Admin Law

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 4349 September 24, 1908
THE UNITED STATES, plaintiff-appellee,

vs.
ANICETO BARRIAS, defendant-appellant.
Ortigas & Fisher for appellant.

Attorney-General Araneta for appellee.
TRACEY, J.:
In the Court of First Instance of the city of Manila the defendant was charged within a
violation of paragraphs 70 and 83 of Circular No. 397 of the Insular Collector of Customs,
duly published in the Official Gazette and approved by the Secretary of Finance and
Justice.1 After a demurrer to the complaint of the lighter Maude, he was moving her
and directing her movement, when heavily laden, in the Pasig River, by bamboo poles in
the hands of the crew, and without steam, sail, or any other external power. Paragraph
70 of Circular No. 397 reads as follows:
No heavily loaded casco, lighter, or other similar craft shall be permitted to move in the
Pasig River without being towed by steam or moved by other adequate power.
Paragraph 83 reads, in part, as follows:
For the violation of any part of the foregoing regulations, the persons offending shall be
liable to a fine of not less than P5 and not more than P500, in the discretion of the court.
In this court, counsel for the appellant attacked the validity of paragraph 70 on two
grounds: First that it is unauthorized by section 19 of Act No. 355; and, second, that if
the acts of the Philippine Commission bear the interpretation of authorizing the
Collector to promulgate such a law, they are void, as constituting an illegal delegation of
legislative power.
Elsa M. Cañete CPA, MBA, DBA 1

The Attorney-General does not seek to sustain the conviction but joins with the counsel
for the defense in asking for the discharge of the prisoner on the first ground stated by
the defense, that the rule of the Collector cited was unauthorized and illegal, expressly
passing over the other question of the delegation of legislative power.
By sections 1, 2, and 3 of Act No. 1136, passed April 29, 1904, the Collector of Customs
is authorized to license craft engaged in the lighterage or other exclusively harbor
business of the ports of the Islands, and, with certain exceptions, all vessels engaged in
lightering are required to be so licensed. Sections 5 and 8 read as follows:
SEC. 5. The Collector of Customs for the Philippine Islands is hereby authorized,
empowered, and directed to promptly make and publish suitable rules and regulations
to carry this law into effect and to regulate the business herein licensed.
SEC. 8. Any person who shall violate the provisions of this Act, or of any rule or
regulation made and issued by the Collector of Customs for the Philippine Islands, under
and by authority of this Act, shall be deemed guilty of a misdemeanor, and upon
conviction shall be punished by imprisonment for not more than six months, or by a fine
of not more than one hundred dollars, United States currency, or by both such fine and
imprisonment, at the discretion of the court; Provided, That violations of law may be
punished either by the method prescribed in section seven hereof, or by that prescribed
in this section or by both.
Under this statute, which was not referred to on the argument, or in the original briefs,
there is no difficulty in sustaining the regulation of the Collector as coming within the
terms of section 5. Lighterage, mentioned in the Act, is the very business in which this
vessel was engaged, and when heavily laden with hemp she was navigating the Pasig
River below the Bridge of Spain, in the city of Manila. This spot is near the mouth of the
river, the docks whereof are used for the purpose of taking on and discharging freight,
and we entertain no doubt that it was in right sense a part of the harbor, without having
recourse to the definition of paragraph 8 of Customs Administrative Circular No. 136,
which reads as follows:
The limits of a harbor for the purpose of licensing vessels as herein prescribed (for the
lighterage and harbor business) shall be considered to include its confluent navigable
rivers and lakes, which are navigable during any season of the year.

The necessity confiding to some local authority the framing, changing, and enforcing of
harbor regulations is recognized throughout the world, as each region and each a harbor
requires peculiar use more minute than could be enacted by the central lawmaking
power, and which, when kept within the proper scope, are in their nature police
regulations not involving an undue grant of legislative power.
The complaint in this instance was framed with reference, as its authority, to sections
311 and 319 [19 and 311] at No. 355 of the Philippine Customs Administrative Acts, as
amended by Act Nos. 1235 and 1480. Under Act No. 1235, the Collector is not only
empowered to make suitable regulations, but also to "fix penalties for violation
thereof," not exceeding a fine of P500.
This provision of the statute does, indeed, present a serious question.
One of the settled maxims in constitutional law is, that the power conferred upon the
legislature to make laws can not be delegated by that department to any body or
authority. Where the sovereign power of the State has located the authority, there it
must remain; only by the constitutional agency alone the laws must be made until the
constitution itself is changed. The power to whose judgment, wisdom, and patriotism
this high prerogative has been intrusted can not relieve itself of the responsibility by
choosing other agencies upon which the power shall be developed, nor can its
substitutes the judgment, wisdom, and patriotism and of any other body for those to
which alone the people have seen fit to confide this sovereign trust. (Cooley's
Constitutional limitations, 6th ed., p. 137.)
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 by the instrumentality of his
own judgment acting immediately upon the matter of legislation and not through the
intervening mind of another. In the case of the United States vs. Breen (40 Fed. Phil.
Rep. 402), an Act of Congress allowing the Secretary of War to make such rules and
regulations as might be necessary to protect improvements of the Mississipi River, and
providing that a violation thereof should constitute a misdemeanor, was sustained on
the ground that the misdemeanor was declared not under the delegated power of the
Secretary of War, but in the Act of Congress, itself. So also was a grant to him of power
to prescribe rules for the use of canals. (U.S. vs. Ormsbee, 74 Fed. Rep. 207.) but a law
authorizing him to require alteration of any bridge and to impose penalties for violations
of his rules was held invalid, as vesting in him upon a power exclusively lodged in

Congress (U.S. vs. Rider, 50 Fed. Rep., 406.) The subject is considered and some cases
reviewed by the Supreme Court of the United States, in re Kollock (165 U.S. 526), which
upheld the law authorizing a commissioner of internal revenue to designate and stamps
on oleomargarine packages, an improper use of which should thereafter constitute a
crime or misdemeanor, the court saying (p. 533):
The criminal offense is fully and completely defined by the Act and the designation by
the Commissioner of the particular marks and brands to be used was a mere matter of
detail. The regulation was in execution of, or supplementary to, but not in conflict with
the law itself. . . .
In Massachusetts it has been decided that the legislature may delegate to the governor
and counsel the power to make pilot regulations. (Martin vs. Witherspoon et al., 135
Mass. 175).
In the case of The Board of Harbor Commissioners of the Port of Eureka vs. Excelsior
Redwood Company (88 Cal. 491), it was ruled that harbor commissioners can not
impose a penalty under statues authorizing them to do so, the court saying:
Conceding that the legislature could delegate to the plaintiff the authority to make rules
and regulation with reference to the navigation of Humboldt Bay, the penalty for the
violation of such rules and regulations is a matter purely in the hands of the legislature.
Having reached the conclusion that Act No. 1136 is valid, so far as sections 5 and 8 are
concerned, and is sufficient to sustain this prosecution, it is unnecessary that we should
pass on the questions discussed in the briefs as to the extend and validity of the other
acts. The reference to them in the complaint is not material, as we have frequently held
that where an offense is correctly described in the complaint an additional reference to
a wrong statute is immaterial.
We are also of the opinion that none of the subsequent statutes cited operate to repeal
the aforesaid section Act No. 1136.
So much of the judgment of the Court of First Instance as convicts the defendant of a
violation of Acts Nos. 355 and 1235 is hereby revoked and is hereby convicted of a
misdemeanor and punished by a fine of 25 dollars, with costs of both instances. So
ordered.

Arellano, C.J., Torres, Mapa and Willard, JJ., concur.
Carson, J., reserve his opinion.
Digest
11 Phil. 327 – Political Law – Delegation of Power – Administrative Bodies
In 1904, Congress, through a law (Act No. 1136), authorized the Collector of Customs to
regulate the business of lighterage. Lighterage is a business involving the shipping of
goods by use of lighters or cascos (small ships/boats). The said law also provides that
the Collector may promulgate such rules to implement Act No. 1136. Further, Act No.
1136 provides that in case a fine is to be imposed, it should not exceed one hundred
dollars. Pursuant to this, the Collector promulgated Circular No. 397.
Meanwhile, Aniceto Barrias was caught navigating the Pasig River using a lighter which

is manually powered by bamboo poles (sagwan). Such is a violation of Circular No. 397
because under said Circular, only steam powered ships should be allowed to navigate
the Pasig River. However, in the information against Barrias, it was alleged that the
imposable penalty against him should be a fine not exceeding P500.00 at the discretion
of the court – this was pursuant to Circular No. 397 which provides:
For the violation of any part of the foregoing regulations, the persons offending shall be
liable to a fine of not less than P5 and not more than P500, in the discretion of the court.
Barrias now challenged the validity of such provision of the Circular as it is entirely
different from the penal provision of Act. No. 1136 which only provided a penalty of not
exceeding $100.00 (Note at that time the peso-dollar exchange was more or less equal).
ISSUE: Whether or not the penal provision in the Circular is valid.
HELD: No. The Commissioner cannot impose a different range of penalty different from

that specified by Congress. If the Collector is allowed to do so, then in effect, it is as if he
is being delegated the power to legislate penalties. 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 anybody or authority. Where the sovereign power
of the State has located the authority, there it must remain; only by the constitutional
agency alone the laws must be made until the constitution itself is changed. The power
to whose judgment, wisdom, and patriotism this high prerogative has been entrusted
can not relieve itself of the responsibility by choosing other agencies upon which the

power shall be developed, nor can its substitutes the judgment, wisdom, and patriotism
and of any other body for those to which alone the people have seen fit to confide this
sovereign trust.
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 by the instrumentality of his
own judgment acting immediately upon the matter of legislation and not through the
intervening mind of another. The Collector cannot exercise a power exclusively lodged
in Congress. Hence, Barrias should be penalized in accordance to the penalty being
imposed by Act No. 1136. In this case, the Supreme Court determined that the proper
fine is $25.00.

SUPREME COURT
Manila
EN BANC
G.R. No. L-45685 November 16, 1937
THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING
CORPORATION,petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU
UNJIENG, respondents.
Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough
for respondent Cu Unjieng.
No appearance for respondent Judge.
LAUREL, J.:
This is an original action instituted in this court on August 19, 1937, for the issuance of
the writ of certiorari and of prohibition to the Court of First Instance of Manila so that
this court may review the actuations of the aforesaid Court of First Instance in criminal
case No. 42649 entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et
al.", more particularly the application of the defendant Mariano Cu Unjieng therein for
probation under the provisions of Act No. 4221, and thereafter prohibit the said Court of
First Instance from taking any further action or entertaining further the aforementioned
application for probation, to the end that the defendant Mariano Cu Unjieng may be
forthwith committed to prison in accordance with the final judgment of conviction
rendered by this court in said case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking
Corporation, are respectively the plaintiff and the offended party, and the respondent
herein Mariano Cu Unjieng is one of the defendants, in the criminal case entitled "The
People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649

of the Court of First Instance of Manila and G.R. No. 41200 of this court. Respondent
herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh branch of the Court of
First Instance of Manila, who heard the application of the defendant Mariano Cu
Unjieng for probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed with the Court of First Instance
of Manila on October 15, 1931, petitioner herein Hongkong and Shanghai Banking
Corporation intervening in the case as private prosecutor. After a protracted trial
unparalleled in the annals of Philippine jurisprudence both in the length of time spent
by the court as well as in the volume in the testimony and the bulk of the exhibits
presented, the Court of First Instance of Manila, on January 8, 1934, rendered a
judgment of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate
penalty ranging from four years and two months of prision correccional to eight years of
prision mayor, to pay the costs and with reservation of civil action to the offended party,
the Hongkong and Shanghai Banking Corporation. Upon appeal, the court, on March 26,
1935, modified the sentence to an indeterminate penalty of from five years and six
months of prision correccional to seven years, six months and twenty-seven days
of prision mayor, but affirmed the judgment in all other respects. Mariano Cu Unjieng
filed a motion for reconsideration and four successive motions for new trial which were
denied on December 17, 1935, and final judgment was accordingly entered on
December 18, 1935. The defendant thereupon sought to have the case elevated
on certiorari to the Supreme Court of the United States but the latter denied the
petition forcertiorari in November, 1936. This court, on November 24,
1936, denied the petition subsequently filed by the defendant for leave to file a second
alternative motion for reconsideration or new trial and thereafter remanded the case to
the court of origin for execution of the judgment.
The instant proceedings have to do with the application for probation filed by the herein
respondent Mariano Cu Unjieng on November 27, 1936, before the trial court,
under the provisions of Act No. 4221 of the defunct Philippine Legislature. Herein
respondent Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of
the crime of which he was convicted, that he has no criminal record and that he would
observe good conduct in the future. The Court of First Instance of Manila, Judge Pedro
Tuason presiding, referred the application for probation of the Insular Probation Office
which recommended denial of the same June 18, 1937. Thereafter, the Court of First

Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for
hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of
probation to the herein respondent Mariano Cu Unjieng. The private prosecution also
filed an opposition on April 5, 1937, alleging, among other things, that Act No. 4221,
assuming that it has not been repealed by section 2 of Article XV of the Constitution, is
nevertheless violative of section 1, subsection (1), Article III of the Constitution
guaranteeing equal protection of the laws for the reason that its applicability is not
uniform throughout the Islands and because section 11 of the said Act endows the
provincial boards with the power to make said law effective or otherwise in their
respective or otherwise in their respective provinces. The private prosecution also filed
a supplementary opposition on April 19, 1937, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue delegation of legislative power to the
provincial boards of several provinces (sec. 1, Art. VI, Constitution). The City Fiscal
concurred in the opposition of the private prosecution except with respect to the
questions raised concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with
a finding that "las pruebas no han establecido de unamanera concluyente la culpabilidad
del peticionario y que todos los hechos probados no son inconsistentes o incongrentes
con su inocencia" and concludes that the herein respondent Mariano Cu Unjieng "es
inocente por duda racional" of the crime of which he stands convicted by this court in
G.R. No. 41200, but denying the latter's petition for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia

social que se han expuesto en el cuerpo de esta resolucion, que hacen al peticionario
acreedor de la misma, una parte de la opinion publica, atizada por los recelos y las
suspicacias, podria levantarse indignada contra un sistema de probacion que permite
atisbar en los procedimientos ordinarios de una causa criminal perturbando la quietud y
la eficacia de las decisiones ya recaidas al traer a la superficie conclusiones enteramente
differentes, en menoscabo del interes publico que demanda el respeto de las leyes y del
veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an
exception to the resolution denying probation and a notice of intention to file a motion
for reconsideration. An alternative motion for reconsideration or new trial was filed by

counsel on July 13, 1937. This was supplemented by an additional motion for
reconsideration submitted on July 14, 1937. The aforesaid motions were set for hearing
on July 31, 1937, but said hearing was postponed at the petition of counsel for the
respondent Mariano Cu Unjieng because a motion for leave to intervene in the case
as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the
trial court. Attorney Eulalio Chaves whose signature appears in the aforesaid motion
subsequently filed a petition for leave to withdraw his appearance as amicus curiae on
the ground that the motion for leave to intervene as amici curiae was circulated at a
banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and
that he signed the same "without mature deliberation and purely as a matter of
courtesy to the person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for
the issuance of an order of execution of the judgment of this court in said case and
forthwith to commit the herein respondent Mariano Cu Unjieng to jail in obedience to
said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion for leave to
intervene as amici curiaeaforementioned, asking that a date be set for a hearing of the
same and that, at all events, said motion should be denied with respect to certain
attorneys signing the same who were members of the legal staff of the several counsel
for Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera
issued an order requiring all parties including the movants for intervention as amici
curiae to appear before the court on August 14, 1937. On the last-mentioned date, the
Fiscal of the City of Manila moved for the hearing of his motion for execution of
judgment in preference to the motion for leave to intervene as amici curiae but, upon
objection of counsel for Mariano Cu Unjieng, he moved for the postponement of the
hearing of both motions. The respondent judge thereupon set the hearing of the motion
for execution on August 21, 1937, but proceeded to consider the motion for leave to
intervene as amici curiae as in order. Evidence as to the circumstances under which said
motion for leave to intervene as amici curiae was signed and submitted to court was to
have been heard on August 19, 1937. But at this juncture, herein petitioners came to
this court on extraordinary legal process to put an end to what they alleged was an
interminable proceeding in the Court of First Instance of Manila which fostered "the
campaign of the defendant Mariano Cu Unjieng for delay in the execution of the
sentence imposed by this Honorable Court on him, exposing the courts to criticism and

ridicule because of the apparent inability of the judicial machinery to make effective a
final judgment of this court imposed on the defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was accordingly suspended upon the
issuance of a temporary restraining order by this court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs of certiorari and
prohibition, herein petitioners allege that the respondent judge has acted without
jurisdiction or in excess of his jurisdiction:
I. Because said respondent judge lacks the power to place respondent Mariano Cu
Unjieng under probation for the following reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to
apply only to the provinces of the Philippines; it nowhere states that it is to be made
applicable to chartered cities like the City of Manila.
(2) While section 37 of the Administrative Code contains a proviso to the effect that in
the absence of a special provision, the term "province" may be construed to include the
City of Manila for the purpose of giving effect to laws of general application, it is also
true that Act No. 4221 is not a law of general application because it is made to apply
only to those provinces in which the respective provincial boards shall have provided for
the salary of a probation officer.
(3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would
not be applicable to it because it has provided for the salary of a probation officer as
required by section 11 thereof; it being immaterial that there is an Insular Probation
Officer willing to act for the City of Manila, said Probation Officer provided for in section
10 of Act No. 4221 being different and distinct from the Probation Officer provided for in
section 11 of the same Act.
II. Because even if the respondent judge originally had jurisdiction to entertain the
application for probation of the respondent Mariano Cu Unjieng, he nevertheless acted
without jurisdiction or in excess thereof in continuing to entertain the motion for
reconsideration and by failing to commit Mariano Cu Unjieng to prison after he had
promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng's application
for probation, for the reason that:

(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the
granting or denying of applications for probation.
(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on
June 28, 1937, it became final and executory at the moment of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of said order or to modify
or change the same.
III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of
the crime for which he was convicted by final judgment of this court, which finding is
not only presumptuous but without foundation in fact and in law, and is furthermore in
contempt of this court and a violation of the respondent's oath of office as ad
interim judge of first instance.
IV. Because the respondent judge has violated and continues to violate his duty, which
became imperative when he issued his order of June 28, 1937, denying the application
for probation, to commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and adequate remedy in the
ordinary course of law.
In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and

Shanghai Banking Corporation further contends that Act No. 4221 of the Philippine
Legislature providing for a system of probation for persons eighteen years of age or over
who are convicted of crime, is unconstitutional because it is violative of section 1,
subsection (1), Article III, of the Constitution of the Philippines guaranteeing equal
protection of the laws because it confers upon the provincial board of its province the
absolute discretion to make said law operative or otherwise in their respective
provinces, because it constitutes an unlawful and improper delegation to the provincial
boards of the several provinces of the legislative power lodged by the Jones Law
(section 8) in the Philippine Legislature and by the Constitution (section 1, Art. VI) in the
National Assembly; and for the further reason that it gives the provincial boards, in
contravention of the Constitution (section 2, Art. VIII) and the Jones Law (section 28),
the authority to enlarge the powers of the Court of First Instance of different provinces
without uniformity. In another supplementary petition dated September 14, 1937, the

Fiscal of the City of Manila, in behalf of one of the petitioners, the People of the
Philippine Islands, concurs for the first time with the issues raised by other petitioner
regarding the constitutionality of Act No. 4221, and on the oral argument held on
October 6, 1937, further elaborated on the theory that probation is a form of reprieve
and therefore Act. No. 4221 is an encroachment on the exclusive power of the Chief
Executive to grant pardons and reprieves. On October 7, 1937, the City Fiscal filed two
memorandums in which he contended that Act No. 4221 not only encroaches upon the
pardoning power to the executive, but also constitute an unwarranted delegation of
legislative power and a denial of the equal protection of the laws. On October 9, 1937,
two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in
behalf of the People of the Philippine Islands, and by counsel for the petitioner, the
Hongkong and Shanghai Banking Corporation, one sustaining the power of the state to
impugn the validity of its own laws and the other contending that Act No. 4221
constitutes an unwarranted delegation of legislative power, were presented. Another
joint memorandum was filed by the same persons on the same day, October 9, 1937,
alleging that Act No. 4221 is unconstitutional because it denies the equal protection of
the laws and constitutes an unlawful delegation of legislative power and, further, that
the whole Act is void: that the Commonwealth is not estopped from questioning the
validity of its laws; that the private prosecution may intervene in probation proceedings
and may attack the probation law as unconstitutional; and that this court may pass upon
the constitutional question in prohibition proceedings.
Respondents in their answer dated August 31, 1937, as well as in their oral argument
and memorandums, challenge each and every one of the foregoing proposition raised
by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law to warrant the
issuance of the writ of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the remedy sought by the
petitioners is the very same remedy prayed for by them before the trial court and was
still pending resolution before the trial court when the present petition was filed with
this court.

(3) That the petitioners having themselves raised the question as to the execution of
judgment before the trial court, said trial court has acquired exclusive jurisdiction to
resolve the same under the theory that its resolution denying probation is
unappealable.
(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of
First Instance to decide the question as to whether or not the execution will lie, this
court nevertheless cannot exercise said jurisdiction while the Court of First Instance has
assumed jurisdiction over the same upon motion of herein petitioners themselves.
(5) That upon the procedure followed by the herein petitioners in seeking to deprive the
trial court of its jurisdiction over the case and elevate the proceedings to this court,
should not be tolerated because it impairs the authority and dignity of the trial court
which court while sitting in the probation cases is "a court of limited jurisdiction but of
great dignity."
(6) That under the supposition that this court has jurisdiction to resolve the question
submitted to and pending resolution by the trial court, the present action would not lie
because the resolution of the trial court denying probation is appealable; for although
the Probation Law does not specifically provide that an applicant for probation may
appeal from a resolution of the Court of First Instance denying probation, still it is a
general rule in this jurisdiction that a final order, resolution or decision of an inferior
court is appealable to the superior court.
(7) That the resolution of the trial court denying probation of herein respondent
Mariano Cu Unjieng being appealable, the same had not become final and executory for
the reason that the said respondent had filed an alternative motion for reconsideration
and new trial within the requisite period of fifteen days, which motion the trial court
was able to resolve in view of the restraining order improvidently and erroneously
issued by this court.lawphi1.net
(8) That the Fiscal of the City of Manila had by implication admitted that the resolution
of the trial court denying probation is not final and unappealable when he presented his
answer to the motion for reconsideration and agreed to the postponement of the
hearing of the said motion.
(9) That under the supposition that the order of the trial court denying probation is not
appealable, it is incumbent upon the accused to file an action for the issuance of the

writ ofcertiorari with mandamus, it appearing that the trial court, although it believed
that the accused was entitled to probation, nevertheless denied probation for fear of
criticism because the accused is a rich man; and that, before a petition
for certiorari grounded on an irregular exercise of jurisdiction by the trial court could lie,
it is incumbent upon the petitioner to file a motion for reconsideration specifying the
error committed so that the trial court could have an opportunity to correct or cure the
same.
(10) That on hypothesis that the resolution of this court is not appealable, the trial court
retains its jurisdiction within a reasonable time to correct or modify it in accordance
with law and justice; that this power to alter or modify an order or resolution is inherent
in the courts and may be exercise either motu proprio or upon petition of the proper
party, the petition in the latter case taking the form of a motion for reconsideration.
(11) That on the hypothesis that the resolution of the trial court is appealable as
respondent allege, said court cannot order execution of the same while it is on appeal,
for then the appeal would not be availing because the doors of probation will be closed
from the moment the accused commences to serve his sentence (Act No. 4221, sec. 1;
U.S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the respondents maintain
that Act No. 4221 is constitutional because, contrary to the allegations of the
petitioners, it does not constitute an undue delegation of legislative power, does not
infringe the equal protection clause of the Constitution, and does not encroach upon
the pardoning power of the Executive. In an additional memorandum filed on the same
date, counsel for the respondents reiterate the view that section 11 of Act No. 4221 is
free from constitutional objections and contend, in addition, that the private
prosecution may not intervene in probation proceedings, much less question the validity
of Act No. 4221; that both the City Fiscal and the Solicitor-General are estopped from
questioning the validity of the Act; that the validity of Act cannot be attacked for the
first time before this court; that probation in unavailable; and that, in any event, section
11 of the Act No. 4221 is separable from the rest of the Act. The last memorandum for
the respondent Mariano Cu Unjieng was denied for having been filed out of time but
was admitted by resolution of this court and filed anew on November 5, 1937.
This memorandum elaborates on some of the points raised by the respondents and
refutes those brought up by the petitioners.

In the scrutiny of the pleadings and examination of the various aspects of the present
case, we noted that the court below, in passing upon the merits of the application of the
respondent Mariano Cu Unjieng and in denying said application assumed the task not
only of considering the merits of the application, but of passing upon the culpability of
the applicant, notwithstanding the final pronouncement of guilt by this court. (G.R. No.
41200.) Probation implies guilt be final judgment. While a probation case may look into
the circumstances attending the commission of the offense, this does not authorize it to
reverse the findings and conclusive of this court, either directly or indirectly, especially
wherefrom its own admission reliance was merely had on the printed briefs, averments,
and pleadings of the parties. As already observed by this court in Shioji vs.
Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each and
every Court of First Instance could enjoy the privilege of overruling decisions of the
Supreme Court, there would be no end to litigation, and judicial chaos would result." A
becoming modesty of inferior courts demands conscious realization of the position that
they occupy in the interrelation and operation of the intergrated judicial system of the
nation.
After threshing carefully the multifarious issues raised by both counsel for the
petitioners and the respondents, this court prefers to cut the Gordian knot and take up
at once the two fundamental questions presented, namely, (1) whether or not the
constitutionality of Act No. 4221 has been properly raised in these proceedings; and (2)
in the affirmative, whether or not said Act is constitutional. Considerations of these
issues will involve a discussion of certain incidental questions raised by the parties.
To arrive at a correct conclusion on the first question, resort to certain guiding principles
is necessary. It is a well-settled rule that the constitutionality of an act of the legislature
will not be determined by the courts unless that question is properly raised and
presented inappropriate cases and is necessary to a determination of the case; i.e., the
issue of constitutionality must be the very lis mota presented. (McGirr vs. Hamilton and
Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.)
The question of the constitutionality of an act of the legislature is frequently raised in

ordinary actions. Nevertheless, resort may be made to extraordinary legal remedies,
particularly where the remedies in the ordinary course of law even if available, are not
plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone([1922]), 42 Phil., 818), this
court held that the question of the constitutionality of a statute may be raised by the
petitioner in mandamus proceedings (see, also, 12 C. J., p. 783); and in Government of
the Philippine Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer vs.
Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this
court declared an act of the legislature unconstitutional in an action of quo
warrantobrought 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 ofYu Cong Eng vs. Trinidad, supra,
decided by this court twelve years ago was, like the present one, an original action
for certiorari and prohibition. The constitutionality of Act No. 2972, popularly known as
the Chinese Bookkeeping Law, was there challenged by the petitioners, and the
constitutional issue was not met squarely by the respondent in a demurrer. A point was
raised "relating to the propriety of the constitutional question being decided in original
proceedings in prohibition." This court decided to take up the constitutional question
and, with two justices dissenting, held that Act No. 2972 was constitutional. The case
was elevated on writ of certiorari to the Supreme Court of the United States which
reversed the judgment of this court and held that the Act was invalid. (271 U. S., 500; 70
Law. ed., 1059.) On the question of jurisdiction, however, the Federal Supreme Court,
though its Chief Justice, said:
By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine
supreme court is granted concurrent jurisdiction in prohibition with courts of first
instance over inferior tribunals or persons, and original jurisdiction over courts of first
instance, when such courts are exercising functions without or in excess of their
jurisdiction. It has been held by that court that the question of the validity of the
criminal statute must usually be raised by a defendant in the trial court and be carried
regularly in review to the Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del
Rosario, 26 Phil., 192). But in this case where a new act seriously affected numerous
persons and extensive property rights, and was likely to cause a multiplicity of actions,
the Supreme Court exercised its discretion to bring the issue to the act's validity

promptly before it and decide in the interest of the orderly administration of justice. The
court relied by analogy upon the cases of Ex parte Young (209 U. S., 123;52 Law ed.,
714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239
U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283;
and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct.
Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was raise by
demurrer to the petition, this is now disclaimed on behalf of the respondents, and both
parties ask a decision on the merits. In view of the broad powers in prohibition granted
to that court under the Island Code, we acquiesce in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior
jurisdiction and directed to an inferior court, for the purpose of preventing the inferior
tribunal from usurping a jurisdiction with which it is not legally vested. (High,
Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in
the cases, is that the merit of prohibition will not lie whether the inferior court has
jurisdiction independent of the statute the constitutionality of which is questioned,
because in such cases the interior court having jurisdiction may itself determine the
constitutionality of the statute, and its decision may be subject to review, and
consequently the complainant in such cases ordinarily has adequate remedy by appeal
without resort to the writ of prohibition. But where the inferior court or tribunal derives
its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the
writ of prohibition from enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874,
51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me.,
384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54
W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings derived their jurisdiction solely
from Act No. 4221 which prescribes in detailed manner the procedure for granting
probation to accused persons after their conviction has become final and before they
have served their sentence. It is true that at common law the authority of the courts to
suspend temporarily the execution of the sentence is recognized and, according to a
number of state courts, including those of Massachusetts, Michigan, New York, and
Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874],
115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel.
Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St.,
616). But, in the leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law.

ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme
Court of the United States expressed the opinion that under the common law the power
of the court was limited to temporary suspension, and brushed aside the contention as
to inherent judicial power saying, through Chief Justice White:
Indisputably under our constitutional system the right to try offenses against the
criminal laws and upon conviction to impose the punishment provided by law is judicial,
and it is equally to be conceded that, in exerting the powers vested in them on such
subject, courts inherently possess ample right to exercise reasonable, that is, judicial,
discretion to enable them to wisely exert their authority. But these concessions afford
no ground for the contention as to power here made, since it must rest upon the
proposition that the power to enforce begets inherently a discretion to permanently
refuse to do so. And the effect of the proposition urged upon the distribution of powers
made by the Constitution will become apparent when it is observed that indisputable
also is it that the authority to define and fix the punishment for crime is legislative and
includes the right in advance to bring within judicial discretion, for the purpose of
executing the statute, elements of consideration which would be otherwise beyond the
scope of judicial authority, and that the right to relieve from the punishment, fixed by
law and ascertained according to the methods by it provided belongs to the executive
department.
Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs.
Judge of First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also
reached the conclusion that the power to suspend the execution of sentences
pronounced in criminal cases is not inherent in the judicial function. "All are agreed", he
said, "that in the absence of statutory authority, it does not lie within the power of the
courts to grant such suspensions." (at p. 278.) Both petitioner and respondents are
correct, therefore, when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is
conferred exclusively by Act No. 4221 of the Philippine Legislature.
It is, of course, true that the constitutionality of a statute will not be considered on
application for prohibition where the question has not been properly brought to the
attention of the court by objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30
S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case at
bar, it is unquestionable that the constitutional issue has been squarely presented not
only before this court by the petitioners but also before the trial court by the private
prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of the court
below, declined to pass upon the question on the ground that the private prosecutor,
not being a party whose rights are affected by the statute, may not raise said question.
The respondent judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J.,
sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N.
E., 742, 743), as authority for the proposition that a court will not consider any attack
made on the constitutionality of a statute by one who has no interest in defeating it
because his rights are not affected by its operation. The respondent judge further stated
that it may not motu proprio take up the constitutional question and, agreeing with
Cooley that "the power to declare a legislative enactment void is one which the judge,
conscious of the fallibility of the human judgment, will shrink from exercising in any case
where he can conscientiously and with due regard to duty and official oath decline the
responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the
assumption that Act No. 4221 is constitutional. While therefore, the court a quo admits
that the constitutional question was raised before it, it refused to consider the question
solely because it was not raised by a proper party. Respondents herein reiterates this
view. The argument is advanced that the private prosecution has no personality to
appear in the hearing of the application for probation of defendant Mariano Cu Unjieng
in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue
of constitutionality was not properly raised in the lower court. Although, as a general
rule, only those who are parties to a suit may question the constitutionality of a statute
involved in a judicial decision, it has been held that since the decree pronounced by a
court without jurisdiction is void, where the jurisdiction of the court depends on the
validity of the statute in question, the issue of the constitutionality will be considered on
its being brought to the attention of the court by persons interested in the effect to be
given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that the
issue was not properly raised in the court below by the proper party, it does not follow
that the issue may not be here raised in an original action of certiorari and prohibitions.
It is true that, as a general rule, the question of constitutionality must be raised at the
earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be
raised at the trial, and if not raised in the trial court, it will not considered on appeal. (12
C. J., p. 786. See, also,Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-
195.) But we must state that the general rule admits of exceptions. Courts, in the
exercise of sounds discretion, may determine the time when a question affecting the
constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135,

144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is
said that the question may be raised for the first time at any stage of the proceedings,
either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been
held that it is the duty of a court to pass on the constitutional question, though raised
for the first time on appeal, if it appears that a determination of the question is
necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910],
136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685;
113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.)
And it has been held that a constitutional question will be considered by an appellate
court at any time, where it involves the jurisdiction of the court below (State vs. Burke
[1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the
constitutional question raised for the first time before this court in these proceedings,
we turn again and point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra.
And on the hypotheses that the Hongkong & Shanghai Banking Corporation,
represented by the private prosecution, is not the proper party to raise the
constitutional question here — a point we do not now have to decide — we are of the
opinion that the People of the Philippines, represented by the Solicitor-General and the
Fiscal of the City of Manila, is such a proper party in the present proceedings. The
unchallenged rule is that the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has sustained, or will
sustained, direct injury as a result of its enforcement. It goes without saying that if Act
No. 4221 really violates the constitution, the People of the Philippines, in whose name
the present action is brought, has a substantial interest in having it set aside. Of grater
import than the damage caused by the illegal expenditure of public funds is the mortal
wound inflicted upon the fundamental law by the enforcement of an invalid statute.
Hence, the well-settled rule that the state can challenge the validity of its own laws. In
Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in
Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed.,
845), this court declared an act of the legislature unconstitutional in an action instituted
in behalf of the Government of the Philippines. In Attorney General vs. Perkins ([1889],
73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its
Attorney General, instituted quo warranto proceedings to test the right of the
respondents to renew a mining corporation, alleging that the statute under which the
respondents base their right was unconstitutional because it impaired the obligation of
contracts. The capacity of the chief law officer of the state to question the

constitutionality of the statute was though, as a general rule, only those who are parties
to a suit may question the constitutionality of a statute involved in a judicial decision, it
has been held that since the decree pronounced by a court without jurisdiction in void,
where the jurisdiction of the court depends on the validity of the statute in question,
the issue of constitutionality will be considered on its being brought to the attention of
the court by persons interested in the effect to begin the statute. (12 C.J., sec. 184, p.
766.) And, even if we were to concede that the issue was not properly raised in the
court below by the proper party, it does not follow that the issue may not be here raised
in an original action of certiorari and prohibition. It is true that, as a general rule, the
question of constitutionality must be raised at the earliest opportunity, so that if not
raised by the pleadings, ordinarily it may not be raised a the trial, and if not raised in the
trial court, it will not be considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-
Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the
general rule admits of exceptions. Courts, in the exercise of sound discretion, may
determine the time when a question affecting the constitutionality of a statute should
be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal cases,
although there is a very sharp conflict of authorities, it is said that the question may be
raised for the first time at any state of the proceedings, either in the trial court or on
appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that it is the duty of a court
to pass on the constitutional question, though raised for first time on appeal, if it
appears that a determination of the question is necessary to a decision of the case.
(McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892;
Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs.
St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a
constitutional question will be considered by an appellate court at any time, where it
involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S.,
870.) As to the power of this court to consider the constitutional question raised for the
first time before this court in these proceedings, we turn again and point with emphasis
to the case of Yu Cong Eng. vs. Trinidad, supra. And on the hypothesis that the
Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is
not the proper party to raise the constitutional question here — a point we do not now
have to decide — we are of the opinion that the People of the Philippines, represented
by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the
present proceedings. The unchallenged rule is that the person who impugns the validity
of a statute must have a personal and substantial interest in the case such that he has

sustained, or will sustain, direct injury as a result of its enforcement. It goes without
saying that if Act No. 4221 really violates the Constitution, the People of the Philippines,
in whose name the present action is brought, has a substantial interest in having it set
aside. Of greater import than the damage caused by the illegal expenditure of public
funds is the mortal wound inflicted upon the fundamental law by the enforcement of an
invalid statute. Hence, the well-settled rule that the state can challenge the validity of its
own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259
(affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72
Law. ed., 845), this court declared an act of the legislature unconstitutional in an action
instituted in behalf of the Government of the Philippines. In Attorney General vs.
Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan,
through its Attorney General, instituted quo warranto proceedings to test the right of
the respondents to renew a mining corporation, alleging that the statute under which
the respondents base their right was unconstitutional because it impaired the obligation
of contracts. The capacity of the chief law officer of the state to question the
constitutionality of the statute was itself questioned. Said the Supreme Court of
Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped from questioning the validity of a
law enacted by their representatives; that to an accusation by the people of Michigan of
usurpation their government, a statute enacted by the people of Michigan is an
adequate answer. The last proposition is true, but, if the statute relied on in justification
is unconstitutional, it is statute only in form, and lacks the force of law, and is of no
more saving effect to justify action under it than if it had never been enacted. The
constitution is the supreme law, and to its behests the courts, the legislature, and the
people must bow . . . The legislature and the respondents are not the only parties in
interest upon such constitutional questions. As was remarked by Mr. Justice Story, in
speaking of an acquiescence by a party affected by an unconstitutional act of the
legislature: "The people have a deep and vested interest in maintaining all the
constitutional limitations upon the exercise of legislative powers." (Allen vs. Mckeen, 1
Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus)
was brought by the Attorney-General of Kansas to test the constitutionality of a statute
of the state. In disposing of the question whether or not the state may bring the action,
the Supreme Court of Kansas said:

. . . the state is a proper party — indeed, the proper party — to bring this action. The
state is always interested where the integrity of its Constitution or statutes is involved.
"It has an interest in seeing that the will of the Legislature is not disregarded, and need
not, as an individual plaintiff must, show grounds of fearing more specific injury. (State
vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103 Pac.,
839.)
Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-
General, or county attorney, may exercise his bet judgment as to what sort of action he
will bring to have the matter determined, either by quo warranto to challenge its
validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to
compel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by
injunction to restrain proceedings under its questionable provisions (State ex rel. vs. City
of Neodesha, 3 Kan. App., 319; 45 Pac., 122).
Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co.
[1917], 197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley
[1935], 181 La., 597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d],
286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs.
State {1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S.,
8, 10, 11). In the case last cited, the Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney, being charged
with the duty of enforcing the laws, has no right to plead that a law is unconstitutional.
In support of the argument three decisions are cited, viz.: State ex rel. Hall, District
Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls,
Governor vs. Shakespeare, Mayor of New Orleans (41 Ann., 156; 6 So., 592); and
State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R.
A., 512). These decisions do not forbid a district attorney to plead that a statute is
unconstitutional if he finds if in conflict with one which it is his duty to enforce. In
State ex rel. Hall, District Attorney, vs. Judge, etc., the ruling was the judge should not,
merely because he believed a certain statute to be unconstitutional forbid the district
attorney to file a bill of information charging a person with a violation of the statute. In
other words, a judge should not judicially declare a statute unconstitutional until the
question of constitutionality is tendered for decision, and unless it must be decided in
order to determine the right of a party litigant. Stateex rel. Nicholls, Governor, etc., is

authority for the proposition merely that an officer on whom a statute imposes the duty
of enforcing its provisions cannot avoid the duty upon the ground that he considers the
statute unconstitutional, and hence in enforcing the statute he is immune from
responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is
authority for the proposition merely that executive officers, e.g., the state auditor and
state treasurer, should not decline to perform ministerial duties imposed upon them by
a statute, on the ground that they believe the statute is unconstitutional.
It is the duty of a district attorney to enforce the criminal laws of the state, and, above
all, to support the Constitution of the state. If, in the performance of his duty he finds
two statutes in conflict with each other, or one which repeals another, and if, in his
judgment, one of the two statutes is unconstitutional, it is his duty to enforce the other;
and, in order to do so, he is compelled to submit to the court, by way of a plea, that one
of the statutes is unconstitutional. If it were not so, the power of the Legislature would
be free from constitutional limitations in the enactment of criminal laws.
The respondents do not seem to doubt seriously the correctness of the general
proposition that the state may impugn the validity of its laws. They have not cited any
authority running clearly in the opposite direction. In fact, they appear to have
proceeded on the assumption that the rule as stated is sound but that it has no
application in the present case, nor may it be invoked by the City Fiscal in behalf of the
People of the Philippines, one of the petitioners herein, the principal reasons being that
the validity before this court, that the City Fiscal is estopped from attacking the validity
of the Act and, not authorized challenge the validity of the Act in its application outside
said city. (Additional memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and
23.)
The mere fact that the Probation Act has been repeatedly relied upon the past and all
that time has not been attacked as unconstitutional by the Fiscal of Manila but, on the
contrary, has been impliedly regarded by him as constitutional, is no reason for
considering the People of the Philippines estopped from nor assailing its validity. For
courts will pass upon a constitutional questions only when presented before it in bona
fide cases for determination, and the fact that the question has not been raised before
is not a valid reason for refusing to allow it to be raised later. The fiscal and all others
are justified in relying upon the statute and treating it as valid until it is held void by the
courts in proper cases.

