regulatory Board to regulate the business of importing, exporting, re-exporting, shipping, transporting,
processing, refining, marketing and distributing energy resources "when warranted and only when public
necessity requires." The Board had the following powers and functions:
1. Fix and regulate the prices of petroleum products;
2. Fix and regulate the rate schedule or prices of piped gas to be charged by duly franchised gas
companies which distribute gas by means of underground pipe system;
3. Fix and regulate the rates of pipeline concessionaries under the provisions of R.A. No. 387, as
amended . . . ;
4. Regulate the capacities of new refineries or additional capacities of existing refineries and
license refineries that may be organized after the issuance of (E.O. No. 172) under such terms and
conditions as are consistent with the national interest; and
5. Whenever the Board has determined that there is a shortage of any petroleum product, or when
public interest so requires, it may take such steps as it may consider necessary, including the temporary
adjustment of the levels of prices of petroleum products and the payment to the Oil Price Stabilization
Fund . . . by persons or entities engaged in the petroleum industry of such amounts as may be determined
by the Board, which may enable the importer to recover its cost of importation.8
On December 9, 1992, Congress enacted R.A. No. 7638 which created the Department of Energy to
prepare, integrate, coordinate, supervise and control all plans, programs, projects, and activities of the
government in relation to energy exploration, development, utilization, distribution and conservation.9
The thrust of the Philippine energy program under the law was toward privatization of government
agencies related to energy, deregulation of the power and energy industry and reduction of dependency on
oil-fired plants.10 The law also aimed to encourage free and active participation and investment by the
private sector in all energy activities. Section 5(e) of the law states that "at the end of four (4) years from

the effectivity of this Act, the Department shall, upon approval of the President, institute the programs and
timetable of deregulation of appropriate energy projects and activities of the energy industry."
Pursuant to the policies enunciated in R.A. No. 7638, the government approved the privatization of Petron
Corporation in 1993. On December 16, 1993, PNOC sold 40% of its equity in Petron Corporation to the
Aramco Overseas Company.
In March 1996, Congress took the audacious step of deregulating the downstream oil industry. It enacted
R.A. No. 8180, entitled the "Downstream Oil Industry Deregulation Act of 1996." Under the deregulated
environment, "any person or entity may import or purchase any quantity of crude oil and petroleum
products from a foreign or domestic source, lease or own and operate refineries and other downstream oil
facilities and market such crude oil or use the same for his own requirement," subject only to monitoring
by the Department of
Energy.11
The deregulation process has two phases: the transition phase and the full deregulation phase. During the
transition phase, controls of the non-pricing aspects of the oil industry were to be lifted. The following
were to be accomplished: (1) liberalization of oil importation, exportation, manufacturing, marketing and
distribution, (2) implementation of an automatic pricing mechanism, (3) implementation of an automatic
formula to set margins of dealers and rates of haulers, water transport operators and pipeline
concessionaires, and (4) restructuring of oil taxes. Upon full deregulation, controls on the price of oil and
the foreign exchange cover were to be lifted and the OPSF was to be abolished.
The first phase of deregulation commenced on August 12, 1996.
On February 8, 1997, the President implemented the full deregulation of the Downstream Oil Industry
through E.O. No. 372.
The petitions at bar assail the constitutionality of various provisions of R.A No. 8180 and E.O. No. 372.
In G.R. No. 124360, petitioner Francisco S. Tatad seeks the annulment of section 5(b) of R.A. No. 8180.
Section 5(b) provides:
b) Any law to the contrary notwithstanding and starting with the effectivity of this Act, tariff duty
shall be imposed and collected on imported crude oil at the rate of three percent (3%) and imported refined
petroleum products at the rate of seven percent (7%), except fuel oil and LPG, the rate for which shall be
the same as that for imported crude oil: Provided, That beginning on January 1, 2004 the tariff rate on
imported crude oil and refined petroleum products shall be the same: Provided, further, That this provision
may be amended only by an Act of Congress.
The petition is anchored on three arguments:
First, that the imposition of different tariff rates on imported crude oil and imported refined petroleum
products violates the equal protection clause. Petitioner contends that the 3%-7% tariff differential unduly
favors the three existing oil refineries and discriminates against prospective investors in the downstream
oil industry who do not have their own refineries and will have to source refined petroleum products from
abroad.
Second, that the imposition of different tariff rates does not deregulate the downstream oil industry but
instead controls the oil industry, contrary to the avowed policy of the law. Petitioner avers that the tariff
differential between imported crude oil and imported refined petroleum products bars the entry of other
players in the oil industry because it effectively protects the interest of oil companies with existing
refineries. Thus, it runs counter to the objective of the law "to foster a truly competitive market."
70
Third, that the inclusion of the tariff provision in section 5(b) of R.A. No. 8180 violates Section 26(1)
Article VI of the Constitution requiring every law to have only one subject which shall be expressed in its
title. Petitioner contends that the imposition of tariff rates in section 5(b) of R.A. No. 8180 is foreign to the
subject of the law which is the deregulation of the downstream oil industry.
In G.R. No. 127867, petitioners Edcel C. Lagman, Joker P. Arroyo, Enrique Garcia, Wigberto Tanada,
Flag Human Rights Foundation, Inc., Freedom from Debt Coalition (FDC) and Sanlakas contest the
constitutionality of section 15 of R.A. No. 8180 and E.O. No. 392. Section 15 provides:
Sec. 15. Implementation of Full Deregulation. — Pursuant to Section 5(e) of Republic Act No. 7638,
the DOE shall, upon approval of the President, implement the full deregulation of the downstream oil
industry not later than March 1997. As far as practicable, the DOE shall time the full deregulation when
the prices of crude oil and petroleum products in the world market are declining and when the exchange
rate of the peso in relation to the US dollar is stable. Upon the implementation of the full deregulation as
provided herein, the transition phase is deemed terminated and the following laws are deemed repealed:
xxx xxx xxx
E.O. No. 372 states in full, viz.:
WHEREAS, Republic Act No. 7638, otherwise known as the "Department of Energy Act of 1992,"
provides that, at the end of four years from its effectivity last December 1992, "the Department (of
Energy) shall, upon approval of the President, institute the programs and time table of deregulation of
appropriate energy projects and activities of the energy sector;"
WHEREAS, Section 15 of Republic Act No. 8180, otherwise known as the "Downstream Oil Industry
Deregulation Act of 1996," provides that "the DOE shall, upon approval of the President, implement full
deregulation of the downstream oil industry not later than March, 1997. As far as practicable, the DOE
shall time the full deregulation when the prices of crude oil and petroleum products in the world market
are declining and when the exchange rate of the peso in relation to the US dollar is stable;"
WHEREAS, pursuant to the recommendation of the Department of Energy, there is an imperative need to
implement the full deregulation of the downstream oil industry because of the following recent
developments: (i) depletion of the buffer fund on or about 7 February 1997 pursuant to the Energy
Regulatory Board's Order dated 16 January 1997; (ii) the prices of crude oil had been stable at $21-$23 per
barrel since October 1996 while prices of petroleum products in the world market had been stable since
mid-December of last year. Moreover, crude oil prices are beginning to soften for the last few days while
prices of some petroleum products had already declined; and (iii) the exchange rate of the peso in relation
to the US dollar has been stable for the past twelve (12) months, averaging at around P26.20 to one US
dollar;
WHEREAS, Executive Order No. 377 dated 31 October 1996 provides for an institutional framework for
the administration of the deregulated industry by defining the functions and responsibilities of various
government agencies;
WHEREAS, pursuant to Republic Act No. 8180, the deregulation of the industry will foster a truly
competitive market which can better achieve the social policy objectives of fair prices and adequate,
continuous supply of environmentally-clean and high quality petroleum products;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by the powers
vested in me by law, do hereby declare the full deregulation of the downstream oil industry.

In assailing section 15 of R.A. No. 8180 and E.O. No. 392, petitioners offer the following submissions:
First, section 15 of R.A. No. 8180 constitutes an undue delegation of legislative power to the President
and the Secretary of Energy because it does not provide a determinate or determinable standard to guide
the Executive Branch in determining when to implement the full deregulation of the downstream oil
industry. Petitioners contend that the law does not define when it is practicable for the Secretary of Energy
to recommend to the President the full deregulation of the downstream oil industry or when the President
may consider it practicable to declare full deregulation. Also, the law does not provide any specific
standard to determine when the prices of crude oil in the world market are considered to be declining nor
when the exchange rate of the peso to the US dollar is considered stable.
Second, petitioners aver that E.O. No. 392 implementing the full deregulation of the downstream oil
industry is arbitrary and unreasonable because it was enacted due to the alleged depletion of the OPSF
fund — a condition not found in R.A. No. 8180.
Third, section 15 of R.A. No. 8180 and E.O. No. 392 allow the formation of a de facto cartel among the
three existing oil companies — Petron, Caltex and Shell — in violation of the constitutional prohibition
against monopolies, combinations in restraint of trade and unfair competition.
Respondents, on the other hand, fervently defend the constitutionality of R.A. No. 8180 and E.O. No. 392.
In addition, respondents contend that the issues raised by the petitions are not justiciable as they pertain to
the wisdom of the law. Respondents further aver that petitioners have no locus standi as they did not
sustain nor will they sustain direct injury as a result of the implementation of R.A. No. 8180.
The petitions were heard by the Court on September 30, 1997. On October 7, 1997, the Court ordered the
private respondents oil companies "to maintain the status quo and to cease and desist from increasing the
prices of gasoline and other petroleum fuel products for a period of thirty (30) days . . . subject to further
orders as conditions may warrant."
We shall now resolve the petitions on the merit. The petitions raise procedural and substantive issues
bearing on the constitutionality of R.A. No. 8180 and E.O. No. 392. The procedural issues are: (1) whether
or not the petitions raise a justiciable controversy, and (2) whether or not the petitioners have the standing
to assail the validity of the subject law and executive order. The substantive issues are: (1) whether or not
section 5 (b) violates the one title — one subject requirement of the Constitution; (2) whether or not the
same section violates the equal protection clause of the Constitution; (3) whether or not section 15 violates
the constitutional prohibition on undue delegation of power; (4) whether or not E.O. No. 392 is arbitrary
and unreasonable; and (5) whether or not R.A. No. 8180 violates the constitutional prohibition against
monopolies, combinations in restraint of trade and unfair competition.
We shall first tackle the procedural issues. Respondents claim that the avalanche of arguments of the
petitioners assail the wisdom of R.A. No. 8180. They aver that deregulation of the downstream oil
industry is a policy decision made by Congress and it cannot be reviewed, much less be reversed by this
Court. In constitutional parlance, respondents contend that the petitions failed to raise a justiciable
controversy.
Respondents' joint stance is unnoteworthy. Judicial power includes not only the duty of the courts to settle
actual controversies involving rights which are legally demandable and enforceable, but also the duty to
determine whether or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government.12 The courts, as guardians of
the Constitution, have the inherent authority to determine whether a statute enacted by the legislature
transcends the limit imposed by the fundamental law. Where a statute violates the Constitution, it is not
only the right but the duty of the judiciary to declare such act as unconstitutional and void.13 We held in
the recent case of Tanada v. Angara:14
71
xxx xxx xxx
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the
petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute. The question thus posed is judicial rather than political. The duty to adjudicate
remains to assure that the supremacy of the Constitution is upheld. Once a controversy as to the
application or interpretation of a constitutional provision is raised before this Court, it becomes a legal
issue which the Court is bound by constitutional mandate to decide.
Even a sideglance at the petitions will reveal that petitioners have raised constitutional issues which
deserve the resolution of this Court in view of their seriousness and their value as precedents. Our
statement of facts and definition of issues clearly show that petitioners are assailing R.A. No. 8180
because its provisions infringe the Constitution and not because the law lacks wisdom. The principle of
separation of power mandates that challenges on the constitutionality of a law should be resolved in our
courts of justice while doubts on the wisdom of a law should be debated in the halls of Congress. Every
now and then, a law may be denounced in court both as bereft of wisdom and constitutionally infirmed.
Such denunciation will not deny this Court of its jurisdiction to resolve the constitutionality of the said law
while prudentially refusing to pass on its wisdom.
The effort of respondents to question the locus standi of petitioners must also fall on barren ground. In
language too lucid to be misunderstood, this Court has brightlined its liberal stance on a petitioner's locus
standi where the petitioner is able to craft an issue of transcendental significance to the people.15 In
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,16 we stressed:
xxx xxx xxx
Objections to taxpayers' suit for lack of sufficient personality, standing or interest are, however, in the
main procedural matters. Considering the importance to the public of the cases at bar, and in keeping with
the Court's duty, under the 1987 Constitution, to determine whether or not the other branches of
government have kept themselves within the limits of the Constitution and the laws and that they have not
abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken
cognizance of these petitions.
There is not a dot of disagreement between the petitioners and the respondents on the far reaching
importance of the validity of RA No. 8180 deregulating our downstream oil industry. Thus, there is no
good sense in being hypertechnical on the standing of petitioners for they pose issues which are significant
to our people and which deserve our forthright resolution.
We shall now track down the substantive issues. In G.R. No. 124360 where petitioner is Senator Tatad, it
is contended that section 5(b) of R.A. No. 8180 on tariff differential violates the provision17 of the
Constitution requiring every law to have only one subject which should be expressed in its title. We do not
concur with this contention. As a policy, this Court has adopted a liberal construction of the one title —
one subject rule. We have consistently ruled18 that the title need not mirror, fully index or catalogue all
contents and minute details of a law. A law having a single general subject indicated in the title may
contain any number of provisions, no matter how diverse they may be, so long as they are not inconsistent
with or foreign to the general subject, and may be considered in furtherance of such subject by providing
for the method and means of carrying out the general subject.19 We hold that section 5(b) providing for
tariff differential is germane to the subject of R.A. No. 8180 which is the deregulation of the downstream
oil industry. The section is supposed to sway prospective investors to put up refineries in our country and
make them rely less on imported petroleum.20 We shall, however, return to the validity of this provision
when we examine its blocking effect on new entrants to the oil market.

We shall now slide to the substantive issues in G.R. No. 127867. Petitioners assail section 15 of R.A. No.
8180 which fixes the time frame for the full deregulation of the downstream oil industry. We restate its
pertinent portion for emphasis, viz.:
Sec. 15. Implementation of Full Deregulation — Pursuant to section 5(e) of Republic Act No. 7638, the
DOE shall, upon approval of the President, implement the full deregulation of the downstream oil industry
not later than March 1997. As far as practicable, the DOE shall time the full deregulation when the prices
of crude oil and petroleum products in the world market are declining and when the exchange rate of the
peso in relation to the US dollar is stable . . .
Petitioners urge that the phrases "as far as practicable," "decline of crude oil prices in the world market"
and "stability of the peso exchange rate to the US dollar" are ambivalent, unclear and inconcrete in
meaning. They submit that they do not provide the "determinate or determinable standards" which can
guide the President in his decision to fully deregulate the downstream oil industry. In addition, they
contend that E.O. No. 392 which advanced the date of full deregulation is void for it illegally considered
the depletion of the OPSF fund as a factor.
The power of Congress to delegate the execution of laws has long been settled by this Court. As early as
1916 in Compania General de Tabacos de Filipinas vs. The Board of Public Utility Commissioners,21 this
Court thru, Mr. Justice Moreland, held that "the true distinction is between the delegation of power to
make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or
discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done;
to the latter no valid objection can be made." Over the years, as the legal engineering of men's relationship
became more difficult, Congress has to rely more on the practice of delegating the execution of laws to the
executive and other administrative agencies. Two tests have been developed to determine whether the
delegation of the power to execute laws does not involve the abdication of the power to make law itself.
We delineated the metes and bounds of these tests in Eastern Shipping Lines, Inc. VS. POEA,22 thus:
There are two accepted tests to determine whether or not there is a valid delegation of legislative power,
viz: the completeness test and the sufficient standard test. Under the first test, the law must be complete in
all its terms and conditions when it leaves the legislative such that when it reaches the delegate the only
thing he will have to do is to enforce it. Under the sufficient standard test, there must be adequate
guidelines or limitations in the law to map out the boundaries of the delegate's authority and prevent the
delegation from running riot. Both tests are intended to prevent a total transference of legislative authority
to the delegate, who is not allowed to step into the shoes of the legislature and exercise a power essentially
legislative.
The validity of delegating legislative power is now a quiet area in our constitutional landscape. As sagely
observed, delegation of legislative power has become an inevitability in light of the increasing complexity
of the task of government. Thus, courts bend as far back as possible to sustain the constitutionality of laws
which are assailed as unduly delegating legislative powers. Citing Hirabayashi v. United States23 as
authority, Mr. Justice Isagani A. Cruz states "that even if the law does not expressly pinpoint the standard,
the courts will bend over backward to locate the same elsewhere in order to spare the statute, if it can,
from constitutional infirmity."24
Given the groove of the Court's rulings, the attempt of petitioners to strike down section 15 on the ground
of undue delegation of legislative power cannot prosper. Section 15 can hurdle both the completeness test
and the sufficient standard test. It will be noted that Congress expressly provided in R.A. No. 8180 that
full deregulation will start at the end of March 1997, regardless of the occurrence of any event. Full
deregulation at the end of March 1997 is mandatory and the Executive has no discretion to postpone it for
any purported reason. Thus, the law is complete on the question of the final date of full deregulation. The
discretion given to the President is to advance the date of full deregulation before the end of March 1997.
72
Section 15 lays down the standard to guide the judgment of the President — he is to time it as far as
practicable when the prices of crude oil and petroleum products in the world market are declining and
when the exchange rate of the peso in relation to the US dollar is stable.
Petitioners contend that the words "as far as practicable," "declining" and "stable" should have been
defined in R.A. No. 8180 as they do not set determinate or determinable standards. The stubborn
submission deserves scant consideration. The dictionary meanings of these words are well settled and
cannot confuse men of reasonable intelligence. Webster defines "practicable" as meaning possible to
practice or perform, "decline" as meaning to take a downward direction, and "stable" as meaning firmly
established.25 The fear of petitioners that these words will result in the exercise of executive discretion
that will run riot is thus groundless. To be sure, the Court has sustained the validity of similar, if not more
general standards in other cases.26
It ought to follow that the argument that E.O. No. 392 is null and void as it was based on indeterminate
standards set by R.A. 8180 must likewise fail. If that were all to the attack against the validity of E.O. No.
392, the issue need not further detain our discourse. But petitioners further posit the thesis that the
Executive misapplied R.A. No. 8180 when it considered the depletion of the OPSF fund as a factor in
fully deregulating the downstream oil industry in February 1997. A perusal of section 15 of R.A. No. 8180
will readily reveal that it only enumerated two factors to be considered by the Department of Energy and
the Office of the President, viz.: (1) the time when the prices of crude oil and petroleum products in the
world market are declining, and (2) the time when the exchange rate of the peso in relation to the US
dollar is stable. Section 15 did not mention the depletion of the OPSF fund as a factor to be given weight
by the Executive before ordering full deregulation. On the contrary, the debates in Congress will show that
some of our legislators wanted to impose as a pre-condition to deregulation a showing that the OPSF fund
must not be in deficit.27 We therefore hold that the Executive department failed to follow faithfully the
standards set by R.A. No. 8180 when it considered the extraneous factor of depletion of the OPSF fund.
The misappreciation of this extra factor cannot be justified on the ground that the Executive department
considered anyway the stability of the prices of crude oil in the world market and the stability of the
exchange rate of the peso to the dollar. By considering another factor to hasten full deregulation, the
Executive department rewrote the standards set forth in R.A. 8180. The Executive is bereft of any right to
alter either by subtraction or addition the standards set in R.A. No. 8180 for it has no power to make laws.
To cede to the Executive the power to make law is to invite tyranny, indeed, to transgress the principle of
separation of powers. The exercise of delegated power is given a strict scrutiny by courts for the delegate
is a mere agent whose action cannot infringe the terms of agency. In the cases at bar, the Executive co-
mingled the factor of depletion of the OPSF fund with the factors of decline of the price of crude oil in the
world market and the stability of the peso to the US dollar. On the basis of the text of E.O. No. 392, it is
impossible to determine the weight given by the Executive department to the depletion of the OPSF fund.
It could well be the principal consideration for the early deregulation. It could have been accorded an
equal significance. Or its importance could be nil. In light of this uncertainty, we rule that the early
deregulation under E.O. No. 392 constitutes a misapplication of R.A. No. 8180.
We now come to grips with the contention that some provisions of R.A. No. 8180 violate section 19 of
Article XII of the 1987 Constitution. These provisions are:
(1) Section 5 (b) which states — "Any law to the contrary notwithstanding and starting with the
effectivity of this Act, tariff duty shall be imposed and collected on imported crude oil at the rate of three
percent (3%) and imported refined petroleum products at the rate of seven percent (7%) except fuel oil and
LPG, the rate for which shall be the same as that for imported crude oil. Provided, that beginning on
January 1, 2004 the tariff rate on imported crude oil and refined petroleum products shall be the same.
Provided, further, that this provision may be amended only by an Act of Congress."
(2) Section 6 which states — "To ensure the security and continuity of petroleum crude and
products supply, the DOE shall require the refiners and importers to maintain a minimum inventory

equivalent to ten percent (10%) of their respective annual sales volume or forty (40) days of supply,
whichever is lower," and
(3) Section 9 (b) which states — "To ensure fair competition and prevent cartels and monopolies
in the downstream oil industry, the following acts shall be prohibited:
xxx xxx xxx
(b) Predatory pricing which means selling or offering to sell any product at a price unreasonably
below the industry average cost so as to attract customers to the detriment of competitors.
On the other hand, section 19 of Article XII of the Constitution allegedly violated by the aforestated
provisions of R.A. No. 8180 mandates: "The State shall regulate or prohibit monopolies when the public
interest so requires. No combinations in restraint of trade or unfair competition shall be allowed."
A monopoly is a privilege or peculiar advantage vested in one or more persons or companies, consisting in
the exclusive right or power to carry on a particular business or trade, manufacture a particular article, or
control the sale or the whole supply of a particular commodity. It is a form of market structure in which
one or only a few firms dominate the total sales of a product or service.28 On the other hand, a
combination in restraint of trade is an agreement or understanding between two or more persons, in the
form of a contract, trust, pool, holding company, or other form of association, for the purpose of unduly
restricting competition, monopolizing trade and commerce in a certain commodity, controlling its,
production, distribution and price, or otherwise interfering with freedom of trade without statutory
authority.29 Combination in restraint of trade refers to the means while monopoly refers to the end.30
Article 186 of the Revised Penal Code and Article 28 of the New Civil Code breathe life to this
constitutional policy. Article 186 of the Revised Penal Code penalizes monopolization and creation of
combinations in restraint of
trade, 31 while Article 28 of the New Civil Code makes any person who shall engage in unfair
competition liable for damages.32
Respondents aver that sections 5(b), 6 and 9(b) implement the policies and objectives of R.A. No. 8180.
They explain that the 4% tariff differential is designed to encourage new entrants to invest in refineries.
They stress that the inventory requirement is meant to guaranty continuous domestic supply of petroleum
and to discourage fly-by-night operators. They also submit that the prohibition against predatory pricing is
intended to protect prospective entrants. Respondents manifested to the Court that new players have
entered the Philippines after deregulation and have now captured 3% — 5% of the oil market.
The validity of the assailed provisions of R.A. No. 8180 has to be decided in light of the letter and spirit of
our Constitution, especially section 19, Article XII. Beyond doubt, the Constitution committed us to the
free enterprise system but it is a system impressed with its own distinctness. Thus, while the Constitution
embraced free enterprise as an economic creed, it did not prohibit per se the operation of monopolies
which can, however, be regulated in the public interest.33 Thus too, our free enterprise system is not based
on a market of pure and unadulterated competition where the State pursues a strict hands-off policy and
follows the let-the-devil devour the hindmost rule. Combinations in restraint of trade and unfair
competitions are absolutely proscribed and the proscription is directed both against the State as well as the
private sector.34 This distinct free enterprise system is dictated by the need to achieve the goals of our
national economy as defined by section 1, Article XII of the Constitution which are: more equitable
distribution of opportunities, income and wealth; a sustained increase in the amount of goods and services
produced by the nation for the benefit of the people; and an expanding productivity as the key to raising
the quality of life for all, especially the underprivileged. It also calls for the State to protect Filipino
enterprises against unfair competition and trade practices.
73
Section 19, Article XII of our Constitution is anti-trust in history and in spirit. It espouses competition.
The desirability of competition is the reason for the prohibition against restraint of trade, the reason for the
interdiction of unfair competition, and the reason for regulation of unmitigated monopolies. Competition
is thus the underlying principle of section 19, Article XII of our Constitution which cannot be violated by
R.A. No. 8180. We subscribe to the observation of Prof. Gellhorn that the objective of anti-trust law is "to
assure a competitive economy, based upon the belief that through competition producers will strive to
satisfy consumer wants at the lowest price with the sacrifice of the fewest resources. Competition among
producers allows consumers to bid for goods and services, and thus matches their desires with society's
opportunity costs."35 He adds with appropriateness that there is a reliance upon "the operation of the
'market' system (free enterprise) to decide what shall be produced, how resources shall be allocated in the
production process, and to whom the various products will be distributed. The market system relies on the
consumer to decide what and how much shall be produced, and on competition, among producers to
determine who will manufacture it."
Again, we underline in scarlet that the fundamental principle espoused by section 19, Article XII of the
Constitution is competition for it alone can release the creative forces of the market. But the competition
that can unleash these creative forces is competition that is fighting yet is fair. Ideally, this kind of
competition requires the presence of not one, not just a few but several players. A market controlled by
one player (monopoly) or dominated by a handful of players (oligopoly) is hardly the market where
honest-to-goodness competition will prevail. Monopolistic or oligopolistic markets deserve our careful
scrutiny and laws which barricade the entry points of new players in the market should be viewed with
suspicion.
Prescinding from these baseline propositions, we shall proceed to examine whether the provisions of R.A.
No. 8180 on tariff differential, inventory reserves, and predatory prices imposed substantial barriers to the
entry and exit of new players in our downstream oil industry. If they do, they have to be struck down for
they will necessarily inhibit the formation of a truly competitive market. Contrariwise, if they are
insignificant impediments, they need not be stricken down.
In the cases at bar, it cannot be denied that our downstream oil industry is operated and controlled by an
oligopoly, a foreign oligopoly at that. Petron, Shell and Caltex stand as the only major league players in
the oil market. All other players belong to the lilliputian league. As the dominant players, Petron, Shell
and Caltex boast of existing refineries of various capacities. The tariff differential of 4% therefore works
to their immense benefit. Yet, this is only one edge of the tariff differential. The other edge cuts and cuts
deep in the heart of their competitors. It erects a high barrier to the entry of new players. New players that
intend to equalize the market power of Petron, Shell and Caltex by building refineries of their own will
have to spend billions of pesos. Those who will not build refineries but compete with them will suffer the
huge disadvantage of increasing their product cost by 4%. They will be competing on an uneven field. The
argument that the 4% tariff differential is desirable because it will induce prospective players to invest in
refineries puts the cart before the horse. The first need is to attract new players and they cannot be
attracted by burdening them with heavy disincentives. Without new players belonging to the league of
Petron, Shell and Caltex, competition in our downstream oil industry is an idle dream.
The provision on inventory widens the balance of advantage of Petron, Shell and Caltex against
prospective new players. Petron, Shell and Caltex can easily comply with the inventory requirement of
R.A. No. 8180 in view of their existing storage facilities. Prospective competitors again will find
compliance with this requirement difficult as it will entail a prohibitive cost. The construction cost of
storage facilities and the cost of inventory can thus scare prospective players. Their net effect is to further
occlude the entry points of new players, dampen competition and enhance the control of the market by the
three (3) existing oil companies.
Finally, we come to the provision on predatory pricing which is defined as ". . . selling or offering to sell
any product at a price unreasonably below the industry average cost so as to attract customers to the