It remains to consider whether the determination of the constitutionality of Act No.
4221 is necessary to the resolution of the instant case. For, ". . . while the court will
meet the question with firmness, where its decision is indispensable, it is the part of
wisdom, and just respect for the legislature, renders it proper, to waive it, if the case in
which it arises, can be decided on other points." (Ex parte Randolph [1833], 20 F. Cas.
No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has
been held that the determination of a constitutional question is necessary whenever it is
essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs.
Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849;
Ann. Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed.,
520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R.
Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is founded solely
on a statute the validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs.
Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N.E.,
306). There is no doubt that the respondent Cu Unjieng draws his privilege to probation
solely from Act No. 4221 now being assailed.
Apart from the foregoing considerations, that court will also take cognizance of the fact
that the Probation Act is a new addition to our statute books and its validity has never
before been passed upon by the courts; that may persons accused and convicted of
crime in the City of Manila have applied for probation; that some of them are already on
probation; that more people will likely take advantage of the Probation Act in the
future; and that the respondent Mariano Cu Unjieng has been at large for a period of
about four years since his first conviction. All wait the decision of this court on the
constitutional question. Considering, therefore, the importance which the instant case
has assumed and to prevent multiplicity of suits, strong reasons of public policy demand
that the constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad
[1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78;
People vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616;
Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489;
Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad,
supra, an analogous situation confronted us. We said: "Inasmuch as the property and
personal rights of nearly twelve thousand merchants are affected by these proceedings,
and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the
interest of the public welfare and for the advancement of public policy, we have
determined to overrule the defense of want of jurisdiction in order that we may decide

the main issue. We have here an extraordinary situation which calls for a relaxation of
the general rule." Our ruling on this point was sustained by the Supreme Court of the
United States. A more binding authority in support of the view we have taken can not be
found.
We have reached the conclusion that the question of the constitutionality of Act No.
4221 has been properly raised. Now for the main inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce
the Constitution. This court, by clear implication from the provisions of section 2,
subsection 1, and section 10, of Article VIII of the Constitution, may declare an act of the
national legislature invalid because in conflict with the fundamental lay. It will not shirk
from its sworn duty to enforce the Constitution. And, in clear cases, it will not hesitate
to give effect to the supreme law by setting aside a statute in conflict therewith. This is
of the essence of judicial duty.
This court is not unmindful of the fundamental criteria in cases of this nature that all
reasonable doubts should be resolved in favor of the constitutionality of a statute. An
act of the legislature approved by the executive, is presumed to be within constitutional
limitations. The responsibility of upholding the Constitution rests not on the courts
alone but on the legislature as well. "The question of the validity of every statute is first
determined by the legislative department of the government itself." (U.S. vs. Ten Yu
[1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.S.
vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained by
the sanction of the executive. The members of the Legislature and the Chief Executive
have taken an oath to support the Constitution and it must be presumed that they have
been true to this oath and that in enacting and sanctioning a particular law they did not
intend to violate the Constitution. The courts cannot but cautiously exercise its power to
overturn the solemn declarations of two of the three grand departments of the
governments. (6 R.C.L., p. 101.) Then, there is that peculiar political philosophy which
bids the judiciary to reflect the wisdom of the people as expressed through an elective
Legislature and an elective Chief Executive. It follows, therefore, that the courts will not
set aside a law as violative of the Constitution except in a clear case. This is a proposition
too plain to require a citation of authorities.
One of the counsel for respondents, in the course of his impassioned argument, called
attention to the fact that the President of the Philippines had already expressed his

opinion against the constitutionality of the Probation Act, adverting that as to the
Executive the resolution of this question was a foregone conclusion. Counsel, however,
reiterated his confidence in the integrity and independence of this court. We take notice
of the fact that the President in his message dated September 1, 1937, recommended to
the National Assembly the immediate repeal of the Probation Act (No. 4221); that this
message resulted in the approval of Bill No. 2417 of the Nationality Assembly repealing
the probation Act, subject to certain conditions therein mentioned; but that said bill was
vetoed by the President on September 13, 1937, much against his wish, "to have
stricken out from the statute books of the Commonwealth a law . . . unfair and very
likely unconstitutional." It is sufficient to observe in this connection that, in vetoing the
bill referred to, the President exercised his constitutional prerogative. He may express
the reasons which he may deem proper for taking such a step, but his reasons are not
binding upon us in the determination of actual controversies submitted for our
determination. Whether or not the Executive should express or in any manner insinuate
his opinion on a matter encompassed within his broad constitutional power of veto but
which happens to be at the same time pending determination in this court is a question
of propriety for him exclusively to decide or determine. Whatever opinion is expressed
by him under these circumstances, however, cannot sway our judgment on way or
another and prevent us from taking what in our opinion is the proper course of action to
take in a given case. It if is ever necessary for us to make any vehement affirmance
during this formative period of our political history, it is that we are independent of the
Executive no less than of the Legislative department of our government — independent
in the performance of our functions, undeterred by any consideration, free from
politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our
sworn duty as we see it and as we understand it.
The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That
said Act encroaches upon the pardoning power of the Executive; (2) that its constitutes
an undue delegation of legislative power and (3) that it denies the equal protection of
the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones
Law, in force at the time of the approval of Act No. 4221, otherwise known as the
Probation Act, vests in the Governor-General of the Philippines "the exclusive power to
grant pardons and reprieves and remit fines and forfeitures". This power is now vested
in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the

Jones Law and the Constitution differ in some respects. The adjective "exclusive" found
in the Jones Law has been omitted from the Constitution. Under the Jones Law, as at
common law, pardon could be granted any time after the commission of the offense,
either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2;In
re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines was thus
empowered, like the President of the United States, to pardon a person before the facts
of the case were fully brought to light. The framers of our Constitution thought this
undesirable and, following most of the state constitutions, provided that the pardoning
power can only be exercised "after conviction". So, too, under the new Constitution, the
pardoning power does not extend to "cases of impeachment". This is also the rule
generally followed in the United States (Vide Constitution of the United States, Art. II,
sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar
of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly
heard and determined, it is not understood that the king's royal grace is further
restrained or abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421;
Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake [1876],
29 Ohio St., 457; 23 am. Rep., 762.) The reason for the distinction is obvious. In England,
Judgment on impeachment is not confined to mere "removal from office and
disqualification to hold and enjoy any office of honor, trust, or profit under the
Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole
punishment attached by law to the offense committed. The House of Lords, on a
conviction may, by its sentence, inflict capital punishment, perpetual banishment,
perpetual banishment, fine or imprisonment, depending upon the gravity of the offense
committed, together with removal from office and incapacity to hold office. (Com. vs.
Lockwood, supra.) Our Constitution also makes specific mention of "commutation" and
of the power of the executive to impose, in the pardons he may grant, such conditions,
restrictions and limitations as he may deem proper. Amnesty may be granted by the
President under the Constitution but only with the concurrence of the National
Assembly. We need not dwell at length on the significance of these fundamental
changes. It is sufficient for our purposes to state that the pardoning power has remained
essentially the same. The question is: Has the pardoning power of the Chief Executive
under the Jones Law been impaired by the Probation Act?
As already stated, the Jones Law vests the pardoning power exclusively in the Chief
Executive. The exercise of the power may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away

nor fettered by any legislative restrictions, nor can like power be given by the legislature
to any other officer or authority. The coordinate departments of government have
nothing to do with the pardoning power, since no person properly belonging to one of
the departments can exercise any powers appertaining to either of the others except in
cases expressly provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . .
where the pardoning power is conferred on the executive without express or implied
limitations, the grant is exclusive, and the legislature can neither exercise such power
itself nor delegate it elsewhere, nor interfere with or control the proper exercise
thereof, . . ." (12 C.J., pp. 838, 839, and cases cited.) If Act No. 4221, then, confers any
pardoning power upon the courts it is for that reason unconstitutional and void. But
does it?
In the famous Killitts decision involving an embezzlement case, the Supreme Court of
the United States ruled in 1916 that an order indefinitely suspending sentenced was
void. (Ex parte United States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178;
37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an exhaustive
review of the authorities, expressed the opinion of the court that under the common
law the power of the court was limited to temporary suspension and that the right to
suspend sentenced absolutely and permanently was vested in the executive branch of
the government and not in the judiciary. But, the right of Congress to establish
probation by statute was conceded. Said the court through its Chief Justice: ". . . and so
far as the future is concerned, that is, the causing of the imposition of penalties as fixed
to be subject, by probation legislation or such other means as the legislative mind may
devise, to such judicial discretion as may be adequate to enable courts to meet by the
exercise of an enlarged but wise discretion the infinite variations which may be
presented to them for judgment, recourse must be had Congress whose legislative
power on the subject is in the very nature of things adequately complete." (Quoted in
Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National Probation
Association and others to agitate for the enactment by Congress of a federal probation
law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C.
title 18, sec. 724). This was followed by an appropriation to defray the salaries and
expenses of a certain number of probation officers chosen by civil service. (Johnson,
Probation for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed.,
309), the Supreme Court of the United States, through Chief Justice Taft, held that when

a person sentenced to imprisonment by a district court has begun to serve his sentence,
that court has no power under the Probation Act of March 4, 1925 to grant him
probation even though the term at which sentence was imposed had not yet expired. In
this case of Murray, the constitutionality of the probation Act was not considered but
was assumed. The court traced the history of the Act and quoted from the report of the
Committee on the Judiciary of the United States House of Representatives (Report No.
1377, 68th Congress, 2 Session) the following statement:
Prior to the so-called Killitts case, rendered in December, 1916, the district courts
exercised a form of probation either, by suspending sentence or by placing the
defendants under state probation officers or volunteers. In this case, however (Ex parte
United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann.
Cas. 1917B, 355), the Supreme Court denied the right of the district courts to suspend
sentenced. In the same opinion the court pointed out the necessity for action by
Congress if the courts were to exercise probation powers in the future . . .
Since this decision was rendered, two attempts have been made to enact probation
legislation. In 1917, a bill was favorably reported by the Judiciary Committee and passed
the House. In 1920, the judiciary Committee again favorably reported a probation bill to
the House, but it was never reached for definite action.
If this bill is enacted into law, it will bring the policy of the Federal government with
reference to its treatment of those convicted of violations of its criminal laws in
harmony with that of the states of the Union. At the present time every state has a
probation law, and in all but twelve states the law applies both to adult and juvenile
offenders. (see, also, Johnson, Probation for Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been sustained by inferior federal
courts. In Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit
said:
Since the passage of the Probation Act of March 4, 1925, the questions under
consideration have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7
F. [2d], 590), and the constitutionality of the act fully sustained, and the same held in no
manner to encroach upon the pardoning power of the President. This case will be found
to contain an able and comprehensive review of the law applicable here. It arose under
the act we have to consider, and to it and the authorities cited therein special reference

is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court of
Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the
Probation Act.
We have seen that in 1916 the Supreme Court of the United States; in plain and
unequivocal language, pointed to Congress as possessing the requisite power to enact
probation laws, that a federal probation law as actually enacted in 1925, and that the
constitutionality of the Act has been assumed by the Supreme Court of the United
States in 1928 and consistently sustained by the inferior federal courts in a number of
earlier cases.
We are fully convinced that the Philippine Legislature, like the Congress of the United
States, may legally enact a probation law under its broad power to fix the punishment of
any and all penal offenses. This conclusion is supported by other authorities. In Ex
parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It
is clearly within the province of the Legislature to denominate and define all classes of
crime, and to prescribe for each a minimum and maximum punishment." And in State
vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189),
the court said: "The legislative power to set punishment for crime is very broad, and in
the exercise of this power the general assembly may confer on trial judges, if it sees fit,
the largest discretion as to the sentence to be imposed, as to the beginning and end of
the punishment and whether it should be certain or indeterminate or conditional."
(Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine
Legislature has defined all crimes and fixed the penalties for their violation. Invariably,
the legislature has demonstrated the desire to vest in the courts — particularly the trial
courts — large discretion in imposing the penalties which the law prescribes in
particular cases. It is believed that justice can best be served by vesting this power in the
courts, they being in a position to best determine the penalties which an individual
convict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed to
refrain from imposing a sentence merely because, taking into consideration the degree
of malice and the injury caused by the offense, the penalty provided by law is clearly
excessive, the courts being allowed in such case to submit to the Chief Executive,
through the Department of Justice, such statement as it may deem proper (see art. 5,
Revised Penal Code), in cases where both mitigating and aggravating circumstances are
attendant in the commission of a crime and the law provides for a penalty composed of
two indivisible penalties, the courts may allow such circumstances to offset one another

in consideration of their number and importance, and to apply the penalty according to
the result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera
and Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal
Code empowers the courts to determine, within the limits of each periods, in case the
penalty prescribed by law contains three periods, the extent of the evil produced by the
crime. In the imposition of fines, the courts are allowed to fix any amount within the
limits established by law, considering not only the mitigating and aggravating
circumstances, but more particularly the wealth or means of the culprit. (Art. 66,
Revised Penal Code.) Article 68, paragraph 1, of the same Code provides that "a
discretionary penalty shall be imposed" upon a person under fifteen but over nine years
of age, who has not acted without discernment, but always lower by two degrees at
least than that prescribed by law for the crime which he has committed. Article 69 of
the same Code provides that in case of "incomplete self-defense", i.e., when the crime
committed is not wholly excusable by reason of the lack of some of the conditions
required to justify the same or to exempt from criminal liability in the several cases
mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the
period which may be deemed proper, in view of the number and nature of the
conditions of exemption present or lacking." And, in case the commission of what are
known as "impossible" crimes, "the court, having in mind the social danger and the
degree of criminality shown by the offender," shall impose upon him either arresto
mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive imprisonment
is deducted form the entire term of imprisonment, except in certain cases expressly
mentioned (art. 29); the death penalty is not imposed when the guilty person is more
than seventy years of age, or where upon appeal or revision of the case by the Supreme
Court, all the members thereof are not unanimous in their voting as to the propriety of
the imposition of the death penalty (art. 47, see also, sec. 133, Revised Administrative
Code, as amended by Commonwealth Act No. 3); the death sentence is not to be
inflicted upon a woman within the three years next following the date of the sentence
or while she is pregnant, or upon any person over seventy years of age (art. 83); and
when a convict shall become insane or an imbecile after final sentence has been
pronounced, or while he is serving his sentenced, the execution of said sentence shall be
suspended with regard to the personal penalty during the period of such insanity or
imbecility (art. 79).