detriment of competitors." Respondents contend that this provision works against Petron, Shell and Caltex
and protects new entrants. The ban on predatory pricing cannot be analyzed in isolation. Its validity is
interlocked with the barriers imposed by R.A. No. 8180 on the entry of new players. The inquiry should be
to determine whether predatory pricing on the part of the dominant oil companies is encouraged by the
provisions in the law blocking the entry of new players. Text-writer
Hovenkamp,36 gives the authoritative answer and we quote:
xxx xxx xxx
The rationale for predatory pricing is the sustaining of losses today that will give a firm monopoly profits
in the future. The monopoly profits will never materialize, however, if the market is flooded with new
entrants as soon as the successful predator attempts to raise its price. Predatory pricing will be profitable
only if the market contains significant barriers to new entry.
As aforediscsussed, the 4% tariff differential and the inventory requirement are significant barriers which
discourage new players to enter the market. Considering these significant barriers established by R.A. No.
8180 and the lack of players with the comparable clout of PETRON, SHELL and CALTEX, the
temptation for a dominant player to engage in predatory pricing and succeed is a chilling reality.
Petitioners' charge that this provision on predatory pricing is anti-competitive is not without reason.
Respondents belittle these barriers with the allegation that new players have entered the market since
deregulation. A scrutiny of the list of the alleged new players will, however, reveal that not one belongs to
the class and category of PETRON, SHELL and CALTEX. Indeed, there is no showing that any of these
new players intends to install any refinery and effectively compete with these dominant oil companies. In
any event, it cannot be gainsaid that the new players could have been more in number and more
impressive in might if the illegal entry barriers in R.A. No. 8180 were not erected.
We come to the final point. We now resolve the total effect of the untimely deregulation, the imposition of
4% tariff differential on imported crude oil and refined petroleum products, the requirement of inventory
and the prohibition on predatory pricing on the constitutionality of R.A. No. 8180. The question is whether
these offending provisions can be individually struck down without invalidating the entire R.A. No. 8180.
The ruling case law is well stated by author Agpalo,37 viz.:
xxx xxx xxx
The general rule is that where part of a statute is void as repugnant to the Constitution, while another part
is valid, the valid portion, if separable from the invalid, may stand and be enforced. The presence of a
separability clause in a statute creates the presumption that the legislature intended separability, rather
than complete nullity of the statute. To justify this result, the valid portion must be so far independent of
the invalid portion that it is fair to presume that the legislature would have enacted it by itself if it had
supposed that it could not constitutionally enact the other. Enough must remain to make a complete,
intelligible and valid statute, which carries out the legislative intent. . . .
The exception to the general rule is that when the parts of a statute are so mutually dependent and
connected, as conditions, considerations, inducements, or compensations for each other, as to warrant a
belief that the legislature intended them as a whole, the nullity of one part will vitiate the rest. In making
the parts of the statute dependent, conditional, or connected with one another, the legislature intended the
statute to be carried out as a whole and would not have enacted it if one part is void, in which case if some
parts are unconstitutional, all the other provisions thus dependent, conditional, or connected must fall with
them.
R.A. No. 8180 contains a separability clause. Section 23 provides that "if for any reason, any section or
provision of this Act is declared unconstitutional or invalid, such parts not affected thereby shall remain in
74
full force and effect." This separability clause notwithstanding, we hold that the offending provisions of
R.A. No. 8180 so permeate its essence that the entire law has to be struck down. The provisions on tariff
differential, inventory and predatory pricing are among the principal props of R.A. No. 8180. Congress
could not have deregulated the downstream oil industry without these provisions. Unfortunately, contrary
to their intent, these provisions on tariff differential, inventory and predatory pricing inhibit fair
competition, encourage monopolistic power and interfere with the free interaction of market forces. R.A.
No. 8180 needs provisions to vouchsafe free and fair competition. The need for these vouchsafing
provisions cannot be overstated. Before deregulation, PETRON, SHELL and CALTEX had no real
competitors but did not have a free run of the market because government controls both the pricing and
non-pricing aspects of the oil industry. After deregulation, PETRON, SHELL and CALTEX remain
unthreatened by real competition yet are no longer subject to control by government with respect to their
pricing and non-pricing decisions. The aftermath of R.A. No. 8180 is a deregulated market where
competition can be corrupted and where market forces can be manipulated by oligopolies.
The fall out effects of the defects of R.A. No. 8180 on our people have not escaped Congress. A lot of our
leading legislators have come out openly with bills seeking the repeal of these odious and offensive
provisions in R.A. No. 8180. In the Senate, Senator Freddie Webb has filed S.B. No. 2133 which is the
result of the hearings conducted by the Senate Committee on Energy. The hearings revealed that (1) there
was a need to level the playing field for the new entrants in the downstream oil industry, and (2) there was
no law punishing a person for selling petroleum products at unreasonable prices. Senator Alberto G.
Romulo also filed S.B. No. 2209 abolishing the tariff differential beginning January 1, 1998. He declared
that the amendment ". . . would mean that instead of just three (3) big oil companies there will be other
major oil companies to provide more competitive prices for the market and the consuming public."
Senator Heherson T . Alvarez, one of the principal proponents of R.A. No. 8180, also filed S.B. No. 2290
increasing the penalty for violation of its section 9. It is his opinion as expressed in the explanatory note of
the bill that the present oil companies are engaged in cartelization despite R.A. No. 8180, viz,:
xxx xxx xxx
Since the downstream oil industry was fully deregulated in February 1997, there have been eight (8) fuel
price adjustments made by the three oil majors, namely: Caltex Philippines, Inc.; Petron Corporation; and
Pilipinas Shell Petroleum Corporation. Very noticeable in the price adjustments made, however, is the
uniformity in the pump prices of practically all petroleum products of the three oil companies. This,
despite the fact, that their selling rates should be determined by a combination of any of the following
factors: the prevailing peso-dollar exchange rate at the time payment is made for crude purchases, sources
of crude, and inventory levels of both crude and refined petroleum products. The abovestated factors
should have resulted in different, rather than identical prices.
The fact that the three (3) oil companies' petroleum products are uniformly priced suggests collusion,
amounting to cartelization, among Caltex Philippines, Inc., Petron Corporation and Pilipinas Shell
Petroleum Corporation to fix the prices of petroleum products in violation of paragraph (a), Section 9 of
R.A. No. 8180.
To deter this pernicious practice and to assure that present and prospective players in the downstream oil
industry conduct their business with conscience and propriety, cartel-like activities ought to be severely
penalized.
Senator Francisco S. Tatad also filed S.B. No. 2307 providing for a uniform tariff rate on imported crude
oil and refined petroleum products. In the explanatory note of the bill, he declared in no uncertain terms
that ". . . the present set-up has raised serious public concern over the way the three oil companies have
uniformly adjusted the prices of oil in the country, an indication of a possible existence of a cartel or a
cartel-like situation within the downstream oil industry. This situation is mostly attributed to the foregoing

provision on tariff differential, which has effectively discouraged the entry of new players in the
downstream oil industry."
In the House of Representatives, the moves to rehabilitate R.A. No. 8180 are equally feverish.
Representative Leopoldo E. San Buenaventura has filed H.B. No. 9826 removing the tariff differential for
imported crude oil and imported refined petroleum products. In the explanatory note of the bill, Rep.
Buenaventura explained:
xxx xxx xxx
As we now experience, this difference in tariff rates between imported crude oil and imported refined
petroleum products, unwittingly provided a built-in-advantage for the three existing oil refineries in the
country and eliminating competition which is a must in a free enterprise economy. Moreover, it created a
disincentive for other players to engage even initially in the importation and distribution of refined
petroleum products and ultimately in the putting up of refineries. This tariff differential virtually created a
monopoly of the downstream oil industry by the existing three oil companies as shown by their uniform
and capricious pricing of their products since this law took effect, to the great disadvantage of the
consuming public.
Thus, instead of achieving the desired effects of deregulation, that of free enterprise and a level playing
field in the downstream oil industry, R.A. 8180 has created an environment conducive to cartelization,
unfavorable, increased, unrealistic prices of petroleum products in the country by the three existing
refineries.
Representative Marcial C. Punzalan, Jr., filed H.B. No. 9981 to prevent collusion among the present oil
companies by strengthening the oversight function of the government, particularly its ability to subject to a
review any adjustment in the prices of gasoline and other petroleum products. In the explanatory note of
the bill, Rep. Punzalan, Jr., said:
xxx xxx xxx
To avoid this, the proposed bill seeks to strengthen the oversight function of government, particularly its
ability to review the prices set for gasoline and other petroleum products. It grants the Energy Regulatory
Board (ERB) the authority to review prices of oil and other petroleum products, as may be petitioned by a
person, group or any entity, and to subsequently compel any entity in the industry to submit any and all
documents relevant to the imposition of new prices. In cases where the Board determines that there exist
collusion, economic conspiracy, unfair trade practice, profiteering and/or overpricing, it may take any step
necessary to protect the public, including the readjustment of the prices of petroleum products. Further, the
Board may also impose the fine and penalty of imprisonment, as prescribed in Section 9 of R.A. 8180, on
any person or entity from the oil industry who is found guilty of such prohibited acts.
By doing all of the above, the measure will effectively provide Filipino consumers with a venue where
their grievances can be heard and immediately acted upon by government.
Thus, this bill stands to benefit the Filipino consumer by making the price-setting process more
transparent and making it easier to prosecute those who perpetrate such prohibited acts as collusion,
overpricing, economic conspiracy and unfair trade.
Representative Sergio A.F . Apostol filed H.B. No. 10039 to remedy an omission in R.A. No. 8180 where
there is no agency in government that determines what is "reasonable" increase in the prices of oil
products. Representative Dente O. Tinga, one of the principal sponsors of R.A. No. 8180, filed H.B. No.
10057 to strengthen its anti-trust provisions. He elucidated in its explanatory note:
75
xxx xxx xxx
The definition of predatory pricing, however, needs to be tightened up particularly with respect to the
definitive benchmark price and the specific anti-competitive intent. The definition in the bill at hand which
was taken from the Areeda-Turner test in the United States on predatory pricing resolves the questions.
The definition reads, "Predatory pricing means selling or offering to sell any oil product at a price below
the average variable cost for the purpose of destroying competition, eliminating a competitor or
discouraging a competitor from entering the market."
The appropriate actions which may be resorted to under the Rules of Court in conjunction with the oil
deregulation law are adequate. But to stress their availability and dynamism, it is a good move to
incorporate all the remedies in the law itself. Thus, the present bill formalizes the concept of government
intervention and private suits to address the problem of antitrust violations. Specifically, the government
may file an action to prevent or restrain any act of cartelization or predatory pricing, and if it has suffered
any loss or damage by reason of the antitrust violation it may recover damages. Likewise, a private person
or entity may sue to prevent or restrain any such violation which will result in damage to his business or
property, and if he has already suffered damage he shall recover treble damages. A class suit may also be
allowed.
To make the DOE Secretary more effective in the enforcement of the law, he shall be given additional
powers to gather information and to require reports.
Representative Erasmo B. Damasing filed H.B. No. 7885 and has a more unforgiving view of R.A. No.
8180. He wants it completely repealed. He explained:
xxx xxx xxx
Contrary to the projections at the time the bill on the Downstream Oil Industry Deregulation was
discussed and debated upon in the plenary session prior to its approval into law, there aren't any new
players or investors in the oil industry. Thus, resulting in practically a cartel or monopoly in the oil
industry by the three (3) big oil companies, Caltex, Shell and Petron. So much so, that with the
deregulation now being partially implemented, the said oil companies have succeeded in increasing the
prices of most of their petroleum products with little or no interference at all from the government. In the
month of August, there was an increase of Fifty centavos (50¢) per liter by subsidizing the same with the
OPSF, this is only temporary as in March 1997, or a few months from now, there will be full deregulation
(Phase II) whereby the increase in the prices of petroleum products will be fully absorbed by the
consumers since OPSF will already be abolished by then. Certainly, this would make the lives of our
people, especially the unemployed ones, doubly difficult and unbearable.
The much ballyhooed coming in of new players in the oil industry is quite remote considering that these
prospective investors cannot fight the existing and well established oil companies in the country today,
namely, Caltex, Shell and Petron. Even if these new players will come in, they will still have no chance to
compete with the said three (3) existing big oil companies considering that there is an imposition of oil
tariff differential of 4% between importation of crude oil by the said oil refineries paying only 3% tariff
rate for the said importation and 7% tariff rate to be paid by businessmen who have no oil refineries in the
Philippines but will import finished petroleum/oil products which is being taxed with 7% tariff rates.
So, if only to help the many who are poor from further suffering as a result of unmitigated increase in oil
products due to deregulation, it is a must that the Downstream Oil Industry Deregulation Act of 1996, or
R.A. 8180 be repealed completely.
Various resolutions have also been filed in the Senate calling for an immediate and comprehensive review
of R.A. No. 8180 to prevent the downpour of its ill effects on the people. Thus, S. Res. No. 574 was filed

by Senator Gloria M. Macapagal entitled Resolution "Directing the Committee on Energy to Inquire Into
The Proper Implementation of the Deregulation of the Downstream Oil Industry and Oil Tax
Restructuring As Mandated Under R.A. Nos. 8180 and 8184, In Order to Make The Necessary
Corrections In the Apparent Misinterpretation Of The Intent And Provision Of The Laws And Curb The
Rising Tide Of Disenchantment Among The Filipino Consumers And Bring About The Real Intentions
And Benefits Of The Said Law." Senator Blas P. Ople filed S. Res. No. 664 entitled resolution "Directing
the Committee on Energy To Conduct An Inquiry In Aid Of Legislation To Review The Government's Oil
Deregulation Policy In Light Of The Successive Increases In Transportation, Electricity And Power Rates,
As well As Of Food And Other Prime Commodities And Recommend Appropriate Amendments To
Protect The Consuming Public." Senator Ople observed:
xxx xxx xxx
WHEREAS, since the passage of R.A. No. 8180, the Energy Regulatory Board (ERB) has imposed
successive increases in oil prices which has triggered increases in electricity and power rates,
transportation fares, as well as in prices of food and other prime commodities to the detriment of our
people, particularly the poor;
WHEREAS, the new players that were expected to compete with the oil cartel-Shell, Caltex and Petron-
have not come in;
WHEREAS, it is imperative that a review of the oil deregulation policy be made to consider appropriate
amendments to the existing law such as an extension of the transition phase before full deregulation in
order to give the competitive market enough time to develop;
WHEREAS, the review can include the advisability of providing some incentives in order to attract the
entry of new oil companies to effect a dynamic competitive market;
WHEREAS, it may also be necessary to defer the setting up of the institutional framework for full
deregulation of the oil industry as mandated under Executive Order No. 377 issued by President Ramos
last October 31, 1996 . . .
Senator Alberto G. Romulo filed S. Res. No. 769 entitled resolution "Directing the Committees on Energy
and Public Services In Aid Of Legislation To Assess The Immediate Medium And Long Term Impact of
Oil Deregulation On Oil Prices And The Economy." Among the reasons for the resolution is the finding
that "the requirement of a 40-day stock inventory effectively limits the entry of other oil firms in the
market with the consequence that instead of going down oil prices will rise."
Parallel resolutions have been filed in the House of Representatives. Representative Dante O. Tinga filed
H. Res. No. 1311 "Directing The Committee on Energy To Conduct An Inquiry, In Aid of Legislation,
Into The Pricing Policies And Decisions Of The Oil Companies Since The Implementation of Full
Deregulation Under the Oil Deregulation Act (R.A. No. 8180) For the Purpose of Determining In the
Context Of The Oversight Functions Of Congress Whether The Conduct Of The Oil Companies, Whether
Singly Or Collectively, Constitutes Cartelization Which Is A Prohibited Act Under R.A. No. 8180, And
What Measures Should Be Taken To Help Ensure The Successful Implementation Of The Law In
Accordance With Its Letter And Spirit, Including Recommending Criminal Prosecution Of the Officers
Concerned Of the Oil Companies If Warranted By The Evidence, And For Other Purposes."
Representatives Marcial C. Punzalan, Jr. Dante O. Tinga and Antonio E. Bengzon III filed H.R. No. 894
directing the House Committee on Energy to inquire into the proper implementation of the deregulation of
the downstream oil industry. House Resolution No. 1013 was also filed by Representatives Edcel C.
Lagman, Enrique T . Garcia, Jr. and Joker P. Arroyo urging the President to immediately suspend the
implementation of E.O. No. 392.
76
In recent memory there is no law enacted by the legislature afflicted with so much constitutional
deformities as R.A. No. 8180. Yet, R.A. No. 8180 deals with oil, a commodity whose supply and price
affect the ebb and flow of the lifeblood of the nation. Its shortage of supply or a slight, upward spiral in its
price shakes our economic foundation. Studies show that the areas most impacted by the movement of oil
are food manufacture, land transport, trade, electricity and water.38 At a time when our economy is in a
dangerous downspin, the perpetuation of R.A. No. 8180 threatens to multiply the number of our people
with bent backs and begging bowls. R.A. No. 8180 with its anti-competition provisions cannot be allowed
by this Court to stand even while Congress is working to remedy its defects.
The Court, however, takes note of the plea of PETRON, SHELL and CALTEX to lift our restraining order
to enable them to adjust upward the price of petroleum and petroleum products in view of the plummeting
value of the peso. Their plea, however, will now have to be addressed to the Energy Regulatory Board as
the effect of the declaration of unconstitutionality of R.A. No. 8180 is to revive the former laws it
repealed.39 The length of our return to the regime of regulation depends on Congress which can fasttrack
the writing of a new law on oil deregulation in accord with the Constitution.
With this Decision, some circles will chide the Court for interfering with an economic decision of
Congress. Such criticism is charmless for the Court is annulling R.A. No. 8180 not because it disagrees
with deregulation as an economic policy but because as cobbled by Congress in its present form, the law
violates the Constitution. The right call therefor should be for Congress to write a new oil deregulation law
that conforms with the Constitution and not for this Court to shirk its duty of striking down a law that
offends the Constitution. Striking down R.A. No. 8180 may cost losses in quantifiable terms to the oil
oligopolists. But the loss in tolerating the tampering of our Constitution is not quantifiable in pesos and
centavos. More worthy of protection than the supra-normal profits of private corporations is the sanctity of
the fundamental principles of the Constitution. Indeed when confronted by a law violating the
Constitution, the Court has no option but to strike it down dead. Lest it is missed, the Constitution is a
covenant that grants and guarantees both the political and economic rights of the people. The Constitution
mandates this Court to be the guardian not only of the people's political rights but their economic rights as
well. The protection of the economic rights of the poor and the powerless is of greater importance to them
for they are concerned more with the exoterics of living and less with the esoterics of liberty. Hence, for as
long as the Constitution reigns supreme so long will this Court be vigilant in upholding the economic
rights of our people especially from the onslaught of the powerful. Our defense of the people's economic
rights may appear heartless because it cannot be half-hearted.
IN VIEW WHEREOF, the petitions are granted. R.A. No. 8180 is declared unconstitutional and E.O. No.
372 void.
SO ORDERED.
GEROCHI VS DEPT OF ENERGY
Petitioners Romeo P. Gerochi, Katulong Ng Bayan (KB), and Environmentalist Consumers Network, Inc.
(ECN) (petitioners), come before this Court in this original action praying that Section 34 of Republic Act
(RA) 9136, otherwise known as the "Electric Power Industry Reform Act of 2001" (EPIRA), imposing the
Universal Charge,1 and Rule 18 of the Rules and Regulations (IRR)2 which seeks to implement the said
imposition, be declared unconstitutional. Petitioners also pray that the Universal Charge imposed upon the
consumers be refunded and that a preliminary injunction and/or temporary restraining order (TRO) be
issued directing the respondents to refrain from implementing, charging, and collecting the said charge.3
The assailed provision of law reads:

SECTION 34. Universal Charge. — Within one (1) year from the effectivity of this Act, a universal
charge to be determined, fixed and approved by the ERC, shall be imposed on all electricity end-users for
the following purposes:
(a) Payment for the stranded debts4 in excess of the amount assumed by the National Government and
stranded contract costs of NPC5 and as well as qualified stranded contract costs of distribution utilities
resulting from the restructuring of the industry;
(b) Missionary electrification;6
(c) The equalization of the taxes and royalties applied to indigenous or renewable sources of energy vis-à-
vis imported energy fuels;
(d) An environmental charge equivalent to one-fourth of one centavo per kilowatt-hour (₱0.0025/kWh),
which shall accrue to an environmental fund to be used solely for watershed rehabilitation and
management. Said fund shall be managed by NPC under existing arrangements; and
(e) A charge to account for all forms of cross-subsidies for a period not exceeding three (3) years.
The universal charge shall be a non-bypassable charge which shall be passed on and collected from all
end-users on a monthly basis by the distribution utilities. Collections by the distribution utilities and the
TRANSCO in any given month shall be remitted to the PSALM Corp. on or before the fifteenth (15th) of
the succeeding month, net of any amount due to the distribution utility. Any end-user or self-generating
entity not connected to a distribution utility shall remit its corresponding universal charge directly to the
TRANSCO. The PSALM Corp., as administrator of the fund, shall create a Special Trust Fund which shall
be disbursed only for the purposes specified herein in an open and transparent manner. All amount
collected for the universal charge shall be distributed to the respective beneficiaries within a reasonable
period to be provided by the ERC.
The Facts
Congress enacted the EPIRA on June 8, 2001; on June 26, 2001, it took effect.7
On April 5, 2002, respondent National Power Corporation-Strategic Power Utilities Group8 (NPC-SPUG)
filed with respondent Energy Regulatory Commission (ERC) a petition for the availment from the
Universal Charge of its share for Missionary Electrification, docketed as ERC Case No. 2002-165.9
On May 7, 2002, NPC filed another petition with ERC, docketed as ERC Case No. 2002-194, praying that
the proposed share from the Universal Charge for the Environmental charge of ₱0.0025 per kilowatt-hour
(/kWh), or a total of ₱119,488,847.59, be approved for withdrawal from the Special Trust Fund (STF)
managed by respondent Power Sector Assets and
Liabilities Management Group (PSALM)10 for the rehabilitation and management of watershed areas.11
On December 20, 2002, the ERC issued an Order12 in ERC Case No. 2002-165 provisionally approving
the computed amount of ₱0.0168/kWh as the share of the NPC-SPUG from the Universal Charge for
Missionary Electrification and authorizing the National Transmission Corporation (TRANSCO) and
Distribution Utilities to collect the same from its end-users on a monthly basis.
On June 26, 2003, the ERC rendered its Decision13 (for ERC Case No. 2002-165) modifying its Order of
December 20, 2002, thus:
77
WHEREFORE, the foregoing premises considered, the provisional authority granted to petitioner National
Power Corporation-Strategic Power Utilities Group (NPC-SPUG) in the Order dated December 20, 2002
is hereby modified to the effect that an additional amount of ₱0.0205 per kilowatt-hour should be added to
the ₱0.0168 per kilowatt-hour provisionally authorized by the Commission in the said Order. Accordingly,
a total amount of ₱0.0373 per kilowatt-hour is hereby APPROVED for withdrawal from the Special Trust
Fund managed by PSALM as its share from the Universal Charge for Missionary Electrification (UC-ME)
effective on the following billing cycles:
(a) June 26-July 25, 2003 for National Transmission Corporation (TRANSCO); and
(b) July 2003 for Distribution Utilities (Dus).
Relative thereto, TRANSCO and Dus are directed to collect the UC-ME in the amount of ₱0.0373 per
kilowatt-hour and remit the same to PSALM on or before the 15th day of the succeeding month.
In the meantime, NPC-SPUG is directed to submit, not later than April 30, 2004, a detailed report to
include Audited Financial Statements and physical status (percentage of completion) of the projects using
the prescribed format.1avvphi1
Let copies of this Order be furnished petitioner NPC-SPUG and all distribution utilities (Dus).
SO ORDERED.
On August 13, 2003, NPC-SPUG filed a Motion for Reconsideration asking the ERC, among others,14 to
set aside the above-mentioned Decision, which the ERC granted in its Order dated October 7, 2003,
disposing:
WHEREFORE, the foregoing premises considered, the "Motion for Reconsideration" filed by petitioner
National Power Corporation-Small Power Utilities Group (NPC-SPUG) is hereby GRANTED.
Accordingly, the Decision dated June 26, 2003 is hereby modified accordingly.
Relative thereto, NPC-SPUG is directed to submit a quarterly report on the following:
1. Projects for CY 2002 undertaken;
2. Location
3. Actual amount utilized to complete the project;
4. Period of completion;
5. Start of Operation; and
6. Explanation of the reallocation of UC-ME funds, if any.
SO ORDERED.15
Meanwhile, on April 2, 2003, ERC decided ERC Case No. 2002-194, authorizing the NPC to draw up to
₱70,000,000.00 from PSALM for its 2003 Watershed Rehabilitation Budget subject to the availability of
funds for the Environmental Fund component of the Universal Charge.16

On the basis of the said ERC decisions, respondent Panay Electric Company, Inc. (PECO) charged
petitioner Romeo P. Gerochi and all other end-users with the Universal Charge as reflected in their
respective electric bills starting from the month of July 2003.17
Hence, this original action.
Petitioners submit that the assailed provision of law and its IRR which sought to implement the same are
unconstitutional on the following grounds:
1) The universal charge provided for under Sec. 34 of the EPIRA and sought to be implemented under
Sec. 2, Rule 18 of the IRR of the said law is a tax which is to be collected from all electric end-users and
self-generating entities. The power to tax is strictly a legislative function and as such, the delegation of
said power to any executive or administrative agency like the ERC is unconstitutional, giving the same
unlimited authority. The assailed provision clearly provides that the Universal Charge is to be determined,
fixed and approved by the ERC, hence leaving to the latter complete discretionary legislative authority.
2) The ERC is also empowered to approve and determine where the funds collected should be used.
3) The imposition of the Universal Charge on all end-users is oppressive and confiscatory and amounts to
taxation without representation as the consumers were not given a chance to be heard and represented.18
Petitioners contend that the Universal Charge has the characteristics of a tax and is collected to fund the
operations of the NPC. They argue that the cases19 invoked by the respondents clearly show the
regulatory purpose of the charges imposed therein, which is not so in the case at bench. In said cases, the
respective funds20 were created in order to balance and stabilize the prices of oil and sugar, and to act as
buffer to counteract the changes and adjustments in prices, peso devaluation, and other variables which
cannot be adequately and timely monitored by the legislature. Thus, there was a need to delegate powers
to administrative bodies.21 Petitioners posit that the Universal Charge is imposed not for a similar
purpose.
On the other hand, respondent PSALM through the Office of the Government Corporate Counsel (OGCC)
contends that unlike a tax which is imposed to provide income for public purposes, such as support of the
government, administration of the law, or payment of public expenses, the assailed Universal Charge is
levied for a specific regulatory purpose, which is to ensure the viability of the country's electric power
industry. Thus, it is exacted by the State in the exercise of its inherent police power. On this premise,
PSALM submits that there is no undue delegation of legislative power to the ERC since the latter merely
exercises a limited authority or discretion as to the execution and implementation of the provisions of the
EPIRA.22
Respondents Department of Energy (DOE), ERC, and NPC, through the Office of the Solicitor General
(OSG), share the same view that the Universal Charge is not a tax because it is levied for a specific
regulatory purpose, which is to ensure the viability of the country's electric power industry, and is,
therefore, an exaction in the exercise of the State's police power. Respondents further contend that said
Universal Charge does not possess the essential characteristics of a tax, that its imposition would redound
to the benefit of the electric power industry and not to the public, and that its rate is uniformly levied on
electricity end-users, unlike a tax which is imposed based on the individual taxpayer's ability to pay.
Moreover, respondents deny that there is undue delegation of legislative power to the ERC since the
EPIRA sets forth sufficient determinable standards which would guide the ERC in the exercise of the
powers granted to it. Lastly, respondents argue that the imposition of the Universal Charge is not
oppressive and confiscatory since it is an exercise of the police power of the State and it complies with the
requirements of due process.23
78
On its part, respondent PECO argues that it is duty-bound to collect and remit the amount pertaining to the
Missionary Electrification and Environmental Fund components of the Universal Charge, pursuant to Sec.
34 of the EPIRA and the Decisions in ERC Case Nos. 2002-194 and 2002-165. Otherwise, PECO could be
held liable under Sec. 4624 of the EPIRA, which imposes fines and penalties for any violation of its
provisions or its IRR.25
The Issues
The ultimate issues in the case at bar are:
1) Whether or not, the Universal Charge imposed under Sec. 34 of the EPIRA is a tax; and
2) Whether or not there is undue delegation of legislative power to tax on the part of the ERC.26
Before we discuss the issues, the Court shall first deal with an obvious procedural lapse.
Petitioners filed before us an original action particularly denominated as a Complaint assailing the
constitutionality of Sec. 34 of the EPIRA imposing the Universal Charge and Rule 18 of the EPIRA's IRR.
No doubt, petitioners have locus standi. They impugn the constitutionality of Sec. 34 of the EPIRA
because they sustained a direct injury as a result of the imposition of the Universal Charge as reflected in
their electric bills.
However, petitioners violated the doctrine of hierarchy of courts when they filed this "Complaint" directly
with us. Furthermore, the Complaint is bereft of any allegation of grave abuse of discretion on the part of
the ERC or any of the public respondents, in order for the Court to consider it as a petition for certiorari or
prohibition.
Article VIII, Section 5(1) and (2) of the 1987 Constitution27 categorically provides that:
SECTION 5. The Supreme Court shall have the following powers:
1. Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and
over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the rules of court may
provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
But this Court's jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, and habeas
corpus, while concurrent with that of the regional trial courts and the Court of Appeals, does not give
litigants unrestrained freedom of choice of forum from which to seek such relief.28 It has long been
established that this Court will not entertain direct resort to it unless the redress desired cannot be obtained
in the appropriate courts, or where exceptional and compelling circumstances justify availment of a
remedy within and call for the exercise of our primary jurisdiction.29 This circumstance alone warrants
the outright dismissal of the present action.
This procedural infirmity notwithstanding, we opt to resolve the constitutional issue raised herein. We are
aware that if the constitutionality of Sec. 34 of the EPIRA is not resolved now, the issue will certainly
resurface in the near future, resulting in a repeat of this litigation, and probably involving the same parties.
In the public interest and to avoid unnecessary delay, this Court renders its ruling now.

The instant complaint is bereft of merit.
The First Issue
To resolve the first issue, it is necessary to distinguish the State’s power of taxation from the police power.
The power to tax is an incident of sovereignty and is unlimited in its range, acknowledging in its very
nature no limits, so that security against its abuse is to be found only in the responsibility of the legislature
which imposes the tax on the constituency that is to pay it.30 It is based on the principle that taxes are the
lifeblood of the government, and their prompt and certain availability is an imperious need.31 Thus, the
theory behind the exercise of the power to tax emanates from necessity; without taxes, government cannot
fulfill its mandate of promoting the general welfare and well-being of the people.32
On the other hand, police power is the power of the state to promote public welfare by restraining and
regulating the use of liberty and property.33 It is the most pervasive, the least limitable, and the most
demanding of the three fundamental powers of the State. The justification is found in the Latin maxims
salus populi est suprema lex (the welfare of the people is the supreme law) and sic utere tuo ut alienum
non laedas (so use your property as not to injure the property of others). As an inherent attribute of
sovereignty which virtually extends to all public needs, police power grants a wide panoply of instruments
through which the State, as parens patriae, gives effect to a host of its regulatory powers.34 We have held
that the power to "regulate" means the power to protect, foster, promote, preserve, and control, with due
regard for the interests, first and foremost, of the public, then of the utility and of its patrons.35
The conservative and pivotal distinction between these two powers rests in the purpose for which the
charge is made. If generation of revenue is the primary purpose and regulation is merely incidental, the
imposition is a tax; but if regulation is the primary purpose, the fact that revenue is incidentally raised
does not make the imposition a tax.36
In exacting the assailed Universal Charge through Sec. 34 of the EPIRA, the State's police power,
particularly its regulatory dimension, is invoked. Such can be deduced from Sec. 34 which enumerates the
purposes for which the Universal Charge is imposed37 and which can be amply discerned as regulatory in
character. The EPIRA resonates such regulatory purposes, thus:
SECTION 2. Declaration of Policy. — It is hereby declared the policy of the State:
(a) To ensure and accelerate the total electrification of the country;
(b) To ensure the quality, reliability, security and affordability of the supply of electric power;
(c) To ensure transparent and reasonable prices of electricity in a regime of free and fair competition and
full public accountability to achieve greater operational and economic efficiency and enhance the
competitiveness of Philippine products in the global market;
(d) To enhance the inflow of private capital and broaden the ownership base of the power generation,
transmission and distribution sectors;
(e) To ensure fair and non-discriminatory treatment of public and private sector entities in the process of
restructuring the electric power industry;
(f) To protect the public interest as it is affected by the rates and services of electric utilities and other
providers of electric power;
(g) To assure socially and environmentally compatible energy sources and infrastructure;
79
(h) To promote the utilization of indigenous and new and renewable energy resources in power generation
in order to reduce dependence on imported energy;
(i) To provide for an orderly and transparent privatization of the assets and liabilities of the National
Power Corporation (NPC);
(j) To establish a strong and purely independent regulatory body and system to ensure consumer
protection and enhance the competitive operation of the electricity market; and
(k) To encourage the efficient use of energy and other modalities of demand side management.
From the aforementioned purposes, it can be gleaned that the assailed Universal Charge is not a tax, but an
exaction in the exercise of the State's police power. Public welfare is surely promoted.
Moreover, it is a well-established doctrine that the taxing power may be used as an implement of police
power.38 In Valmonte v. Energy Regulatory Board, et al.39 and in Gaston v. Republic Planters Bank,40
this Court held that the Oil Price Stabilization Fund (OPSF) and the Sugar Stabilization Fund (SSF) were
exactions made in the exercise of the police power. The doctrine was reiterated in Osmeña v. Orbos41
with respect to the OPSF. Thus, we disagree with petitioners that the instant case is different from the
aforementioned cases. With the Universal Charge, a Special Trust Fund (STF) is also created under the
administration of PSALM.42 The STF has some notable characteristics similar to the OPSF and the SSF,
viz.:
1) In the implementation of stranded cost recovery, the ERC shall conduct a review to determine whether
there is under-recovery or over recovery and adjust (true-up) the level of the stranded cost recovery
charge. In case of an over-recovery, the ERC shall ensure that any excess amount shall be remitted to the
STF. A separate account shall be created for these amounts which shall be held in trust for any future
claims of distribution utilities for stranded cost recovery. At the end of the stranded cost recovery period,
any remaining amount in this account shall be used to reduce the electricity rates to the end-users.43
2) With respect to the assailed Universal Charge, if the total amount collected for the same is greater than
the actual availments against it, the PSALM shall retain the balance within the STF to pay for periods
where a shortfall occurs.44
3) Upon expiration of the term of PSALM, the administration of the STF shall be transferred to the DOF
or any of the DOF attached agencies as designated by the DOF Secretary.45
The OSG is in point when it asseverates:
Evidently, the establishment and maintenance of the Special Trust Fund, under the last paragraph of
Section 34, R.A. No. 9136, is well within the pervasive and non-waivable power and responsibility of the
government to secure the physical and economic survival and well-being of the community, that
comprehensive sovereign authority we designate as the police power of the State.46
This feature of the Universal Charge further boosts the position that the same is an exaction imposed
primarily in pursuit of the State's police objectives. The STF reasonably serves and assures the attainment
and perpetuity of the purposes for which the Universal Charge is imposed, i.e., to ensure the viability of
the country's electric power industry.
The Second Issue