But the desire of the legislature to relax what might result in the undue harshness of the
penal laws is more clearly demonstrated in various other enactments, including the
probation Act. There is the Indeterminate Sentence Law enacted in 1933 as Act No.
4103 and subsequently amended by Act No. 4225, establishing a system of parole (secs.
5 to 100 and granting the courts large discretion in imposing the penalties of the law.
Section 1 of the law as amended provides; "hereafter, in imposing a prison sentence for
an offenses punished by the Revised Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate sentence the maximum term of which shall
be that which, in view of the attending circumstances, could be properly imposed under
the rules of the said Code, and to a minimum which shall be within the range of the
penalty next lower to that prescribed by the Code for the offense; and if the offense is
punished by any other law, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the maximum fixed by said law
and the minimum shall not be less than the minimum term prescribed by the same."
Certain classes of convicts are, by section 2 of the law, excluded from the operation
thereof. The Legislature has also enacted the Juvenile Delinquency Law (Act No. 3203)
which was subsequently amended by Act No. 3559. Section 7 of the original Act and
section 1 of the amendatory Act have become article 80 of the Revised Penal Code,
amended by Act No. 4117 of the Philippine Legislature and recently reamended by
Commonwealth Act No. 99 of the National Assembly. In this Act is again manifested the
intention of the legislature to "humanize" the penal laws. It allows, in effect, the
modification in particular cases of the penalties prescribed by law by permitting the
suspension of the execution of the judgment in the discretion of the trial court, after
due hearing and after investigation of the particular circumstances of the offenses, the
criminal record, if any, of the convict, and his social history. The Legislature has in reality
decreed that in certain cases no punishment at all shall be suffered by the convict as
long as the conditions of probation are faithfully observed. It this be so, then, it cannot
be said that the Probation Act comes in conflict with the power of the Chief Executive to
grant pardons and reprieves, because, to use the language of the Supreme Court of New
Mexico, "the element of punishment or the penalty for the commission of a wrong,
while to be declared by the courts as a judicial function under and within the limits of
law as announced by legislative acts, concerns solely the procedure and conduct of
criminal causes, with which the executive can have nothing to do." (Ex
parte Bates, supra.) In Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843), the court
upheld the constitutionality of the Georgia probation statute against the contention that

it attempted to delegate to the courts the pardoning power lodged by the constitution
in the governor alone is vested with the power to pardon after final sentence has been
imposed by the courts, the power of the courts to imposed any penalty which may be
from time to time prescribed by law and in such manner as may be defined cannot be
questioned."
We realize, of course, the conflict which the American cases disclose. Some cases hold it
unlawful for the legislature to vest in the courts the power to suspend the operation of
a sentenced, by probation or otherwise, as to do so would encroach upon the pardoning
power of the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep.,
846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919],
43 Nev., 150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim.
Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650; People vs. Barrett
[1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep., 230; Snodgrass vs. State
[1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162;Ex parte Shelor
[1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190;
69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630;
181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton [1903],
109 Tenn., 544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590;
Archer vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A.
4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R.,
1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal.
App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874;
People vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo.,
60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams
vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise [1913], 257 Ill., 443; 100
N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St.
Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156
Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex rel.
Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt
[1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew
[1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl.
424; Ex parteBates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac., 698; People
vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; 23 L. R. A., 856; 36 N. E.,

386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55 Misc., 639; 106
N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn
[1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A.,
1915C, 1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P.,
781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C.,
466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34
Tenn., 232; Woods vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State
[1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1913],70 Tex., Crim. Rep., 618;
158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165 S. W., 573; King vs.
State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex.
Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W.
[2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va.,
802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel.
Tingstand vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We
elect to follow this long catena of authorities holding that the courts may be legally
authorized by the legislature to suspend sentence by the establishment of a system of
probation however characterized. State ex rel. Tingstand vs. Starwich ([1922], 119
Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular mention. In that case, a
statute enacted in 1921 which provided for the suspension of the execution of a
sentence until otherwise ordered by the court, and required that the convicted person
be placed under the charge of a parole or peace officer during the term of such
suspension, on such terms as the court may determine, was held constitutional and as
not giving the court a power in violation of the constitutional provision vesting the
pardoning power in the chief executive of the state. (Vide, also, Re Giannini [1912], 18
Cal App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same. They are actually
district and different from each other, both in origin and in nature. In People ex rel.
Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A.,
856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York said:
. . . The power to suspend sentence and the power to grant reprieves and pardons, as
understood when the constitution was adopted, are totally distinct and different in their
nature. The former was always a part of the judicial power; the latter was always a part
of the executive power. The suspension of the sentence simply postpones the judgment
of the court temporarily or indefinitely, but the conviction and liability following it, and

the civil disabilities, remain and become operative when judgment is rendered. A
pardon reaches both the punishment prescribed for the offense and the guilt of the
offender. It releases the punishment, and blots out of existence the guilt, so that in the
eye of the law, the offender is as innocent as if he had never committed the offense. It
removes the penalties and disabilities, and restores him to all his civil rights. It makes
him, as it were, a new man, and gives him a new credit and capacity. (Ex parteGarland,
71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law.
ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)
The framers of the federal and the state constitutions were perfectly familiar with the
principles governing the power to grant pardons, and it was conferred by these
instruments upon the executive with full knowledge of the law upon the subject, and
the words of the constitution were used to express the authority formerly exercised by
the English crown, or by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18
How., 307; 15 Law. ed., 421.) As this power was understood, it did not comprehend any
part of the judicial functions to suspend sentence, and it was never intended that the
authority to grant reprieves and pardons should abrogate, or in any degree restrict, the
exercise of that power in regard to its own judgments, that criminal courts has so long
maintained. The two powers, so distinct and different in their nature and character,
were still left separate and distinct, the one to be exercised by the executive, and the
other by the judicial department. We therefore conclude that a statute which, in terms,
authorizes courts of criminal jurisdiction to suspend sentence in certain cases after
conviction, — a power inherent in such courts at common law, which was understood
when the constitution was adopted to be an ordinary judicial function, and which, ever
since its adoption, has been exercised of legislative power under the constitution. It
does not encroach, in any just sense, upon the powers of the executive, as they have
been understood and practiced from the earliest times. (Quoted with approval in
Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J.,
concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as in pardon, a free man. He is not

finally and completely exonerated. He is not exempt from the entire punishment which
the law inflicts. Under the Probation Act, the probationer's case is not terminated by the
mere fact that he is placed on probation. Section 4 of the Act provides that the
probation may be definitely terminated and the probationer finally discharged from
supervision only after the period of probation shall have been terminated and the

probation officer shall have submitted a report, and the court shall have found that the
probationer has complied with the conditions of probation. The probationer, then,
during the period of probation, remains in legal custody — subject to the control of the
probation officer and of the court; and, he may be rearrested upon the non-fulfillment
of the conditions of probation and, when rearrested, may be committed to prison to
serve the sentence originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not complete liberty, and may be
far from it. It is really a new mode of punishment, to be applied by the judge in a proper
case, in substitution of the imprisonment and find prescribed by the criminal laws. For
this reason its application is as purely a judicial act as any other sentence carrying out
the law deemed applicable to the offense. The executive act of pardon, on the contrary,
is against the criminal law, which binds and directs the judges, or rather is outside of
and above it. There is thus no conflict with the pardoning power, and no possible
unconstitutionality of the Probation Act for this cause. (Archer vs. Snook [1926], 10 F.
[2d], 567, 569.)
Probation should also be distinguished from reprieve and from commutation of the
sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144;
150 S. W., 162), is relied upon most strongly by the petitioners as authority in support of
their contention that the power to grant pardons and reprieves, having been vested
exclusively upon the Chief Executive by the Jones Law, may not be conferred by the
legislature upon the courts by means of probation law authorizing the indefinite judicial
suspension of sentence. We have examined that case and found that although the Court
of Criminal Appeals of Texas held that the probation statute of the state in terms
conferred on the district courts the power to grant pardons to persons convicted of
crime, it also distinguished between suspensions sentence on the one hand, and
reprieve and commutation of sentence on the other. Said the court, through Harper, J.:
That the power to suspend the sentence does not conflict with the power of the
Governor to grant reprieves is settled by the decisions of the various courts; it being
held that the distinction between a "reprieve" and a suspension of sentence is that a
reprieve postpones the execution of the sentence to a day certain, whereas a
suspension is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re
Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words & Phrases, pp. 6115,
6116. This law cannot be hold in conflict with the power confiding in the Governor to

grant commutations of punishment, for a commutations is not but to change the
punishment assessed to a less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the
Supreme Court of Montana had under consideration the validity of the adult probation
law of the state enacted in 1913, now found in sections 12078-12086, Revised Codes of
1921. The court held the law valid as not impinging upon the pardoning power of the
executive. In a unanimous decision penned by Justice Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each had a well understood
meaning at the time our Constitution was adopted, and no one of them was intended to
comprehend the suspension of the execution of the judgment as that phrase is
employed in sections 12078-12086. A "pardon" is an act of grace, proceeding from the
power intrusted with the execution of the laws which exempts the individual on whom
it is bestowed from the punishment the law inflicts for a crime he has committed
(United States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a remission of guilt (State vs.
Lewis, 111 La., 693; 35 So., 816), a forgiveness of the offense (Cook vs. Middlesex
County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71).
"Commutation" is a remission of a part of the punishment; a substitution of a less
penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep.,
563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is
the withholding of the sentence for an interval of time (4 Blackstone's Commentaries,
394), a postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a
temporary suspension of execution (Butler vs. State, 97 Ind., 373).
Few adjudicated cases are to be found in which the validity of a statute similar to our
section 12078 has been determined; but the same objections have been urged against
parole statutes which vest the power to parole in persons other than those to whom the
power of pardon is granted, and these statutes have been upheld quite uniformly, as a
reference to the numerous cases cited in the notes to Woods vs. State (130 Tenn., 100;
169 S. W.,558, reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the pardoning power of the
Executive. The pardoning power, in respect to those serving their probationary
sentences, remains as full and complete as if the Probation Law had never been
enacted. The President may yet pardon the probationer and thus place it beyond the
power of the court to order his rearrest and imprisonment. (Riggs vs. United States

[1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the pardoning power of the
executive and is not for that reason void, does section 11 thereof constitute, as
contended, an undue delegation of legislative power?
Under the constitutional system, the powers of government are distributed among
three coordinate and substantially independent organs: the legislative, the executive
and the judicial. Each of these departments of the government derives its authority
from the Constitution which, in turn, is the highest expression of popular will. Each has
exclusive cognizance of the matters within its jurisdiction, and is supreme within its own
sphere.
The power to make laws — the legislative power — is vested in a bicameral Legislature
by the Jones Law (sec. 12) and in a unicamiral National Assembly by the Constitution
(Act. VI, sec. 1, Constitution of the Philippines). The Philippine Legislature or the
National Assembly may not escape its duties and responsibilities by delegating that
power to any other body or authority. Any attempt to abdicate the power is
unconstitutional and void, on the principle that potestas delegata non delegare potest.
This principle is said to have originated with the glossators, was introduced into English
law through a misreading of Bracton, there developed as a principle of agency, was
established by Lord Coke in the English public law in decisions forbidding the delegation
of judicial power, and found its way into America as an enlightened principle of free
government. It has since become an accepted corollary of the principle of separation of
powers. (5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is that
of Locke, namely: "The legislative neither must nor can transfer the power of making
laws to anybody else, or place it anywhere but where the people have." (Locke on Civil
Government, sec. 142.) Judge Cooley enunciates the doctrine in the following oft-
quoted language: "One of the settled maxims in constitutional law is, that the power
conferred upon the legislature to make laws cannot be delegated by that department to
any other body or authority. Where the sovereign power of the state has located the
authority, there it must remain; and by the constitutional agency alone the laws must be
made until the Constitution itself is charged. The power to whose judgment, wisdom,
and patriotism this high prerogative has been intrusted cannot relieve itself of the
responsibilities by choosing other agencies upon which the power shall be devolved, nor
can it substitute the judgment, wisdom, and patriotism of any other body for those to
which alone the people have seen fit to confide this sovereign trust." (Cooley on
Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs.
Barrias [1908], 11 Phil., 327.) This court posits the doctrine "on the ethical principle that
such a delegated power constitutes not only a right but a duty to be performed by the
delegate by the instrumentality of his own judgment acting immediately upon the
matter of legislation and not through the intervening mind of another. (U. S. vs.
Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of legislative power is not absolute and
inflexible. It admits of exceptions. An exceptions sanctioned by immemorial practice
permits the central legislative body to delegate legislative powers to local authorities.
(Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39
Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct.
Rep., 256; State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our system
of government, that local affairs shall be managed by local authorities, and general
affairs by the central authorities; and hence while the rule is also fundamental that the
power to make laws cannot be delegated, the creation of the municipalities exercising
local self government has never been held to trench upon that rule. Such legislation is
not regarded as a transfer of general legislative power, but rather as the grant of the
authority to prescribed local regulations, according to immemorial practice, subject of
course to the interposition of the superior in cases of necessity." (Stoutenburgh vs.
Hennick, supra.) On quite the same principle, Congress is powered to delegate
legislative power to such agencies in the territories of the United States as it may select.
A territory stands in the same relation to Congress as a municipality or city to the state
government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51
L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup. Ct.
Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation
of legislative power to the people at large. Some authorities maintain that this may not
be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs. Kennedy [1913], 207 N.
Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616). However, the question of whether or not
a state has ceased to be republican in form because of its adoption of the initiative and
referendum has been held not to be a judicial but a political question (Pacific States Tel.
& Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224),
and as the constitutionality of such laws has been looked upon with favor by certain
progressive courts, the sting of the decisions of the more conservative courts has been
pretty well drawn. (Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L.

R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L.
R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also,
legislative power may be delegated by the Constitution itself. Section 14, paragraph 2,
of article VI of the Constitution of the Philippines provides that "The National Assembly
may by law authorize the President, subject to such limitations and restrictions as it may
impose, to fix within specified limits, tariff rates, import or export quotas, and tonnage
and wharfage dues." And section 16 of the same article of the Constitution provides that
"In times of war or other national emergency, the National Assembly may by law
authorize the President, for a limited period and subject to such restrictions as it may
prescribed, to promulgate rules and regulations to carry out a declared national policy."
It is beyond the scope of this decision to determine whether or not, in the absence of
the foregoing constitutional provisions, the President could be authorized to exercise
the powers thereby vested in him. Upon the other hand, whatever doubt may have
existed has been removed by the Constitution itself.
The case before us does not fall under any of the exceptions hereinabove mentioned.
The challenged section of Act No. 4221 in section 11 which reads as follows:
This Act shall apply only in those provinces in which the respective provincial boards
have provided for the salary of a probation officer at rates not lower than those now
provided for provincial fiscals. Said probation officer shall be appointed by the Secretary
of Justice and shall be subject to the direction of the Probation Office. (Emphasis ours.)
In testing whether a statute constitute an undue delegation of legislative power or not,

it is usual to inquire whether the statute was complete in all its terms and provisions
when it left the hands of the legislature so that nothing was left to the judgment of any
other appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the United States vs.
Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the foregoing rule when it held
an act of the legislature void in so far as it undertook to authorize the Governor-
General, in his discretion, to issue a proclamation fixing the price of rice and to make the
sale of it in violation of the proclamation a crime. (See and cf. Compañia General de
Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general
rule, however, is limited by another rule that to a certain extent matters of detail may
be left to be filled in by rules and regulations to be adopted or promulgated by executive
officers and administrative boards. (6 R. C. L., pp. 177-179.)