The principle of separation of powers ordains that each of the three branches of government has exclusive
cognizance of and is supreme in matters falling within its own constitutionally allocated sphere. A logical
corollary to the doctrine of separation of powers is the principle of non-delegation of powers, as expressed
in the Latin maxim potestas delegata non delegari potest (what has been delegated cannot be delegated).
This is based on the ethical principle that such delegated power constitutes not only a right but a duty to be
performed by the delegate through the instrumentality of his own judgment and not through the
intervening mind of another. 47
In the face of the increasing complexity of modern life, delegation of legislative power to various
specialized administrative agencies is allowed as an exception to this principle.48 Given the volume and
variety of interactions in today's society, it is doubtful if the legislature can promulgate laws that will deal
adequately with and respond promptly to the minutiae of everyday life. Hence, the need to delegate to
administrative bodies - the principal agencies tasked to execute laws in their specialized fields - the
authority to promulgate rules and regulations to implement a given statute and effectuate its policies. All
that is required for the valid exercise of this power of subordinate legislation is that the regulation be
germane to the objects and purposes of the law and that the regulation be not in contradiction to, but in
conformity with, the standards prescribed by the law. These requirements are denominated as the
completeness test and the sufficient standard test.
Under the first test, the law must be complete in all its terms and conditions when it leaves the legislature
such that when it reaches the delegate, the only thing he will have to do is to enforce it. The second test
mandates adequate guidelines or limitations in the law to determine the boundaries of the delegate's
authority and prevent the delegation from running riot.49
The Court finds that the EPIRA, read and appreciated in its entirety, in relation to Sec. 34 thereof, is
complete in all its essential terms and conditions, and that it contains sufficient standards.
Although Sec. 34 of the EPIRA merely provides that "within one (1) year from the effectivity thereof, a
Universal Charge to be determined, fixed and approved by the ERC, shall be imposed on all electricity
end-users," and therefore, does not state the specific amount to be paid as Universal Charge, the amount
nevertheless is made certain by the legislative parameters provided in the law itself. For one, Sec. 43(b)(ii)
of the EPIRA provides:
SECTION 43. Functions of the ERC. — The ERC shall promote competition, encourage market
development, ensure customer choice and penalize abuse of market power in the restructured electricity
industry. In appropriate cases, the ERC is authorized to issue cease and desist order after due notice and
hearing. Towards this end, it shall be responsible for the following key functions in the restructured
industry:
xxxx
(b) Within six (6) months from the effectivity of this Act, promulgate and enforce, in accordance with law,
a National Grid Code and a Distribution Code which shall include, but not limited to the following:
xxxx
(ii) Financial capability standards for the generating companies, the TRANSCO, distribution utilities and
suppliers: Provided, That in the formulation of the financial capability standards, the nature and function
of the entity shall be considered: Provided, further, That such standards are set to ensure that the electric
power industry participants meet the minimum financial standards to protect the public interest.
Determine, fix, and approve, after due notice and public hearings the universal charge, to be imposed on
all electricity end-users pursuant to Section 34 hereof;
80
Moreover, contrary to the petitioners’ contention, the ERC does not enjoy a wide latitude of discretion in
the determination of the Universal Charge. Sec. 51(d) and (e) of the EPIRA50 clearly provides:
SECTION 51. Powers. — The PSALM Corp. shall, in the performance of its functions and for the
attainment of its objective, have the following powers:
xxxx
(d) To calculate the amount of the stranded debts and stranded contract costs of NPC which shall form the
basis for ERC in the determination of the universal charge;
(e) To liquidate the NPC stranded contract costs, utilizing the proceeds from sales and other property
contributed to it, including the proceeds from the universal charge.
Thus, the law is complete and passes the first test for valid delegation of legislative power.
As to the second test, this Court had, in the past, accepted as sufficient standards the following: "interest of
law and order;"51 "adequate and efficient instruction;"52 "public interest;"53 "justice and equity;"54
"public convenience and welfare;"55 "simplicity, economy and efficiency;"56 "standardization and
regulation of medical education;"57 and "fair and equitable employment practices."58 Provisions of the
EPIRA such as, among others, "to ensure the total electrification of the country and the quality, reliability,
security and affordability of the supply of electric power"59 and "watershed rehabilitation and
management"60 meet the requirements for valid delegation, as they provide the limitations on the ERC’s
power to formulate the IRR. These are sufficient standards.
It may be noted that this is not the first time that the ERC's conferred powers were challenged. In Freedom
from Debt Coalition v. Energy Regulatory Commission,61 the Court had occasion to say:
In determining the extent of powers possessed by the ERC, the provisions of the EPIRA must not be read
in separate parts. Rather, the law must be read in its entirety, because a statute is passed as a whole, and is
animated by one general purpose and intent. Its meaning cannot to be extracted from any single part
thereof but from a general consideration of the statute as a whole. Considering the intent of Congress in
enacting the EPIRA and reading the statute in its entirety, it is plain to see that the law has expanded the
jurisdiction of the regulatory body, the ERC in this case, to enable the latter to implement the reforms
sought to be accomplished by the EPIRA. When the legislators decided to broaden the jurisdiction of the
ERC, they did not intend to abolish or reduce the powers already conferred upon ERC's predecessors. To
sustain the view that the ERC possesses only the powers and functions listed under Section 43 of the
EPIRA is to frustrate the objectives of the law.
In his Concurring and Dissenting Opinion62 in the same case, then Associate Justice, now Chief Justice,
Reynato S. Puno described the immensity of police power in relation to the delegation of powers to the
ERC and its regulatory functions over electric power as a vital public utility, to wit:
Over the years, however, the range of police power was no longer limited to the preservation of public
health, safety and morals, which used to be the primary social interests in earlier times. Police power now
requires the State to "assume an affirmative duty to eliminate the excesses and injustices that are the
concomitants of an unrestrained industrial economy." Police power is now exerted "to further the public
welfare — a concept as vast as the good of society itself." Hence, "police power is but another name for
the governmental authority to further the welfare of society that is the basic end of all government." When
police power is delegated to administrative bodies with regulatory functions, its exercise should be given a
wide latitude. Police power takes on an even broader dimension in developing countries such as ours,
where the State must take a more active role in balancing the many conflicting interests in society. The
Questioned Order was issued by the ERC, acting as an agent of the State in the exercise of police power.

We should have exceptionally good grounds to curtail its exercise. This approach is more compelling in
the field of rate-regulation of electric power rates. Electric power generation and distribution is a
traditional instrument of economic growth that affects not only a few but the entire nation. It is an
important factor in encouraging investment and promoting business. The engines of progress may come to
a screeching halt if the delivery of electric power is impaired. Billions of pesos would be lost as a result of
power outages or unreliable electric power services. The State thru the ERC should be able to exercise its
police power with great flexibility, when the need arises.
This was reiterated in National Association of Electricity Consumers for Reforms v. Energy Regulatory
Commission63 where the Court held that the ERC, as regulator, should have sufficient power to respond
in real time to changes wrought by multifarious factors affecting public utilities.
From the foregoing disquisitions, we therefore hold that there is no undue delegation of legislative power
to the ERC.
Petitioners failed to pursue in their Memorandum the contention in the Complaint that the imposition of
the Universal Charge on all end-users is oppressive and confiscatory, and amounts to taxation without
representation. Hence, such contention is deemed waived or abandoned per Resolution64 of August 3,
2004.65 Moreover, the determination of whether or not a tax is excessive, oppressive or confiscatory is an
issue which essentially involves questions of fact, and thus, this Court is precluded from reviewing the
same.66
As a penultimate statement, it may be well to recall what this Court said of EPIRA:
One of the landmark pieces of legislation enacted by Congress in recent years is the EPIRA. It established
a new policy, legal structure and regulatory framework for the electric power industry. The new thrust is
to tap private capital for the expansion and improvement of the industry as the large government debt and
the highly capital-intensive character of the industry itself have long been acknowledged as the critical
constraints to the program. To attract private investment, largely foreign, the jaded structure of the
industry had to be addressed. While the generation and transmission sectors were centralized and
monopolistic, the distribution side was fragmented with over 130 utilities, mostly small and uneconomic.
The pervasive flaws have caused a low utilization of existing generation capacity; extremely high and
uncompetitive power rates; poor quality of service to consumers; dismal to forgettable performance of the
government power sector; high system losses; and an inability to develop a clear strategy for overcoming
these shortcomings.
Thus, the EPIRA provides a framework for the restructuring of the industry, including the privatization of
the assets of the National Power Corporation (NPC), the transition to a competitive structure, and the
delineation of the roles of various government agencies and the private entities. The law ordains the
division of the industry into four (4) distinct sectors, namely: generation, transmission, distribution and
supply.
Corollarily, the NPC generating plants have to privatized and its transmission business spun off and
privatized thereafter.67
Finally, every law has in its favor the presumption of constitutionality, and to justify its nullification, there
must be a clear and unequivocal breach of the Constitution and not one that is doubtful, speculative, or
argumentative.68 Indubitably, petitioners failed to overcome this presumption in favor of the EPIRA. We
find no clear violation of the Constitution which would warrant a pronouncement that Sec. 34 of the
EPIRA and Rule 18 of its IRR are unconstitutional and void.
WHEREFORE, the instant case is hereby DISMISSED for lack of merit.
81
SO ORDERED.
JESUS GARCIA VS HON RAY ALAN DRILON
Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or 93 percent
of a total population of 93.3 million – adhering to the teachings of Jesus Christ.1 Yet, the admonition for
husbands to love their wives as their own bodies just as Christ loved the church and gave himself up for
her2 failed to prevent, or even to curb, the pervasiveness of violence against Filipino women. The
National Commission on the Role of Filipino Women (NCRFW) reported that, for the years 2000-2003,
"female violence comprised more than 90o/o of all forms of abuse and violence and more than 90% of
these reported cases were committed by the women's intimate partners such as their husbands and live-in
partners."3
Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress enacted
Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence Against Women and Their Children,
Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes." It
took effect on March 27, 2004.4
R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and their
children (VAWC) perpetrated by women's intimate partners, i.e, husband; former husband; or any person
who has or had a sexual or dating relationship, or with whom the woman has a common child.5 The law
provides for protection orders from the barangay and the courts to prevent the commission of further acts
of VAWC; and outlines the duties and responsibilities of barangay officials, law enforcers, prosecutors
and court personnel, social workers, health care providers, and other local government officials in
responding to complaints of VAWC or requests for assistance.
A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of the
equal protection and due process clauses, and an undue delegation of judicial power to barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her minor
children, a verified petition6 (Civil Case No. 06-797) before the Regional Trial Court (RTC) of Bacolod
City for the issuance of a Temporary Protection Order (TPO) against her husband, Jesus C. Garcia
(petitioner), pursuant to R.A. 9262. She claimed to be a victim of physical abuse; emotional,
psychological, and economic violence as a result of marital infidelity on the part of petitioner, with threats
of deprivation of custody of her children and of financial support.7
Private respondent's claims
Private respondent married petitioner in 2002 when she was 34 years old and the former was eleven years
her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the natural child
of petitioner but whom private respondent adopted; Jessie Anthone J. Garcia, 6 years old; and Joseph
Eduard J. Garcia, 3 years old.8
Private respondent described herself as a dutiful and faithful wife, whose life revolved around her
husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is dominant, controlling, and
demands absolute obedience from his wife and children. He forbade private respondent to pray, and
deliberately isolated her from her friends. When she took up law, and even when she was already working
part time at a law office, petitioner trivialized her ambitions and prevailed upon her to just stay at home.

He was often jealous of the fact that his attractive wife still catches the eye of some men, at one point
threatening that he would have any man eyeing her killed.9
Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's Bank,
Bacolod City, who is the godmother of one of their sons. Petitioner admitted to the affair when private
respondent confronted him about it in 2004. He even boasted to the household help about his sexual
relations with said bank manager. Petitioner told private respondent, though, that he was just using the
woman because of their accounts with the bank.10
Petitioner's infidelity spawned a series of fights that left private respondent physically and emotionally
wounded. In one of their quarrels, petitioner grabbed private respondent on both arms and shook her with
such force that caused bruises and hematoma. At another time, petitioner hit private respondent forcefully
on the lips that caused some bleeding. Petitioner sometimes turned his ire on their daughter, Jo-Ann, who
had seen the text messages he sent to his paramour and whom he blamed for squealing on him. He beat Jo-
Ann on the chest and slapped her many times. When private respondent decided to leave petitioner, Jo-
Ann begged her mother to stay for fear that if the latter leaves, petitioner would beat her up. Even the
small boys are aware of private respondent's sufferings. Their 6-year-old son said that when he grows up,
he would beat up his father because of his cruelty to private respondent.11
All the emotional and psychological turmoil drove private respondent to the brink of despair. On
December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was found by her son
bleeding on the floor. Petitioner simply fled the house instead of taking her to the hospital. Private
respondent was hospitalized for about seven (7) days in which time petitioner never bothered to visit, nor
apologized or showed pity on her. Since then, private respondent has been undergoing therapy almost
every week and is taking anti-depressant medications.12
When private respondent informed the management of Robinson's Bank that she intends to file charges
against the bank manager, petitioner got angry with her for jeopardizing the manager's job. He then packed
his things and told private respondent that he was leaving her for good. He even told private respondent's
mother, who lives with them in the family home, that private respondent should just accept his
extramarital affair since he is not cohabiting with his paramour and has not sired a child with her.13
Private respondent is determined to separate from petitioner but she is afraid that he would take her
children from her and deprive her of financial support. Petitioner had previously warned her that if she
goes on a legal battle with him, she would not get a single centavo.14
Petitioner controls the family businesses involving mostly the construction of deep wells. He is the
President of three corporations – 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros
Trading Corporation – of which he and private respondent are both stockholders. In contrast to the
absolute control of petitioner over said corporations, private respondent merely draws a monthly salary of
₱20,000.00 from one corporation only, the Negros Rotadrill Corporation. Household expenses amounting
to not less than ₱200,000.00 a month are paid for by private respondent through the use of credit cards,
which, in turn, are paid by the same corporation together with the bills for utilities.15
On the other hand, petitioner receives a monthly salary of ₱60,000.00 from Negros Rotadrill Corporation,
and enjoys unlimited cash advances and other benefits in hundreds of thousands of pesos from the
corporations.16 After private respondent confronted him about the affair, petitioner forbade her to hold
office at JBTC Building, Mandalagan, where all the businesses of the corporations are conducted, thereby
depriving her of access to full information about said businesses. Until the filing of the petition a quo,
petitioner has not given private respondent an accounting of the businesses the value of which she had
helped raise to millions of pesos.17
Action of the RTC of Bacolod City
82
Finding reasonable ground to believe that an imminent danger of violence against the private respondent
and her children exists or is about to recur, the RTC issued a TPO18 on March 24, 2006 effective for thirty
(30) days, which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the conjugal dwelling or family home within 24
hours from receipt of the Temporary Restraining Order and if he refuses, ordering that he be removed by
police officers from the conjugal dwelling; this order is enforceable notwithstanding that the house is
under the name of 236 Realty Holdings Inc. (Republic Act No. 9262 states "regardless of ownership"), this
is to allow the Petitioner (private respondent herein) to enter the conjugal dwelling without any danger
from the Respondent.
After the Respondent leaves or is removed from the conjugal dwelling, or anytime the Petitioner decides
to return to the conjugal dwelling to remove things, the Petitioner shall be assisted by police officers when
re-entering the family home.
The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March 2006 because of
the danger that the Respondent will attempt to take her children from her when he arrives from Manila and
finds out about this suit.
b) To stay away from the petitioner and her children, mother and all her household help and driver from a
distance of 1,000 meters, and shall not enter the gate of the subdivision where the Petitioner may be
temporarily residing.
c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner, directly or
indirectly, or through other persons, or contact directly or indirectly her children, mother and household
help, nor send gifts, cards, flowers, letters and the like. Visitation rights to the children may be subject of a
modified TPO in the future.
d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and ordering the
Philippine National Police Firearms and Explosives Unit and the Provincial Director of the PNP to cancel
all the Respondent's firearm licenses. He should also be ordered to surrender any unlicensed firearms in
his possession or control.
e) To pay full financial support for the Petitioner and the children, including rental of a house for them,
and educational and medical expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits, bonuses and other cash he received from all the
corporations from 1 January 2006 up to 31 March 2006, which himself and as President of the
corporations and his Comptroller, must submit to the Court not later than 2 April 2006. Thereafter, an
accounting of all these funds shall be reported to the court by the Comptroller, copy furnished to the
Petitioner, every 15 days of the month, under pain of Indirect Contempt of Court.
h) To ensure compliance especially with the order granting support pendente lite, and considering the
financial resources of the Respondent and his threat that if the Petitioner sues she will not get a single
centavo, the Respondent is ordered to put up a BOND TO KEEP THE PEACE in the amount of FIVE
MILLION PESOS, in two sufficient sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended TPO,20
effective for thirty (30) days, which included the following additional provisions:
i) The petitioners (private respondents herein) are given the continued use of the Nissan Patrol and the
Starex Van which they are using in Negros Occidental.
j) The petitioners are given the continued use and occupation of the house in Parañaque, the continued use
of the Starex van in Metro Manila, whenever they go to Manila.
k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred Fifty Thousand
Pesos (Php 150,000.00) per month plus rental expenses of Fifty Thousand Pesos (Php 50,000.00) per
month until the matter of support could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for
Renewal of the TPO21 seeking the denial of the renewal of the TPO on the grounds that it did not (1)
comply with the three-day notice rule, and (2) contain a notice of hearing. He further asked that the TPO
be modified by (1) removing one vehicle used by private respondent and returning the same to its rightful
owner, the J-Bros Trading Corporation, and (2) cancelling or reducing the amount of the bond from
₱5,000,000.00 to a more manageable level at ₱100,000.00.
Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow him
visitation rights to his children.
On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the following
modifications prayed for by private respondent:
a) That respondent (petitioner herein) return the clothes and other personal belongings of Rosalie and her
children to Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours from receipt of the Temporary
Protection Order by his counsel, otherwise be declared in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture and equipment in the conjugal house in
Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours from receipt of the Temporary
Protection Order by his counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to remove
Respondent from the conjugal dwelling within eight (8) hours from receipt of the Temporary Protection
Order by his counsel, and that he cannot return until 48 hours after the petitioners have left, so that the
petitioner Rosalie and her representatives can remove things from the conjugal home and make an
inventory of the household furniture, equipment and other things in the conjugal home, which shall be
submitted to the Court.
d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and Php25,000.00 for
clothes of the three petitioners (sic) children within 24 hours from receipt of the Temporary Protection
Order by his counsel, otherwise be declared in indirect contempt of Court;
e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of Court within 24
hours from receipt of the Temporary Protection Order by his counsel;
f) That respondent shall pay petitioner educational expenses of the children upon presentation of proof of
payment of such expenses.23
83
Claiming that petitioner continued to deprive them of financial support; failed to faithfully comply with
the TPO; and committed new acts of harassment against her and their children, private respondent filed
another application24 for the issuance of a TPO ex parte. She alleged inter
alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the latter was
purportedly no longer president, with the end in view of recovering the Nissan Patrol and Starex Van used
by private respondent and the children. A writ of replevin was served upon private respondent by a group
of six or seven policemen with long firearms that scared the two small boys, Jessie Anthone and Joseph
Eduard.25
While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to kidnap
him, which incident traumatized the boy resulting in his refusal to go back to school. On another occasion,
petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and threatened her.26 The incident was
reported to the police, and Jo-Ann subsequently filed a criminal complaint against her father for violation
of R.A. 7610, also known as the "Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the
conjugal home of a complaint for kidnapping and illegal detention against private respondent. This came
about after private respondent, armed with a TPO, went to said home to get her and her children's
belongings. Finding some of her things inside a housemaid's (Sheryl Jamola) bag in the maids' room,
private respondent filed a case for qualified theft against Jamola.27
On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing, personally or through another, acts of violence
against the offended party;
2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating in any form
with the offended party, either directly or indirectly;
3) Required to stay away, personally or through his friends, relatives, employees or agents, from all the
Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's three brothers, her mother Primitiva
Jaype, cook Novelita Caranzo, driver Romeo Hontiveros, laundrywoman Mercedita Bornales, security
guard Darwin Gayona and the petitioner's other household helpers from a distance of 1,000 meters, and
shall not enter the gate of the subdivision where the Petitioners are temporarily residing, as well as from
the schools of the three children; Furthermore, that respondent shall not contact the schools of the children
directly or indirectly in any manner including, ostensibly to pay for their tuition or other fees directly,
otherwise he will have access to the children through the schools and the TPO will be rendered nugatory;
4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to the Court;
5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00 for rental for
the period from August 6 to September 6, 2006; and support in arrears from March 2006 to August 2006
the total amount of Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a Starex van with
Plate No. FFD 991 and should the respondent fail to deliver said vehicles, respondent is ordered to provide
the petitioner another vehicle which is the one taken by J Bros Tading;

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the conjugal assets, or
those real properties in the name of Jesus Chua Garcia only and those in which the conjugal partnership of
gains of the Petitioner Rosalie J. Garcia and respondent have an interest in, especially the conjugal home
located in No. 14, Pitimini St., Capitolville Subdivision, Bacolod City, and other properties which are
conjugal assets or those in which the conjugal partnership of gains of Petitioner Rosalie J. Garcia and the
respondent have an interest in and listed in Annexes "I," "I-1," and "I-2," including properties covered by
TCT Nos. T-186325 and T-168814;
9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a copy of this
TEMPORARY PROTECTION ORDER and are ordered not to allow the transfer, sale, encumbrance or
disposition of these above-cited properties to any person, entity or corporation without the personal
presence of petitioner Rosalie J. Garcia, who shall affix her signature in the presence of the Register of
Deeds, due to the fear of petitioner Rosalie that her signature will be forged in order to effect the
encumbrance or sale of these properties to defraud her or the conjugal partnership of gains.
In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for another ten (10)
days, and gave petitioner a period of five (5) days within which to show cause why the TPO should not be
renewed, extended, or modified. Upon petitioner's manifestation,30 however, that he has not received a
copy of private respondent's motion to modify/renew the TPO, the trial court directed in its Order31 dated
October 6, 2006 that petitioner be furnished a copy of said motion. Nonetheless, an Order32 dated a day
earlier, October 5, had already been issued renewing the TPO dated August 23, 2006. The pertinent
portion is quoted hereunder:
xxxx
x x x it appearing further that the hearing could not yet be finally terminated, the Temporary Protection
Order issued on August 23, 2006 is hereby renewed and extended for thirty (30) days and continuously
extended and renewed for thirty (30) days, after each expiration, until further orders, and subject to such
modifications as may be ordered by the court.
After having received a copy of the foregoing Order, petitioner no longer submitted the required comment
to private respondent's motion for renewal of the TPO arguing that it would only be an "exercise in
futility."33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a
petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and temporary
restraining order, challenging (1) the constitutionality of R.A. 9262 for being violative of the due process
and the equal protection clauses, and (2) the validity of the modified TPO issued in the civil case for being
"an unwanted product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order36 (TRO) against the
enforcement of the TPO, the amended TPOs and other orders pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court dismissed36 the petition for failure of
petitioner to raise the constitutional issue in his pleadings before the trial court in the civil case, which is
clothed with jurisdiction to resolve the same. Secondly, the challenge to the validity
of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by the trial
court constituted a collateral attack on said law.
84
His motion for reconsideration of the foregoing Decision having been denied in the Resolution37 dated
August 14, 2007, petitioner is now before us alleging that –
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE
ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND
THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE
LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT
R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE.
III.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262
RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE
POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID
AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL
POWER TO THE BARANGAY OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by petitioner against the constitutionality of R.A. 9262, we
shall first tackle the propriety of the dismissal by the appellate court of the petition for prohibition (CA-
G.R. CEB-SP. No. 01698) filed by petitioner.
As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if not
raised in the pleadings, ordinarily it may not be raised in the trial, and if not raised in the trial court, it will
not be considered on appeal.39 Courts will not anticipate a question of constitutional law in advance of the
necessity of deciding it.40
In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod City,
petitioner argues that the Family Court has limited authority and jurisdiction that is "inadequate to tackle
the complex issue of constitutionality."41
We disagree.
Family Courts have authority and jurisdiction to consider the constitutionality of a statute.

At the outset, it must be stressed that Family Courts are special courts, of the same level as Regional Trial
Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of 1997," family courts have
exclusive original jurisdiction to hear and decide cases of domestic violence against women and
children.42 In accordance with said law, the Supreme Court designated from among the branches of the
Regional Trial Courts at least one Family Court in each of several key cities identified.43 To achieve
harmony with the first mentioned law, Section 7 of R.A. 9262 now provides that Regional Trial Courts
designated as Family Courts shall have original and exclusive jurisdiction over cases of VAWC defined
under the latter law, viz:
SEC. 7. Venue. – The Regional Trial Court designated as a Family Court shall have original and exclusive
jurisdiction over cases of violence against women and their children under this law. In the absence of such
court in the place where the offense was committed, the case shall be filed in the Regional Trial Court
where the crime or any of its elements was committed at the option of the complainant. (Emphasis
supplied)
Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of authority as a
court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal, special
proceedings, land registration, guardianship, naturalization, admiralty or insolvency.44 It is settled that
RTCs have jurisdiction to resolve the constitutionality of a statute,45 "this authority being embraced in the
general definition of the judicial power to determine what are the valid and binding laws by the criterion
of their conformity to the fundamental law."46 The Constitution vests the power of judicial review or the
power to declare the constitutionality or validity of a law, treaty, international or executive agreement,
presidential decree, order, instruction, ordinance, or regulation not only in this Court, but in all RTCs.47
We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the Constitution contemplates that the inferior
courts should have jurisdiction in cases involving constitutionality of any treaty or law, for it speaks of
appellate review of final judgments of inferior courts in cases where such constitutionality happens to be
in issue." Section 5, Article VIII of the 1987 Constitution reads in part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
xxxx
Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have been
raised at the earliest opportunity in his Opposition to the petition for protection order before the RTC of
Bacolod City, which had jurisdiction to determine the same, subject to the review of this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays
down a new kind of procedure requiring the respondent to file an opposition to the petition and not an
answer.49 Thus:
SEC. 20. Opposition to petition. – (a) The respondent may file an opposition to the petition which he
himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why a
temporary or permanent protection order should not be issued.
85
(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party complaint,
but any cause of action which could be the subject thereof may be litigated in a separate civil action.
(Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim and third-
party complaint are to be excluded from the opposition, the issue of constitutionality cannot likewise be
raised therein. A counterclaim is defined as any claim for money or other relief which a defending party
may have against an opposing party.50 A cross-claim, on the other hand, is any claim by one party against
a co-party arising out of the transaction or occurrence that is the subject matter either of the original action
or of a counterclaim therein.51 Finally, a third-party complaint is a claim that a defending party may, with
leave of court, file against a person not a party to the action for contribution, indemnity, subrogation or
any other relief, in respect of his opponent's claim.52 As pointed out by Justice Teresita J. Leonardo-De
Castro, the unconstitutionality of a statute is not a cause of action that could be the subject of a
counterclaim, cross-claim or a third-party complaint. Therefore, it is not prohibited from being raised in
the opposition in view of the familiar maxim expressio unius est exclusio alterius.
Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the right of
private respondent to a protection order is founded solely on the very statute the validity of which is being
attacked53 by petitioner who has sustained, or will sustain, direct injury as a result of its enforcement. The
alleged unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid cause for the non-issuance
of a protection order.
That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred petitioner
from raising the same in his Opposition. The question relative to the constitutionality of a statute is one of
law which does not need to be supported by evidence.54 Be that as it may, Section 25 of A.M. No. 04-10-
11-SC nonetheless allows the conduct of a hearing to determine legal issues, among others, viz:
SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it may issue
an order containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been marked and will be presented;
(d) Names of witnesses who will be ordered to present their direct testimonies in the form of affidavits;
and
(e) Schedule of the presentation of evidence by both parties which shall be done in one day, to the extent
possible, within the 30-day period of the effectivity of the temporary protection order issued. (Emphasis
supplied)
To obviate potential dangers that may arise concomitant to the conduct of a hearing when necessary,
Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection order issued is due to
expire, the trial court may extend or renew the said order for a period of thirty (30) days each time until
final judgment is rendered. It may likewise modify the extended or renewed temporary protection order as
may be necessary to meet the needs of the parties. With the private respondent given ample protection,
petitioner could proceed to litigate the constitutional issues, without necessarily running afoul of the very
purpose for the adoption of the rules on summary procedure.
In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition with prayer
for injunction and temporary restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may have