For the purpose of Probation Act, the provincial boards may be regarded as
administrative bodies endowed with power to determine when the Act should take
effect in their respective provinces. They are the agents or delegates of the legislature in
this respect. The rules governing delegation of legislative power to administrative and
executive officers are applicable or are at least indicative of the rule which should be
here adopted. An examination of a variety of cases on delegation of power to
administrative bodies will show that the ratio decidendiis at variance but, it can be
broadly asserted that the rationale revolves around the presence or absence of a
standard or rule of action — or the sufficiency thereof — in the statute, to aid the
delegate in exercising the granted discretion. In some cases, it is held that the standard
is sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a
rule, an act of the legislature is incomplete and hence invalid if it does not lay down any
rule or definite standard by which the administrative officer or board may be guided in
the exercise of the discretionary powers delegated to it. (See Schecter vs. United States
[1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex
rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and
cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the case at bar, what
rules are to guide the provincial boards in the exercise of their discretionary power to
determine whether or not the Probation Act shall apply in their respective provinces?
What standards are fixed by the Act? We do not find any and none has been pointed to
us by the respondents. The probation Act does not, by the force of any of its provisions,
fix and impose upon the provincial boards any standard or guide in the exercise of their
discretionary power. What is granted, if we may use the language of Justice Cardozo in
the recent case of Schecter, supra, is a "roving commission" which enables the
provincial boards to exercise arbitrary discretion. By section 11 if the Act, the legislature
does not seemingly on its own authority extend the benefits of the Probation Act to the
provinces but in reality leaves the entire matter for the various provincial boards to
determine. In other words, the provincial boards of the various provinces are to
determine for themselves, whether the Probation Law shall apply to their provinces or
not at all. The applicability and application of the Probation Act are entirely placed in the
hands of the provincial boards. If the provincial board does not wish to have the Act
applied in its province, all that it has to do is to decline to appropriate the needed
amount for the salary of a probation officer. The plain language of the Act is not
susceptible of any other interpretation. This, to our minds, is a virtual surrender of
legislative power to the provincial boards.

"The true distinction", says Judge Ranney, "is between the delegation of power to make
the law, which necessarily involves a discretion as to what it shall be, and conferring an
authority or discretion as to its execution, to be exercised under and in pursuance of the
law. The first cannot be done; to the latter no valid objection can be made." (Cincinnati,
W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland
on Statutory Construction, sec 68.) To the same effect are the decision of this court
in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil., 547); Rubi
vs. Provincial Board of Mindoro ([1919],39 Phil., 660) andCruz vs. Youngberg ([1931], 56
Phil., 234). In the first of these cases, this court sustained the validity of the law
conferring upon the Governor-General authority to adjust provincial and municipal
boundaries. In the second case, this court held it lawful for the legislature to direct non-
Christian inhabitants to take up their habitation on unoccupied lands to be selected by
the provincial governor and approved by the provincial board. In the third case, it was
held proper for the legislature to vest in the Governor-General authority to suspend or
not, at his discretion, the prohibition of the importation of the foreign cattle, such
prohibition to be raised "if the conditions of the country make this advisable or if
deceased among foreign cattle has ceased to be a menace to the agriculture and
livestock of the lands."
It should be observed that in the case at bar we are not concerned with the simple
transference of details of execution or the promulgation by executive or administrative
officials of rules and regulations to carry into effect the provisions of a law. If we were,
recurrence to our own decisions would be sufficient. (U. S. vs. Barrias [1908], 11 Phil.,
327; U.S. vs. Molina [1914], 29 Phil., 119; Alegre vs. Collector of Customs [1929], 53
Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31
Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be made to the effect as law after it
leaves the hands of the legislature. It is true that laws may be made effective on certain
contingencies, as by proclamation of the executive or the adoption by the people of a
particular community (6 R. C. L., 116, 170-172; Cooley, Constitutional Limitations, 8th
ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the
Supreme Court of the United State ruled that the legislature may delegate a power not
legislative which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins.
Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain facts is
such a power which may be delegated. There is nothing essentially legislative in

ascertaining the existence of facts or conditions as the basis of the taking into effect of a
law. That is a mental process common to all branches of the government. (Dowling vs.
Lancashire Ins. Co., supra; In reVillage of North Milwaukee [1896], 93 Wis., 616; 97
N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs.
Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding the
apparent tendency, however, to relax the rule prohibiting delegation of legislative
authority on account of the complexity arising from social and economic forces at work
in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX; Laski, "The
Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard,
"Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152),
the orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations
finds restatement in Prof. Willoughby's treatise on the Constitution of the United States
in the following language — speaking of declaration of legislative power to
administrative agencies: "The principle which permits the legislature to provide that the
administrative agent may determine when the circumstances are such as require the
application of a law is defended upon the ground that at the time this authority is
granted, the rule of public policy, which is the essence of the legislative act, is
determined by the legislature. In other words, the legislature, as it its duty to do,
determines that, under given circumstances, certain executive or administrative action
is to be taken, and that, under other circumstances, different of no action at all is to be
taken. What is thus left to the administrative official is not the legislative determination
of what public policy demands, but simply the ascertainment of what the facts of the
case require to be done according to the terms of the law by which he is governed."
(Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p. 1637.) In Miller
vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971,
974), it was said: "The efficiency of an Act as a declaration of legislative will must, of
course, come from Congress, but the ascertainment of the contingency upon which the
Act shall take effect may be left to such agencies as it may designate." (See, also, 12 C.J.,
p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.)
The legislature, then may provide that a contingencies leaving to some other person or
body the power to determine when the specified contingencies has arisen. But, in the
case at bar, the legislature has not made the operation of the Prohibition Act contingent
upon specified facts or conditions to be ascertained by the provincial board. It leaves, as
we have already said, the entire operation or non-operation of the law upon the
provincial board. the discretion vested is arbitrary because it is absolute and unlimited.

A provincial board need not investigate conditions or find any fact, or await the
happening of any specified contingency. It is bound by no rule, — limited by no principle
of expendiency announced by the legislature. It may take into consideration certain
facts or conditions; and, again, it may not. It may have any purpose or no purpose at all.
It need not give any reason whatsoever for refusing or failing to appropriate any funds
for the salary of a probation officer. This is a matter which rest entirely at its pleasure.
The fact that at some future time — we cannot say when — the provincial boards may
appropriate funds for the salaries of probation officers and thus put the law into
operation in the various provinces will not save the statute. The time of its taking into
effect, we reiterate, would yet be based solely upon the will of the provincial boards and
not upon the happening of a certain specified contingency, or upon the ascertainment
of certain facts or conditions by a person or body other than legislature itself.
The various provincial boards are, in practical effect, endowed with the power of
suspending the operation of the Probation Law in their respective provinces. In some
jurisdiction, constitutions provided that laws may be suspended only by the legislature
or by its authority. Thus, section 28, article I of the Constitution of Texas provides that
"No power of suspending laws in this state shall be exercised except by the legislature";
and section 26, article I of the Constitution of Indiana provides "That the operation of
the laws shall never be suspended, except by authority of the General Assembly." Yet,
even provisions of this sort do not confer absolute power of suspension upon the
legislature. While it may be undoubted that the legislature may suspend a law, or the
execution or operation of a law, a law may not be suspended as to certain individuals
only, leaving the law to be enjoyed by others. The suspension must be general, and
cannot be made for individual cases or for particular localities. In Holden vs.
James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was said:
By the twentieth article of the declaration of rights in the constitution of this

commonwealth, it is declared that the power of suspending the laws, or the execution
of the laws, ought never to be exercised but by the legislature, or by authority derived
from it, to be exercised in such particular cases only as the legislature shall expressly
provide for. Many of the articles in that declaration of rights were adopted from the
Magna Charta of England, and from the bill of rights passed in the reign of William and
Mary. The bill of rights contains an enumeration of the oppressive acts of James II,
tending to subvert and extirpate the protestant religion, and the laws and liberties of
the kingdom; and the first of them is the assuming and exercising a power of dispensing

with and suspending the laws, and the execution of the laws without consent of
parliament. The first article in the claim or declaration of rights contained in the statute
is, that the exercise of such power, by legal authority without consent of parliament, is
illegal. In the tenth section of the same statute it is further declared and enacted, that
"No dispensation by non obstante of or to any statute, or part thereof, should be
allowed; but the same should be held void and of no effect, except a dispensation be
allowed of in such statute." There is an implied reservation of authority in the
parliament to exercise the power here mentioned; because, according to the theory of
the English Constitution, "that absolute despotic power, which must in all governments
reside somewhere," is intrusted to the parliament: 1 Bl. Com., 160.
The principles of our government are widely different in this particular. Here the
sovereign and absolute power resides in the people; and the legislature can only
exercise what is delegated to them according to the constitution. It is obvious that the
exercise of the power in question would be equally oppressive to the subject, and
subversive of his right to protection, "according to standing laws," whether exercised by
one man or by a number of men. It cannot be supposed that the people when adopting
this general principle from the English bill of rights and inserting it in our constitution,
intended to bestow by implication on the general court one of the most odious and
oppressive prerogatives of the ancient kings of England. It is manifestly contrary to the
first principles of civil liberty and natural justice, and to the spirit of our constitution and
laws, that any one citizen should enjoy privileges and advantages which are denied to all
others under like circumstances; or that ant one should be subject to losses, damages,
suits, or actions from which all others under like circumstances are exempted.
To illustrate the principle: A section of a statute relative to dogs made the owner of any
dog liable to the owner of domestic animals wounded by it for the damages without
proving a knowledge of it vicious disposition. By a provision of the act, power was given
to the board of supervisors to determine whether or not during the current year their
county should be governed by the provisions of the act of which that section constituted
a part. It was held that the legislature could not confer that power. The court observed
that it could no more confer such a power than to authorize the board of supervisors of
a county to abolish in such county the days of grace on commercial paper, or to suspend
the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute
in Missouri was held void for the same reason in State vs. Field ([1853, 17 Mo., 529;59
Am. Dec., 275.) In that case a general statute formulating a road system contained a

provision that "if the county court of any county should be of opinion that the
provisions of the act should not be enforced, they might, in their discretion, suspend the
operation of the same for any specified length of time, and thereupon the act should
become inoperative in such county for the period specified in such order; and
thereupon order the roads to be opened and kept in good repair, under the laws
theretofore in force." Said the court: ". . . this act, by its own provisions, repeals the
inconsistent provisions of a former act, and yet it is left to the county court to say which
act shall be enforce in their county. The act does not submit the question to the county
court as an original question, to be decided by that tribunal, whether the act shall
commence its operation within the county; but it became by its own terms a law in
every county not excepted by name in the act. It did not, then, require the county court
to do any act in order to give it effect. But being the law in the county, and having by its
provisions superseded and abrogated the inconsistent provisions of previous laws, the
county court is . . . empowered, to suspend this act and revive the repealed provisions
of the former act. When the question is before the county court for that tribunal to
determine which law shall be in force, it is urge before us that the power then to be
exercised by the court is strictly legislative power, which under our constitution, cannot
be delegated to that tribunal or to any other body of men in the state. In the present
case, the question is not presented in the abstract; for the county court of Saline county,
after the act had been for several months in force in that county, did by order suspend
its operation; and during that suspension the offense was committed which is the
subject of the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32
S., 687.)
True, the legislature may enact laws for a particular locality different from those
applicable to other localities and, while recognizing the force of the principle
hereinabove expressed, courts in may jurisdiction have sustained the constitutionality of
the submission of option laws to the vote of the people. (6 R.C.L., p. 171.) But option
laws thus sustained treat of subjects purely local in character which should receive
different treatment in different localities placed under different circumstances. "They
relate to subjects which, like the retailing of intoxicating drinks, or the running at large
of cattle in the highways, may be differently regarded in different localities, and they are
sustained on what seems to us the impregnable ground, that the subject, though not
embraced within the ordinary powers of municipalities to make by-laws and ordinances,
is nevertheless within the class of public regulations, in respect to which it is proper that
the local judgment should control." (Cooley on Constitutional Limitations, 5th ed., p.

148.) So that, while we do not deny the right of local self-government and the propriety
of leaving matters of purely local concern in the hands of local authorities or for the
people of small communities to pass upon, we believe that in matters of general of
general legislation like that which treats of criminals in general, and as regards the
general subject of probation, discretion may not be vested in a manner so unqualified
and absolute as provided in Act No. 4221. True, the statute does not expressly state that
the provincial boards may suspend the operation of the Probation Act in particular
provinces but, considering that, in being vested with the authority to appropriate or not
the necessary funds for the salaries of probation officers, they thereby are given
absolute discretion to determine whether or not the law should take effect or operate in
their respective provinces, the provincial boards are in reality empowered by the
legislature to suspend the operation of the Probation Act in particular provinces, the Act
to be held in abeyance until the provincial boards should decide otherwise by
appropriating the necessary funds. The validity of a law is not tested by what has been
done but by what may be done under its provisions. (Walter E. Olsen & Co. vs. Aldanese
and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted to the legislature not only
in the expression of what may be termed legislative policy but in the elaboration and
execution thereof. "Without this power, legislation would become oppressive and yet
imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular government
lives because of the inexhaustible reservoir of power behind it. It is unquestionable that
the mass of powers of government is vested in the representatives of the people and
that these representatives are no further restrained under our system than by the
express language of the instrument imposing the restraint, or by particular provisions
which by clear intendment, have that effect. (Angara vs. Electoral Commission [1936],
35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be
borne in mind that a constitution is both a grant and a limitation of power and one of
these time-honored limitations is that, subject to certain exceptions, legislative power
shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful
delegation of legislative authority to the provincial boards and is, for this reason,
unconstitutional and void.

3. It is also contended that the Probation Act violates the provisions of our Bill of Rights
which prohibits the denial to any person of the equal protection of the laws (Act. III, sec.
1 subsec. 1. Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all the tree
grand departments of our government and on the subordinate instrumentalities and
subdivision thereof, and on many constitutional power, like the police power, taxation
and eminent domain. The equal protection of laws, sententiously observes the Supreme
Court of the United States, "is a pledge of the protection of equal laws." (Yick Wo vs.
Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North
Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may be
regarded as a denial of the equal protection of the laws in a question not always easily
determined. No rule that will cover every case can be formulated. (Connolly vs. Union
Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class
legislation discriminating against some and favoring others in prohibited. But
classification on a reasonable basis, and nor made arbitrarily or capriciously, is
permitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep.,
13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct.
Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The classification,
however, to be reasonable must be based on substantial distinctions which make real
differences; it must be germane to the purposes of the law; it must not be limited to
existing conditions only, and must apply equally to each member of the class. (Borgnis
vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N.
S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural
Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337;
Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough [1917], 242 U.S., 375; 37
Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene [1910], 216 U. S., 400;
30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs. Corrigan [1921],
257 U. S., 312; 12 C. J., pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be said to flow from the
unwarranted delegation of legislative power, although perhaps this is not necessarily
the result in every case. Adopting the example given by one of the counsel for the
petitioners in the course of his oral argument, one province may appropriate the
necessary fund to defray the salary of a probation officer, while another province may
refuse or fail to do so. In such a case, the Probation Act would be in operation in the

former province but not in the latter. This means that a person otherwise coming within
the purview of the law would be liable to enjoy the benefits of probation in one
province while another person similarly situated in another province would be denied
those same benefits. This is obnoxious discrimination. Contrariwise, it is also possible for
all the provincial boards to appropriate the necessary funds for the salaries of the
probation officers in their respective provinces, in which case no inequality would result
for the obvious reason that probation would be in operation in each and every province
by the affirmative action of appropriation by all the provincial boards. On that
hypothesis, every person coming within the purview of the Probation Act would be
entitled to avail of the benefits of the Act. Neither will there be any resulting inequality
if no province, through its provincial board, should appropriate any amount for the
salary of the probation officer — which is the situation now — and, also, if we accept
the contention that, for the purpose of the Probation Act, the City of Manila should be
considered as a province and that the municipal board of said city has not made any
appropriation for the salary of the probation officer. These different situations
suggested show, indeed, that while inequality may result in the application of the law
and in the conferment of the benefits therein provided, inequality is not in all cases the
necessary result. But whatever may be the case, it is clear that in section 11 of the
Probation Act creates a situation in which discrimination and inequality are permitted or
allowed. There are, to be sure, abundant authorities requiring actual denial of the equal
protection of the law before court should assume the task of setting aside a law
vulnerable on that score, but premises and circumstances considered, we are of the
opinion that section 11 of Act No. 4221 permits of the denial of the equal protection of
the law and is on that account bad. We see no difference between a law which permits
of such denial. A law may appear to be fair on its face and impartial in appearance, yet,
if it permits of unjust and illegal discrimination, it is within the constitutional
prohibitions. (By analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550;
Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia [1880],
100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed.,
567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs.
Hopkins [1886],118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U.
S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S.,
219; 31 Sup. Ct. Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U.
S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words, statutes may be
adjudged unconstitutional because of their effect in operation (General Oil Co. vs. Clain

[1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs. Clement Nat.
Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the law has the effect of
denying the equal protection of the law it is unconstitutional. (6 R. C. L. p. 372; Civil
Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs.
Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State
vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section
11 of the Probation Act, not only may said Act be in force in one or several provinces
and not be in force in other provinces, but one province may appropriate for the salary
of the probation officer of a given year — and have probation during that year — and
thereafter decline to make further appropriation, and have no probation is subsequent
years. While this situation goes rather to the abuse of discretion which delegation
implies, it is here indicated to show that the Probation Act sanctions a situation which is
intolerable in a government of laws, and to prove how easy it is, under the Act, to make
the guaranty of the equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry.
Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!
1.net
Great reliance is placed by counsel for the respondents on the case of Ocampo vs.
United States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court
of the United States affirmed the decision of this court (18 Phil., 1) by declining to
uphold the contention that there was a denial of the equal protection of the laws
because, as held in Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S.,
220; 25 Law. ed., 991), the guaranty of the equality clause does not require territorial
uniformity. It should be observed, however, that this case concerns the right to
preliminary investigations in criminal cases originally granted by General Orders No. 58.
No question of legislative authority was involved and the alleged denial of the equal
protection of the laws was the result of the subsequent enactment of Act No. 612,
amending the charter of the City of Manila (Act No. 813) and providing in section 2
thereof that "in cases triable only in the court of first instance of the City of Manila, the
defendant . . . shall not be entitled as of right to a preliminary examination in any case
where the prosecuting attorney, after a due investigation of the facts . . . shall have
presented an information against him in proper form . . . ." Upon the other hand, an
analysis of the arguments and the decision indicates that the investigation by the
prosecuting attorney — although not in the form had in the provinces — was considered
a reasonable substitute for the City of Manila, considering the peculiar conditions of the
city as found and taken into account by the legislature itself.

Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference
to a situation where the constitution of Missouri permits appeals to the Supreme Court
of the state from final judgments of any circuit court, except those in certain counties
for which counties the constitution establishes a separate court of appeals called St.
Louis Court of Appeals. The provision complained of, then, is found in the constitution
itself and it is the constitution that makes the apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is unconstitutional and void
because it is also repugnant to equal-protection clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and void for the reasons already
stated, the next inquiry is whether or not the entire Act should be avoided.
In seeking the legislative intent, the presumption is against any mutilation of a statute,
and the courts will resort to elimination only where an unconstitutional provision is
interjected into a statute otherwise valid, and is so independent and separable that its
removal will leave the constitutional features and purposes of the act substantially
unaffected by the process. (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485;
55 Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law.
ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25
Phil., 44, 47), this court stated the well-established rule concerning partial invalidity of
statutes in the following language:
. . . where part of the a statute is void, as repugnant to the Organic Law, while another
part is valid, the valid portion, if separable from the valid, may stand and be enforced.
But in order to do this, the valid portion must be in so far independent of the invalid
portion that it is fair to presume that the Legislative would have enacted it by itself if
they had supposed that they could not constitutionally enact the other. (Mutual Loan
Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes
Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain
to make a complete, intelligible, and valid statute, which carries out the legislative
intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions must be
eliminated without causing results affecting the main purpose of the Act, in a manner
contrary to the intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47
Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794; Connolly
vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs. Strassheim, 240 Ill., 279, 300;
88 N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The

language used in the invalid part of a statute can have no legal force or efficacy for any
purpose whatever, and what remains must express the legislative will, independently of
the void part, since the court has no power to legislate. (State vs. Junkin, 85 Neb., 1; 122
N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil., 759;
Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed., 1108,
1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)
It is contended that even if section 11, which makes the Probation Act applicable only in
those provinces in which the respective provincial boards provided for the salaries of
probation officers were inoperative on constitutional grounds, the remainder of the Act
would still be valid and may be enforced. We should be inclined to accept the
suggestions but for the fact that said section is, in our opinion, is inseparably linked with
the other portions of the Act that with the elimination of the section what would be left
is the bare idealism of the system, devoid of any practical benefit to a large number of
people who may be deserving of the intended beneficial result of that system. The clear
policy of the law, as may be gleaned from a careful examination of the whole context, is
to make the application of the system dependent entirely upon the affirmative action of
the different provincial boards through appropriation of the salaries for probation
officers at rates not lower than those provided for provincial fiscals. Without such action
on the part of the various boards, no probation officers would be appointed by the
Secretary of Justice to act in the provinces. The Philippines is divided or subdivided into
provinces and it needs no argument to show that if not one of the provinces — and this
is the actual situation now — appropriate the necessary fund for the salary of a
probation officer, probation under Act No. 4221 would be illusory. There can be no
probation without a probation officer. Neither can there be a probation officer without
the probation system.
Section 2 of the Acts provides that the probation officer shall supervise and visit the
probationer. Every probation officer is given, as to the person placed in probation under
his care, the powers of the police officer. It is the duty of the probation officer to see
that the conditions which are imposed by the court upon the probationer under his care
are complied with. Among those conditions, the following are enumerated in section 3
of the Act:
That the probationer (a) shall indulge in no injurious or vicious habits;
(b) Shall avoid places or persons of disreputable or harmful character;

(c) Shall report to the probation officer as directed by the court or probation officers;
(d) Shall permit the probation officer to visit him at reasonable times at his place of
abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer
concerning his conduct or condition; "(f) Shall endeavor to be employed regularly; "(g)
Shall remain or reside within a specified place or locality;
(f) Shall make reparation or restitution to the aggrieved parties for actual damages or
losses caused by his offense;
(g) Shall comply with such orders as the court may from time to time make; and
(h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation,
promulgated in accordance with law.
The court is required to notify the probation officer in writing of the period and terms of
probation. Under section 4, it is only after the period of probation, the submission of a
report of the probation officer and appropriate finding of the court that the probationer
has complied with the conditions of probation that probation may be definitely
terminated and the probationer finally discharged from supervision. Under section 5, if
the court finds that there is non-compliance with said conditions, as reported by the
probation officer, it may issue a warrant for the arrest of the probationer and said
probationer may be committed with or without bail. Upon arraignment and after an
opportunity to be heard, the court may revoke, continue or modify the probation, and if
revoked, the court shall order the execution of the sentence originally imposed. Section
6 prescribes the duties of probation officers: "It shall be the duty of every probation
officer to furnish to all persons placed on probation under his supervision a statement of
the period and conditions of their probation, and to instruct them concerning the same;
to keep informed concerning their conduct and condition; to aid and encourage them by
friendly advice and admonition, and by such other measures, not inconsistent with the
conditions imposed by court as may seem most suitable, to bring about improvement in
their conduct and condition; to report in writing to the court having jurisdiction over
said probationers at least once every two months concerning their conduct and
condition; to keep records of their work; make such report as are necessary for the
information of the Secretary of Justice and as the latter may require; and to perform
such other duties as are consistent with the functions of the probation officer and as the

court or judge may direct. The probation officers provided for in this Act may act as
parole officers for any penal or reformatory institution for adults when so requested by
the authorities thereof, and, when designated by the Secretary of Justice shall act as
parole officer of persons released on parole under Act Number Forty-one Hundred and
Three, without additional compensation."
It is argued, however, that even without section 11 probation officers maybe appointed
in the provinces under section 10 of Act which provides as follows:
There is hereby created in the Department of Justice and subject to its supervision and
control, a Probation Office under the direction of a Chief Probation Officer to be
appointed by the Governor-General with the advise and consent of the Senate who shall
receive a salary of four eight hundred pesos per annum. To carry out this Act there is
hereby appropriated out of any funds in the Insular Treasury not otherwise
appropriated, the sum of fifty thousand pesos to be disbursed by the Secretary of
Justice, who is hereby authorized to appoint probation officers and the administrative
personnel of the probation officer under civil service regulations from among those who
possess the qualifications, training and experience prescribed by the Bureau of Civil
Service, and shall fix the compensation of such probation officers and administrative
personnel until such positions shall have been included in the Appropriation Act.
But the probation officers and the administrative personnel referred to in the foregoing
section are clearly not those probation officers required to be appointed for the
provinces under section 11. It may be said, reddendo singula singulis, that the probation
officers referred to in section 10 above-quoted are to act as such, not in the various
provinces, but in the central office known as the Probation Office established in the
Department of Justice, under the supervision of the Chief Probation Officer. When the
law provides that "the probation officer" shall investigate and make reports to the court
(secs. 1 and 4); that "the probation officer" shall supervise and visit the probationer (sec.
2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec. 3,
par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall truthfully
answer any reasonable inquiries on the part of "the probation officer" concerning his
conduct or condition (sec. 3, par. 4); that the court shall notify "the probation officer" in
writing of the period and terms of probation (sec. 3, last par.), it means the probation
officer who is in charge of a particular probationer in a particular province. It never
could have been intention of the legislature, for instance, to require the probationer in
Batanes, to report to a probationer officer in the City of Manila, or to require a
probation officer in Manila to visit the probationer in the said province of Batanes, to
place him under his care, to supervise his conduct, to instruct him concerning the
conditions of his probation or to perform such other functions as are assigned to him by
law.
That under section 10 the Secretary of Justice may appoint as many probation officers as
there are provinces or groups of provinces is, of course possible. But this would be
arguing on what the law may be or should be and not on what the law is. Between is
and ought there is a far cry. The wisdom and propriety of legislation is not for us to pass
upon. We may think a law better otherwise than it is. But much as has been said
regarding progressive interpretation and judicial legislation we decline to amend the
law. We are not permitted to read into the law matters and provisions which are not
there. Not for any purpose — not even to save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law is not to make the Insular
Government defray the salaries of probation officers in the provinces but to make the
provinces defray them should they desire to have the Probation Act apply thereto. The
sum of P50,000, appropriated "to carry out the purposes of this Act", is to be applied,
among other things, for the salaries of probation officers in the central office at Manila.
These probation officers are to receive such compensations as the Secretary of Justice
may fix "until such positions shall have been included in the Appropriation Act". It was
the intention of the legislature to empower the Secretary of Justice to fix the salaries of
the probation officers in the provinces or later on to include said salaries in an
appropriation act. Considering, further, that the sum of P50,000 appropriated in section
10 is to cover, among other things, the salaries of the administrative personnel of the
Probation Office, what would be left of the amount can hardly be said to be sufficient to
pay even nominal salaries to probation officers in the provinces. We take judicial notice
of the fact that there are 48 provinces in the Philippines and we do not think it is
seriously contended that, with the fifty thousand pesos appropriated for the central
office, there can be in each province, as intended, a probation officer with a salary not
lower than that of a provincial fiscal. If this a correct, the contention that without
section 11 of Act No. 4221 said act is complete is an impracticable thing under the
remainder of the Act, unless it is conceded that in our case there can be a system of
probation in the provinces without probation officers.
Probation as a development of a modern penology is a commendable system. Probation

laws have been enacted, here and in other countries, to permit what modern
criminologist call the "individualization of the punishment", the adjustment of the
penalty to the character of the criminal and the circumstances of his particular case. It
provides a period of grace in order to aid in the rehabilitation of a penitent offender. It is
believed that, in any cases, convicts may be reformed and their development into
hardened criminals aborted. It, therefore, takes advantage of an opportunity for
reformation and avoids imprisonment so long as the convicts gives promise of reform.
(United States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48
Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its
chief end and aim. The benefit to the individual convict is merely incidental. But while
we believe that probation is commendable as a system and its implantation into the
Philippines should be welcomed, we are forced by our inescapable duty to set the law
aside because of the repugnancy to our fundamental law.
In arriving at this conclusion, we have endeavored to consider the different aspects

presented by able counsel for both parties, as well in their memorandums as in their
oral argument. We have examined the cases brought to our attention, and others we
have been able to reach in the short time at our command for the study and
deliberation of this case. In the examination of the cases and in then analysis of the legal
principles involved we have inclined to adopt the line of action which in our opinion, is
supported better reasoned authorities and is more conducive to the general welfare.
(Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities,
we have declined to be bound by certain adjudicated cases brought to our attention,
except where the point or principle is settled directly or by clear implication by the more
authoritative pronouncements of the Supreme Court of the United States. This line of
approach is justified because:
(a) The constitutional relations between the Federal and the State governments of the
United States and the dual character of the American Government is a situation which
does not obtain in the Philippines;
(b) The situation of s state of the American Union of the District of Columbia with
reference to the Federal Government of the United States is not the situation of the
province with respect to the Insular Government (Art. I, sec. 8 cl. 17 and 10th
Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871),