proceeded upon an honest belief that if he finds succor in a superior court, he could be granted an
injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the filing of a
petition for certiorari, mandamus or prohibition against any interlocutory order issued by the trial court.
Hence, the 60-day TRO issued by the appellate court in this case against the enforcement of the TPO, the
amended TPOs and other orders pursuant thereto was improper, and it effectively hindered the case from
taking its normal course in an expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited. Moreover, if
the appeal of a judgment granting permanent protection shall not stay its enforcement,55 with more reason
that a TPO, which is valid only for thirty (30) days at a time,56 should not be enjoined.
The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a litigant to
have the same enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the United States declared,
thus:
Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate
and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are
unconstitutional. No citizen or member of the community is immune from prosecution, in good faith, for
his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized
and, hence, unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to
prevent irreparable injury to the plaintiff who seeks its aid. (Citations omitted)
The sole objective of injunctions is to preserve the status quo until the trial court hears fully the merits of
the case. It bears stressing, however, that protection orders are granted ex parte so as to protect women and
their children from acts of violence. To issue an injunction against such orders will defeat the very purpose
of the law against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine novel
issues, or issues of first impression, with far-reaching implications. We have, time and again, discharged
our solemn duty as final arbiter of constitutional issues, and with more reason now, in view of private
respondent's plea in her Comment59 to the instant Petition that we should put the challenge to the
constitutionality of R.A. 9262 to rest. And so we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child abuse,
which could very well be committed by either the husband or the wife, gender alone is not enough basis to
deprive the husband/father of the remedies under the law.60
A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which became R.A. 9262, reveals
that while the sponsor, Senator Luisa Pimentel-Ejercito (better known as Senator Loi Estrada), had
originally proposed what she called a "synthesized measure"62 – an amalgamation of two measures,
namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in Intimate Relationships
Act"63 – providing protection to "all family members, leaving no one in isolation" but at the same time
giving special attention to women as the "usual victims" of violence and abuse,64 nonetheless, it was
eventually agreed that men be denied protection under the same measure. We quote pertinent portions of
the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups have
expressed concerns and relayed these concerns to me that if we are to include domestic violence apart
from against women as well as other members of the household, including children or the husband, they
86
fear that this would weaken the efforts to address domestic violence of which the main victims or the bulk
of the victims really are the wives, the spouses or the female partners in a relationship. We would like to
place that on record. How does the good Senator respond to this kind of observation?
Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR" Women in
Intimate Relationship. They do not want to include men in this domestic violence. But plenty of men are
also being abused by women. I am playing safe so I placed here members of the family, prescribing
penalties therefor and providing protective measures for victims. This includes the men, children, live-in,
common-law wives, and those related with the family.65
xxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the discussion whether to limit this to women and not
to families which was the issue of the AWIR group. The understanding that I have is that we would be
having a broader scope rather than just women, if I remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong.
However, I believe that there is a need to protect women's rights especially in the domestic environment.
As I said earlier, there are nameless, countless, voiceless women who have not had the opportunity to file
a case against their spouses, their live-in partners after years, if not decade, of battery and abuse. If we
broaden the scope to include even the men, assuming they can at all be abused by the women or their
spouses, then it would not equalize the already difficult situation for women, Mr. President.
I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure that the
men in this Chamber who love their women in their lives so dearly will agree with this representation.
Whether we like it or not, it is an unequal world. Whether we like it or not, no matter how empowered the
women are, we are not given equal opportunities especially in the domestic environment where the macho
Filipino man would always feel that he is stronger, more superior to the Filipino woman.
xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the committee came up with this bill because the
family members have been included in this proposed measure since the other members of the family other
than women are also possible victims of violence. While women are most likely the intended victims, one
reason incidentally why the measure focuses on women, the fact remains that in some relatively few cases,
men also stand to be victimized and that children are almost always the helpless victims of violence. I am
worried that there may not be enough protection extended to other family members particularly children
who are excluded. Although Republic Act No. 7610, for instance, more or less, addresses the special

needs of abused children. The same law is inadequate. Protection orders for one are not available in said
law.
I am aware that some groups are apprehensive about granting the same protection to men, fearing that they
may use this law to justify their abusive behavior against women. However, we should also recognize that
there are established procedures and standards in our courts which give credence to evidentiary support
and cannot just arbitrarily and whimsically entertain baseless complaints.
Mr. President, this measure is intended to harmonize family relations and to protect the family as the basic
social institution. Though I recognize the unequal power relations between men and women in our society,
I believe we have an obligation to uphold inherent rights and dignity of both husband and wife and their
immediate family members, particularly children.
While I prefer to focus mainly on women, I was compelled to include other family members as a critical
input arrived at after a series of consultations/meetings with various NGOs, experts, sports groups and
other affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other senators.
Senator Sotto. Yes, with the permission of the two ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.
Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would be
removing the "men and children" in this particular bill and focus specifically on women alone. That will
be the net effect of that proposed amendment. Hearing the rationale mentioned by the distinguished
sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she is inclined to accept the
proposed amendment of Senator Legarda.
I am willing to wait whether she is accepting this or not because if she is going to accept this, I will
propose an amendment to the amendment rather than object to the amendment, Mr. President.
xxxx
Senator Estrada. The amendment is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to the amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished proponent of
the amendment. As a matter of fact, I tend to agree. Kung may maaabuso, mas malamang iyong babae
87
kaysa sa lalake. At saka iyong mga lalake, puwede na talagang magulpi iyan. Okey lang iyan. But I cannot
agree that we remove the children from this particular measure.
So, if I may propose an amendment –
The President Pro Tempore. To the amendment.
Senator Sotto. – more than the women, the children are very much abused. As a matter of fact, it is not
limited to minors. The abuse is not limited to seven, six, 5-year-old children. I have seen 14, 15-year-old
children being abused by their fathers, even by their mothers. And it breaks my heart to find out about
these things.
Because of the inadequate existing law on abuse of children, this particular measure will update that. It
will enhance and hopefully prevent the abuse of children and not only women.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill but not the
children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
The President Pro Tempore. Effectively then, it will be women AND CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment, as
amended, is approved.66
It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a statute.67
Hence, we dare not venture into the real motivations and wisdom of the members of Congress in limiting
the protection against violence and abuse under R.A. 9262 to women and children only. No proper
challenge on said grounds may be entertained in this proceeding. Congress has made its choice and it is
not our prerogative to supplant this judgment. The choice may be perceived as erroneous but even then,
the remedy against it is to seek its amendment or repeal by the legislative. By the principle of separation of
powers, it is the legislative that determines the necessity, adequacy, wisdom and expediency of any law.68
We only step in when there is a violation of the Constitution. However, none was sufficiently shown in
this case.
R.A. 9262 does not violate the guaranty of equal protection of the laws.
Equal protection simply requires that all persons or things similarly situated should be treated alike, both
as to rights conferred and responsibilities imposed. The oft-repeated disquisition in the early case of
Victoriano v. Elizalde Rope Workers' Union69 is instructive:
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child should be affected alike by a statute.
Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on
persons according to the circumstances surrounding them. It guarantees equality, not identity of rights.
The Constitution does not require that things which are different in fact be treated in law as though they

were the same. The equal protection clause does not forbid discrimination as to things that are different. It
does not prohibit legislation which is limited either in the object to which it is directed or by the territory
within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as
in the other departments of knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not invalid because of simple
inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere
fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid
classification is that it be reasonable, which means that the classification should be based on substantial
distinctions which make for real differences; that it must be germane to the purpose of the law; that it must
not be limited to existing conditions only; and that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary. (Emphasis supplied)
Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a valid
classification as shall hereinafter be discussed and, as such, did not violate the equal protection clause by
favoring women over men as victims of violence and abuse to whom the State extends its protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the fact that women are more likely than men
to be victims of violence; and the widespread gender bias and prejudice against women all make for real
differences justifying the classification under the law. As Justice McIntyre succinctly states, "the
accommodation of differences ... is the essence of true equality."70
A. Unequal power relationship between men and women
According to the Philippine Commission on Women (the National Machinery for Gender Equality and
Women's Empowerment), violence against women (VAW) is deemed to be closely linked with the
unequal power relationship between women and men otherwise known as "gender-based violence".
Societal norms and traditions dictate people to think men are the leaders, pursuers, providers, and take on
dominant roles in society while women are nurturers, men's companions and supporters, and take on
subordinate roles in society. This perception leads to men gaining more power over women. With power
comes the need to control to retain that power. And VAW is a form of men's expression of controlling
women to retain power.71
The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution
48/104 on the Declaration on Elimination of Violence Against Women on December 20, 1993 stating that
"violence against women is a manifestation of historically unequal power relations between men and
women, which have led to domination over and discrimination against women by men and to the
prevention of the full advancement of women, and that violence against women is one of the crucial social
mechanisms by which women are forced into subordinate positions, compared with men."72
Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based violence and
developments in advocacies to eradicate VAW, in his remarks delivered during the Joint Launching of
R.A. 9262 and its Implementing Rules last October 27, 2004, the pertinent portions of which are quoted
hereunder:
History reveals that most societies sanctioned the use of violence against women. The patriarch of a
family was accorded the right to use force on members of the family under his control. I quote the early
studies:
88
Traditions subordinating women have a long history rooted in patriarchy – the institutional rule of men.
Women were seen in virtually all societies to be naturally inferior both physically and intellectually. In
ancient Western societies, women whether slave, concubine or wife, were under the authority of men. In
law, they were treated as property.
The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she endangered
his property right over her. Judaism, Christianity and other religions oriented towards the patriarchal
family strengthened the male dominated structure of society.
English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone has
been quoted in his commentaries as saying husband and wife were one and that one was the husband.
However, in the late 1500s and through the entire 1600s, English common law began to limit the right of
husbands to chastise their wives. Thus, common law developed the rule of thumb, which allowed
husbands to beat their wives with a rod or stick no thicker than their thumb.
In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict corporeal
punishment ceased. Even then, the preservation of the family was given more importance than preventing
violence to women.
The metamorphosis of the law on violence in the United States followed that of the English common law.
In 1871, the Supreme Court of Alabama became the first appellate court to strike down the common law
right of a husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her, spit in
her face or kick her about the floor, or to inflict upon her like indignities, is not now acknowledged by our
law... In person, the wife is entitled to the same protection of the law that the husband can invoke for
himself.
As time marched on, the women's advocacy movement became more organized. The temperance leagues
initiated it. These leagues had a simple focus. They considered the evils of alcoholism as the root cause of
wife abuse. Hence, they demonstrated and picketed saloons, bars and their husbands' other watering holes.
Soon, however, their crusade was joined by suffragette movements, expanding the liberation movement's
agenda. They fought for women's right to vote, to own property, and more. Since then, the feminist
movement was on the roll.
The feminist movement exposed the private invisibility of the domestic violence to the public gaze. They
succeeded in transforming the issue into an important public concern. No less than the United States
Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:
In an average 12-month period in this country, approximately two million women are the victims of severe
assaults by their male partners. In a 1985 survey, women reported that nearly one of every eight husbands
had assaulted their wives during the past year. The [American Medical Association] views these figures as
"marked underestimates," because the nature of these incidents discourages women from reporting them,
and because surveys typically exclude the very poor, those who do not speak English well, and women
who are homeless or in institutions or hospitals when the survey is conducted. According to the AMA,
"researchers on family violence agree that the true incidence of partner violence is probably double the
above estimates; or four million severely assaulted women per year."
Studies on prevalence suggest that from one-fifth to one-third of all women will be physically assaulted by
a partner or ex-partner during their lifetime... Thus on an average day in the United States, nearly 11,000
women are severely assaulted by their male partners. Many of these incidents involve sexual assault... In
families where wife beating takes place, moreover, child abuse is often present as well.
 89

Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of Incestuous Rape 38 46 26 22 28 27 19 23
abuse. Psychological abuse, particularly forced social and economic isolation of women, is also common. Attempted Rape 194 148 185 147 204 167 268 201
Acts of
Many victims of domestic violence remain with their abusers, perhaps because they perceive no superior Lasciviousness 580 536 382 358 445 485 745 625
alternative...Many abused women who find temporary refuge in shelters return to their husbands, in large Physical
part because they have no other source of income... Returning to one's abuser can be dangerous. Recent Injuries 3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588
Federal Bureau of Investigation statistics disclose that 8.8 percent of all homicide victims in the United Sexual
States are killed by their spouses...Thirty percent of female homicide victims are killed by their male Harassment 53 37 38 46 18 54 83 63
partners. RA 9262 218 924 1,269 2,387 3,599 5,285 9,974 9,021
Threats 319 223 199 182 220 208 374 213
Finally in 1994, the United States Congress enacted the Violence Against Women Act. Seduction 62 19 29 30 19 19 25 15
Concubinage 121 102 93 109 109 99 158 128
In the International front, the women's struggle for equality was no less successful. The United States RA 9208 17 11 16 24 34 152 190 62
Charter and the Universal Declaration of Human Rights affirmed the equality of all human beings. In Abduction
1979, the UN General Assembly adopted the landmark Convention on the Elimination of all Forms of /Kidnapping 29 16 34 23 28 18 25 22
Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also adopted the Unjust Vexation 90 50 59 59 83 703 183 155
Declaration on the Elimination of Violence Against Women. World conferences on the role and rights of Total 6,271 5,374 4,881 5,729 6,905 9,485 15,104 12,948
women have been regularly held in Mexico City, Copenhagen, Nairobi and Beijing. The UN itself *2011 report covers only from January to August
established a Commission on the Status of Women.
Source: Philippine National Police – Women and Children Protection Center (WCPC)
The Philippines has been in cadence with the half – and full – steps of all these women's movements. No
less than Section 14, Article II of our 1987 Constitution mandates the State to recognize the role of women On the other hand, no reliable estimates may be obtained on domestic abuse and violence against men in
in nation building and to ensure the fundamental equality before the law of women and men. Our Senate the Philippines because incidents thereof are relatively low and, perhaps, because many men will not even
has ratified the CEDAW as well as the Convention on the Rights of the Child and its two protocols. To attempt to report the situation. In the United Kingdom, 32% of women who had ever experienced
cap it all, Congress, on March 8, 2004, enacted Rep. Act No. 9262, entitled "An Act Defining Violence domestic violence did so four or five (or more) times, compared with 11% of the smaller number of men
Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties who had ever experienced domestic violence; and women constituted 89% of all those who had
therefor and for other Purposes." (Citations omitted) experienced 4 or more incidents of domestic violence.75 Statistics in Canada show that spousal violence
by a woman against a man is less likely to cause injury than the other way around (18 percent versus 44
B. Women are the "usual" and "most likely" percent). Men, who experience violence from their spouses are much less likely to live in fear of violence
at the hands of their spouses, and much less likely to experience sexual assault. In fact, many cases of
victims of violence. physical violence by a woman against a spouse are in self-defense or the result of many years of physical
or emotional abuse.76
At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women and
children show that – While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the
Philippines, the same cannot render R.A. 9262 invalid.
x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of total cases
reported (9,903). And for the first semester of 2003, there were 2,381 reported cases out of 4,354 cases In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn vehicles to
which represent 54.31%. xxx (T)he total number of women in especially difficult circumstances served by pick up, gather and deposit in receptacles the manure emitted or discharged by their vehicle-drawing
the Department of Social Welfare and Development (DSWD) for the year 2002, there are 1,417 physically animals in any public highways, streets, plazas, parks or alleys, said ordinance was challenged as violative
abused/maltreated cases out of the total of 5,608 cases. xxx (T)here are 1,091 DSWD cases out of a total of the guaranty of equal protection of laws as its application is limited to owners and drivers of vehicle-
number of 3,471 cases for the first semester of 2003. Female violence comprised more than 90% of all drawing animals and not to those animals, although not utilized, but similarly pass through the same
forms of abuse and violence and more than 90% of these reported cases were committed by the women's streets.
intimate partners such as their husbands and live-in partners.73
The ordinance was upheld as a valid classification for the reason that, while there may be non-vehicle-
Recently, the Philippine Commission on Women presented comparative statistics on violence against drawing animals that also traverse the city roads, "but their number must be negligible and their
women across an eight-year period from 2004 to August of 2011 with violations under R.A. 9262 ranking appearance therein merely occasional, compared to the rig-drawing ones, as not to constitute a menace to
first among the different VAW categories since its implementation in 2004,74 thus: the health of the community."77 The mere fact that the legislative classification may result in actual
inequality is not violative of the right to equal protection, for every classification of persons or things for
Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011* regulation by law produces inequality in some degree, but the law is not thereby rendered invalid.78

Reported C. Gender bias and prejudices

Cases 2004 2005 2006 2007 2008 2009 2010 2011
Rape 997 927 659 837 811 770 1,042 832

From the initial report to the police through prosecution, trial, and sentencing, crimes against women are
often treated differently and less seriously than other crimes. This was argued by then United States
Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence Against Women Act
(VAWA), in defending the civil rights remedy as a valid exercise of the U.S. Congress' authority under the
Commerce and Equal Protection Clauses. He stressed that the widespread gender bias in the U.S. has
institutionalized historic prejudices against victims of rape or domestic violence, subjecting them to
"double victimization" – first at the hands of the offender and then of the legal system.79
Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that
"(w)henever violence occurs in the family, the police treat it as a private matter and advise the parties to
settle the conflict themselves. Once the complainant brings the case to the prosecutor, the latter is hesitant
to file the complaint for fear that it might later be withdrawn. This lack of response or reluctance to be
involved by the police and prosecution reinforces the escalating, recurring and often serious nature of
domestic violence."80
Sadly, our own courts, as well, have exhibited prejudices and biases against our women.
In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct
Unbecoming of a Judge. He used derogatory and irreverent language in reference to the complainant in a
petition for TPO and PPO under R.A. 9262, calling her as "only a live-in partner" and presenting her as an
"opportunist" and a "mistress" in an "illegitimate relationship." Judge Amila even called her a "prostitute,"
and accused her of being motivated by "insatiable greed" and of absconding with the contested
property.81 Such remarks betrayed Judge Amila's prejudices and lack of gender sensitivity.
The enactment of R.A. 9262 aims to address the discrimination brought about by biases and prejudices
against women. As emphasized by the CEDAW Committee on the Elimination of Discrimination against
Women, addressing or correcting discrimination through specific measures focused on women does not
discriminate against men.82 Petitioner's contention,83 therefore, that R.A. 9262 is discriminatory and that
it is an "anti-male," "husband-bashing," and "hate-men" law deserves scant consideration. As a State Party
to the CEDAW, the Philippines bound itself to take all appropriate measures "to modify the social and
cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and
customary and all other practices which are based on the idea of the inferiority or the superiority of either
of the sexes or on stereotyped roles for men and women."84 Justice Puno correctly pointed out that "(t)he
paradigm shift changing the character of domestic violence from a private affair to a public offense will
require the development of a distinct mindset on the part of the police, the prosecution and the judges."85
II. The classification is germane to the purpose of the law.
The distinction between men and women is germane to the purpose of R.A. 9262, which is to address
violence committed against women and children, spelled out in its Declaration of Policy, as follows:
SEC. 2. Declaration of Policy. – It is hereby declared that the State values the dignity of women and
children and guarantees full respect for human rights. The State also recognizes the need to protect the
family and its members particularly women and children, from violence and threats to their personal safety
and security.
Towards this end, the State shall exert efforts to address violence committed against women and children
in keeping with the fundamental freedoms guaranteed under the Constitution and the provisions of the
Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of
Discrimination Against Women, Convention on the Rights of the Child and other international human
rights instruments of which the Philippines is a party.
90
In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August 5,
1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the Philippines on October
6, 2003.86 This Convention mandates that State parties shall accord to women equality with men before
the law87 and shall take all appropriate measures to eliminate discrimination against women in all matters
relating to marriage and family relations on the basis of equality of men and women.88 The Philippines
likewise ratified the Convention on the Rights of the Child and its two protocols.89 It is, thus, bound by
said Conventions and their respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was promulgated,
but to future conditions as well, for as long as the safety and security of women and their children are
threatened by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3 thereof
defines VAWC as:
x x x any act or a series of acts committed by any person against a woman who is his wife, former wife, or
against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a
common child, or against her child whether legitimate or illegitimate, within or without the family abode,
which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic
abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of
liberty. It includes, but is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It
includes, but is not limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making
demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body,
forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do
indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or
sleep together in the same room with the abuser;
b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force,
physical or other harm or threat of physical or other harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional
suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property,
public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes causing or allowing
the victim to witness the physical, sexual or psychological abuse of a member of the family to which the
victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful
or unwanted deprivation of the right to custody and/or visitation of common children.
D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which
includes, but is not limited to the following:

1. withdrawal of financial support or preventing the victim from engaging in any legitimate profession,
occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious
and moral grounds as defined in Article 73 of the Family Code;
2. deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the
conjugal, community or property owned in common;
3. destroying household property;
4. controlling the victims' own money or properties or solely controlling the conjugal money or properties.
It should be stressed that the acts enumerated in the aforequoted provision are attributable to research that
has exposed the dimensions and dynamics of battery. The acts described here are also found in the U.N.
Declaration on the Elimination of Violence Against Women.90 Hence, the argument advanced by
petitioner that the definition of what constitutes abuse removes the difference between violent action and
simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and ambiguous that will confuse petitioner in his
defense. The acts enumerated above are easily understood and provide adequate contrast between the
innocent and the prohibited acts. They are worded with sufficient definiteness that persons of ordinary
intelligence can understand what conduct is prohibited, and need not guess at its meaning nor differ in its
application.91 Yet, petitioner insists92 that phrases like "depriving or threatening to deprive the woman or
her child of a legal right," "solely controlling the conjugal or common money or properties," "marital
infidelity," and "causing mental or emotional anguish" are so vague that they make every quarrel a case of
spousal abuse. However, we have stressed that the "vagueness" doctrine merely requires a reasonable
degree of certainty for the statute to be upheld – not absolute precision or mathematical exactitude, as
petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it
might have been more explicit in its wordings or detailed in its provisions.93
There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the culprit.
As defined above, VAWC may likewise be committed "against a woman with whom the person has or had
a sexual or dating relationship." Clearly, the use of the gender-neutral word "person" who has or had a
sexual or dating relationship with the woman encompasses even lesbian relationships. Moreover, while the
law provides that the offender be related or connected to the victim by marriage, former marriage, or a
sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the
Revised Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica
Mari L. Go-Tan, the victim, were held to be proper respondents in the case filed by the latter upon the
allegation that they and their son (Go-Tan's husband) had community of design and purpose in tormenting
her by giving her insufficient financial support; harassing and pressuring her to be ejected from the family
home; and in repeatedly abusing her verbally, emotionally, mentally and physically.
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all protections
afforded by the due process clause of the Constitution. Says he: "On the basis of unsubstantiated
allegations, and practically no opportunity to respond, the husband is stripped of family, property, guns,
money, children, job, future employment and reputation, all in a matter of seconds, without an inkling of
what happened."95
A protection order is an order issued to prevent further acts of violence against women and their children,
their family or household members, and to grant other necessary reliefs. Its purpose is to safeguard the
91
offended parties from further harm, minimize any disruption in their daily life and facilitate the
opportunity and ability to regain control of their life.96
"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is
afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to
safeguard the victim from greater risk of violence; to accord the victim and any designated family or
household member safety in the family residence, and to prevent the perpetrator from committing acts that
jeopardize the employment and support of the victim. It also enables the court to award temporary custody
of minor children to protect the children from violence, to prevent their abduction by the perpetrator and to
ensure their financial support."97
The rules require that petitions for protection order be in writing, signed and verified by the petitioner98
thereby undertaking full responsibility, criminal or civil, for every allegation therein. Since "time is of the
essence in cases of VAWC if further violence is to be prevented,"99 the court is authorized to issue ex
parte a TPO after raffle but before notice and hearing when the life, limb or property of the victim is in
jeopardy and there is reasonable ground to believe that the order is necessary to protect the victim from the
immediate and imminent danger of VAWC or to prevent such violence, which is about to recur.100
There need not be any fear that the judge may have no rational basis to issue an ex parte order. The victim
is required not only to verify the allegations in the petition, but also to attach her witnesses' affidavits to
the petition.101
The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process. Just
like a writ of preliminary attachment which is issued without notice and hearing because the time in which
the hearing will take could be enough to enable the defendant to abscond or dispose of his property,102 in
the same way, the victim of VAWC may already have suffered harrowing experiences in the hands of her
tormentor, and possibly even death, if notice and hearing were required before such acts could be
prevented. It is a constitutional commonplace that the ordinary requirements of procedural due process
must yield to the necessities of protecting vital public interests,103 among which is protection of women
and children from violence and threats to their personal safety and security.
It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that notice be
immediately given to the respondent directing him to file an opposition within five (5) days from service.
Moreover, the court shall order that notice, copies of the petition and TPO be served immediately on the
respondent by the court sheriffs. The TPOs are initially effective for thirty (30) days from service on the
respondent.104
Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and service of
the notice upon the respondent requiring him to file an opposition to the petition within five (5) days from
service. The date of the preliminary conference and hearing on the merits shall likewise be indicated on
the notice.105
The opposition to the petition which the respondent himself shall verify, must be accompanied by the
affidavits of witnesses and shall show cause why a temporary or permanent protection order should not be
issued.106
It is clear from the foregoing rules that the respondent of a petition for protection order should be apprised
of the charges imputed to him and afforded an opportunity to present his side. Thus, the fear of petitioner
of being "stripped of family, property, guns, money, children, job, future employment and reputation, all
in a matter of seconds, without an inkling of what happened" is a mere product of an overactive
imagination. The essence of due process is to be found in the reasonable opportunity to be heard and
submit any evidence one may have in support of one's defense. "To be heard" does not only mean verbal

arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either
through oral arguments or pleadings, is accorded, there is no denial of procedural due process.107
It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte Motion
for Renewal of the TPO that was granted only two days earlier on April 24, 2006. Likewise, on May 23,
2006, petitioner filed a motion for the modification of the TPO to allow him visitation rights to his
children. Still, the trial court in its Order dated September 26, 2006, gave him five days (5) within which
to show cause why the TPO should not be renewed or extended. Yet, he chose not to file the required
comment arguing that it would just be an "exercise in futility," conveniently forgetting that the renewal of
the questioned TPO was only for a limited period (30 days) each time, and that he could prevent the
continued renewal of said order if he can show sufficient cause therefor. Having failed to do so, petitioner
may not now be heard to complain that he was denied due process of law.
Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from the
residence of the victim, regardless of ownership of the residence, is virtually a "blank check" issued to the
wife to claim any property as her conjugal home.108
The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that this is
so. It states:
SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or all of
the following reliefs:
xxxx
(c) Removing and excluding the respondent from the residence of the offended party, regardless of
ownership of the residence, either temporarily for the purpose of protecting the offended party, or
permanently where no property rights are violated. If the respondent must remove personal effects from
the residence, the court shall direct a law enforcement agent to accompany the respondent to the residence,
remain there until the respondent has gathered his things and escort him from the residence;
xxxx
Indubitably, petitioner may be removed and excluded from private respondent's residence, regardless of
ownership, only temporarily for the purpose of protecting the latter. Such removal and exclusion may be
permanent only where no property rights are violated. How then can the private respondent just claim any
property and appropriate it for herself, as petitioner seems to suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging mediation and
counseling, the law has done violence to the avowed policy of the State to "protect and strengthen the
family as a basic autonomous social institution."109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue thereof to a
mediator. The reason behind this provision is well-explained by the Commentary on Section 311 of the
Model Code on Domestic and Family Violence as follows:110
This section prohibits a court from ordering or referring parties to mediation in a proceeding for an order
for protection. Mediation is a process by which parties in equivalent bargaining positions voluntarily reach
consensual agreement about the issue at hand. Violence, however, is not a subject for compromise. A
process which involves parties mediating the issue of violence implies that the victim is somehow at fault.
92
In addition, mediation of issues in a proceeding for an order of protection is problematic because the
petitioner is frequently unable to participate equally with the person against whom the protection order has
been sought. (Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the exercise of judicial power which, under the
Constitution, is placed upon the "Supreme Court and such other lower courts as may be established by
law" and, thus, protests the delegation of power to barangay officials to issue protection orders.111 The
pertinent provision reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. – Barangay Protection Orders
(BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist from
committing acts under Section 5 (a) and (b) of this Act.1âwphi1 A Punong Barangay who receives
applications for a BPO shall issue the protection order to the applicant on the date of filing after ex parte
determination of the basis of the application. If the Punong Barangay is unavailable to act on the
application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the
BPO is issued by a Barangay Kagawad, the order must be accompanied by an attestation by the Barangay
Kagawad that the Punong Barangay was unavailable at the time of the issuance of the BPO. BPOs shall be
effective for fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong Barangay or
Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct any barangay
official to effect its personal service.
The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong
Barangay.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government.112 On the other hand, executive power "is generally defined as the power to enforce
and administer the laws. It is the power of carrying the laws into practical operation and enforcing their
due observance."113
As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his
unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a)
causing physical harm to the woman or her child; and (2) threatening to cause the woman or her child
physical harm. Such function of the Punong Barangay is, thus, purely executive in nature, in pursuance of
his duty under the Local Government Code to "enforce all laws and ordinances," and to "maintain public
order in the barangay."114
We have held that "(t)he mere fact that an officer is required by law to inquire into the existence of certain
facts and to apply the law thereto in order to determine what his official conduct shall be and the fact that
these acts may affect private rights do not constitute an exercise of judicial powers."115
In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding
"whether there is reasonable ground to believe that an offense has been committed and the accused is
probably guilty thereof," the Punong Barangay must determine reasonable ground to believe that an
imminent danger of violence against the woman and her children exists or is about to recur that would
necessitate the issuance of a BPO. The preliminary investigation conducted by the prosecutor is,
concededly, an executive, not a judicial, function. The same holds true with the issuance of a BPO.
 93

We need not even belabor the issue raised by petitioner that since barangay officials and other law
enforcement agencies are required to extend assistance to victims of violence and abuse, it would be very
unlikely that they would remain objective and impartial, and that the chances of acquittal are nil. As
already stated, assistance by barangay officials and other law enforcement agencies is consistent with their
duty to enforce the law and to maintain peace and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear conflict
with the Constitution, not merely a doubtful or argumentative one, must be demonstrated in such a manner
as to leave no doubt in the mind of the Court. In other words, the grounds for nullity must be beyond
reasonable doubt.116 In the instant case, however, no concrete evidence and convincing arguments were
presented by petitioner to warrant a declaration of the unconstitutionality of R.A. 9262, which is an act of
Congress and signed into law by the highest officer of the co-equal executive department. As we said in
Estrada v. Sandiganbayan, 117 courts must assume that the legislature is ever conscious of the borders and
edges of its plenary powers, and passed laws with full knowledge of the facts and for the purpose of
promoting what is right and advancing the welfare of the majority.

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

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.

SO ORDERED.