(c) The distinct federal and the state judicial organizations of the United States do not
embrace the integrated judicial system of the Philippines (Schneckenburger vs. Moran
[1936], 35 Off. Gaz., p. 1317);
(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs.
New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . .
new developments of times and circumstances" (Chief Justice Waite in Pensacola Tel.
Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal,
Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted
having in view existing local conditions and environment.
Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is,
accordingly, granted. Without any pronouncement regarding costs. So ordered.
Digest
65 Phil. 56 – Political Law – Constitutional Law – Bill of Rights – Equal Protection –

Probation Law
Separation of Powers – Undue Delegation of Powers – Power to Pardon
Constitutionality of Laws – May the State Question Its Own Laws
In 1934, Mariano Cu Unjieng was convicted in a criminal case filed against him by the
Hongkong and Shanghai Banking Corporation (HSBC). In 1936, he filed for probation.
The matter was referred to the Insular Probation Office which recommended the denial
of Cu Unjieng’s petition for probation. A hearing was set by Judge Jose Vera concerning
the petition for probation. The Prosecution opposed the petition. Eventually, due to
delays in the hearing, the Prosecution filed a petition for certiorari with the Supreme
Court alleging that courts like the Court of First Instance of Manila (which is presided
over by Judge Vera) have no jurisdiction to place accused like Cu Unjieng under
probation because under the law (Act No. 4221 or The Probation Law), probation is only
meant to be applied in provinces with probation officers; that the City of Manila is not a
province, and that Manila, even if construed as a province, has no designated probation
officer – hence, a Manila court cannot grant probation.
Meanwhile, HSBC also filed its own comment on the matter alleging that Act 4221 is
unconstitutional for it violates the constitutional guarantee on equal protection of the
laws. HSBC averred that the said law makes it the prerogative of provinces whether or

nor to apply the probation law – if a province chooses to apply the probation law, then
it will appoint a probation officer, but if it will not, then no probation officer will be
appointed – hence, that makes it violative of the equal protection clause.
Further, HSBC averred that the Probation Law is an undue delegation of power because
it gave the option to the provincial board to whether or not to apply the probation law –
however, the legislature did not provide guidelines to be followed by the provincial
board.
Further still, HSBC averred that the Probation Law is an encroachment of the executive’s
power to grant pardon. They say that the legislature, by providing for a probation law,
had in effect encroached upon the executive’s power to grant pardon. (Ironically, the
Prosecution agreed with the issues raised by HSBC – ironic because their main stance
was the non-applicability of the probation law only in Manila while recognizing its
application in provinces).
For his part, one of the issues raised by Cu Unjieng is that, the Prosecution, representing
the State as well as the People of the Philippines, cannot question the validity of a law,
like Act 4221, which the State itself created. Further, Cu Unjieng also castigated the
fiscal of Manila who himself had used the Probation Law in the past without question
but is now questioning the validity of the said law (estoppel).
ISSUE:
1. May the State question its own laws?
2. Is Act 4221 constitutional?
HELD:
1. Yes. There is no law which prohibits the State, or its duly authorized representative,
from questioning the validity of a law. Estoppel will also not lie against the State even if
it had been using an invalid law.
2. No, Act 4221 or the [old] Probation Law is unconstitutional.
Violation of the Equal Protection Clause
The contention of HSBC and the Prosecution is well taken on this note. There is violation
of the equal protection clause. Under Act 4221, provinces were given the option to

apply the law by simply providing for a probation officer. So if a province decides not to
install a probation officer, then the accused within said province will be unduly deprived
of the provisions of the Probation Law.
Undue Delegation of Legislative Power
There is undue delegation of legislative power. Act 4221 provides that it shall only apply
to provinces where the respective provincial boards have provided for a probation
officer. But nowhere in the law did it state as to what standard (sufficient standard test)
should provincial boards follow in determining whether or not to apply the probation
law in their province. This only creates a roving commission which will act arbitrarily
according to its whims.
Encroachment of Executive Power
Though Act 4221 is unconstitutional, the Supreme Court recognized the power of
Congress to provide for probation. Probation does not encroach upon the President’s
power to grant pardon. Probation is not pardon. Probation is within the power of
Congress to fix penalties while pardon is a power of the president to commute
penalties.

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 76633 October 18, 1988
EASTERN SHIPPING LINES, INC., petitioner,

vs.
PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA), MINISTER OF LABOR

AND EMPLOYMENT, HEARING OFFICER ABDUL BASAR and KATHLEEN D.
SACO, respondents.
Jimenea, Dala & Zaragoza Law Office for petitioner.
The Solicitor General for public respondent.
Dizon Law Office for respondent Kathleen D. Saco.
CRUZ, J.:
The private respondent in this case was awarded the sum of P192,000.00 by the
Philippine Overseas Employment Administration (POEA) for the death of her husband.
The decision is challenged by the petitioner on the principal ground that the POEA had
no jurisdiction over the case as the husband was not an overseas worker.
Vitaliano Saco was Chief Officer of the M/V Eastern Polaris when he was killed in an
accident in Tokyo, Japan, March 15, 1985. His widow sued for damages under Executive
Order No. 797 and Memorandum Circular No. 2 of the POEA. The petitioner, as owner of
the vessel, argued that the complaint was cognizable not by the POEA but by the Social
Security System and should have been filed against the State Insurance Fund. The POEA
nevertheless assumed jurisdiction and after considering the position papers of the
parties ruled in favor of the complainant. The award consisted of P180,000.00 as death
benefits and P12,000.00 for burial expenses.
The petitioner immediately came to this Court, prompting the Solicitor General to move
for dismissal on the ground of non-exhaustion of administrative remedies.
Ordinarily, the decisions of the POEA should first be appealed to the National Labor
Relations Commission, on the theory inter alia that the agency should be given an
opportunity to correct the errors, if any, of its subordinates. This case comes under one
of the exceptions, however, as the questions the petitioner is raising are essentially
questions of law. 1 Moreover, the private respondent himself has not objected to the
petitioner's direct resort to this Court, observing that the usual procedure would delay
the disposition of the case to her prejudice.
The Philippine Overseas Employment Administration was created under Executive Order
No. 797, promulgated on May 1, 1982, to promote and monitor the overseas

employment of Filipinos and to protect their rights. It replaced the National Seamen
Board created earlier under Article 20 of the Labor Code in 1974. Under Section 4(a) of
the said executive order, the POEA is vested with "original and exclusive jurisdiction
over all cases, including money claims, involving employee-employer relations arising
out of or by virtue of any law or contract involving Filipino contract workers, including
seamen." These cases, according to the 1985 Rules and Regulations on Overseas
Employment issued by the POEA, include "claims for death, disability and other
benefits" arising out of such employment. 2
The petitioner does not contend that Saco was not its employee or that the claim of his
widow is not compensable. What it does urge is that he was not an overseas worker but
a 'domestic employee and consequently his widow's claim should have been filed with
Social Security System, subject to appeal to the Employees Compensation Commission.
We see no reason to disturb the factual finding of the POEA that Vitaliano Saco was an
overseas employee of the petitioner at the time he met with the fatal accident in Japan
in 1985.
Under the 1985 Rules and Regulations on Overseas Employment, overseas employment
is defined as "employment of a worker outside the Philippines, including employment
on board vessels plying international waters, covered by a valid contract. 3 A contract
worker is described as "any person working or who has worked overseas under a valid
employment contract and shall include seamen" 4 or "any person working overseas or
who has been employed by another which may be a local employer, foreign employer,
principal or partner under a valid employment contract and shall include
seamen." 5 These definitions clearly apply to Vitaliano Saco for it is not disputed that he
died while under a contract of employment with the petitioner and alongside the
petitioner's vessel, the M/V Eastern Polaris, while berthed in a foreign country. 6
It is worth observing that the petitioner performed at least two acts which constitute
implied or tacit recognition of the nature of Saco's employment at the time of his death
in 1985. The first is its submission of its shipping articles to the POEA for processing,
formalization and approval in the exercise of its regulatory power over overseas
employment under Executive Order NO. 797. 7 The second is its payment 8 of the
contributions mandated by law and regulations to the Welfare Fund for Overseas
Workers, which was created by P.D. No. 1694 "for the purpose of providing social and
welfare services to Filipino overseas workers."

Significantly, the office administering this fund, in the receipt it prepared for the private
respondent's signature, described the subject of the burial benefits as "overseas
contract worker Vitaliano Saco." 9 While this receipt is certainly not controlling, it does
indicate, in the light of the petitioner's own previous acts, that the petitioner and the
Fund to which it had made contributions considered Saco to be an overseas employee.
The petitioner argues that the deceased employee should be likened to the employees
of the Philippine Air Lines who, although working abroad in its international flights, are
not considered overseas workers. If this be so, the petitioner should not have found it
necessary to submit its shipping articles to the POEA for processing, formalization and
approval or to contribute to the Welfare Fund which is available only to overseas
workers. Moreover, the analogy is hardly appropriate as the employees of the PAL
cannot under the definitions given be considered seamen nor are their appointments
coursed through the POEA.
The award of P180,000.00 for death benefits and P12,000.00 for burial expenses was
made by the POEA pursuant to its Memorandum Circular No. 2, which became effective
on February 1, 1984. This circular prescribed a standard contract to be adopted by both
foreign and domestic shipping companies in the hiring of Filipino seamen for overseas
employment. A similar contract had earlier been required by the National Seamen
Board and had been sustained in a number of cases by this Court. 10 The petitioner
claims that it had never entered into such a contract with the deceased Saco, but that is
hardly a serious argument. In the first place, it should have done so as required by the
circular, which specifically declared that "all parties to the employment of any Filipino
seamen on board any ocean-going vessel are advised to adopt and use this employment
contract effective 01 February 1984 and to desist from using any other format of
employment contract effective that date." In the second place, even if it had not done
so, the provisions of the said circular are nevertheless deemed written into the contract
with Saco as a postulate of the police power of the State. 11
But the petitioner questions the validity of Memorandum Circular No. 2 itself as
violative of the principle of non-delegation of legislative power. It contends that no
authority had been given the POEA to promulgate the said regulation; and even with
such authorization, the regulation represents an exercise of legislative discretion which,
under the principle, is not subject to delegation.

The authority to issue the said regulation is clearly provided in Section 4(a) of Executive
Order No. 797, reading as follows:
... The governing Board of the Administration (POEA), as hereunder provided shall
promulgate the necessary rules and regulations to govern the exercise of the
adjudicatory functions of the Administration (POEA).
Similar authorization had been granted the National Seamen Board, which, as earlier
observed, had itself prescribed a standard shipping contract substantially the same as
the format adopted by the POEA.
The second challenge is more serious as it is true that legislative discretion as to the
substantive contents of the law cannot be delegated. What can be delegated is the
discretion to determine how the law may be enforced, notwhat the law shall be. The
ascertainment of the latter subject is a prerogative of the legislature. This prerogative
cannot be abdicated or surrendered by the legislature to the delegate. Thus, in Ynot v.
Intermediate Apellate Court 12 which annulled Executive Order No. 626, this Court held:
We also mark, on top of all this, the questionable manner of the disposition of the
confiscated property as prescribed in the questioned executive order. It is there
authorized that the seized property shall be distributed to charitable institutions and
other similar institutions as the Chairman of the National Meat Inspection
Commission may see fit, in the case of carabaos.' (Italics supplied.) The phrase "may see
fit" is an extremely generous and dangerous condition, if condition it is. It is laden with
perilous opportunities for partiality and abuse, and even corruption. One searches in
vain for the usual standard and the reasonable guidelines, or better still, the limitations
that the officers must observe when they make their distribution. There is none. Their
options are apparently boundless. Who shall be the fortunate beneficiaries of their
generosity and by what criteria shall they be chosen? Only the officers named can
supply the answer, they and they alone may choose the grantee as they see fit, and in
their own exclusive discretion. Definitely, there is here a 'roving commission a wide and
sweeping authority that is not canalized within banks that keep it from overflowing,' in
short a clearly profligate and therefore invalid delegation of legislative powers.
There are two accepted tests to determine whether or not there is a valid delegation of
legislative power, viz, the completeness test and the sufficient standard test. Under the
first test, the law must be complete in all its terms and conditions when it leaves the

legislature such that when it reaches the delegate the only thing he will have to do is
enforce it. 13 Under the sufficient standard test, there must be adequate guidelines or
stations in the law to map out the boundaries of the delegate's authority and prevent
the delegation from running riot. 14
Both tests are intended to prevent a total transference of legislative authority to the
delegate, who is not allowed to step into the shoes of the legislature and exercise a
power essentially legislative.
The principle of non-delegation of powers is applicable to all the three major powers of
the Government but is especially important in the case of the legislative power because
of the many instances when its delegation is permitted. The occasions are rare when
executive or judicial powers have to be delegated by the authorities to which they
legally certain. In the case of the legislative power, however, such occasions have
become more and more frequent, if not necessary. This had led to the observation that
the delegation of legislative power has become the rule and its non-delegation the
exception.
The reason is the increasing complexity of the task of government and the growing
inability of the legislature to cope directly with the myriad problems demanding its
attention. The growth of society has ramified its activities and created peculiar and
sophisticated problems that the legislature cannot be expected reasonably to
comprehend. Specialization even in legislation has become necessary. To many of the
problems attendant upon present-day undertakings, the legislature may not have the
competence to provide the required direct and efficacious, not to say, specific solutions.
These solutions may, however, be expected from its delegates, who are supposed to be
experts in the particular fields assigned to them.
The reasons given above for the delegation of legislative powers in general are
particularly applicable to administrative bodies. With the proliferation of specialized
activities and their attendant peculiar problems, the national legislature has found it
more and more necessary to entrust to administrative agencies the authority to issue
rules to carry out the general provisions of the statute. This is called the "power of
subordinate legislation."
With this power, administrative bodies may implement the broad policies laid down in a
statute by "filling in' the details which the Congress may not have the opportunity or

competence to provide. This is effected by their promulgation of what are known as
supplementary regulations, such as the implementing rules issued by the Department of
Labor on the new Labor Code. These regulations have the force and effect of law.
Memorandum Circular No. 2 is one such administrative regulation. The model contract
prescribed thereby has been applied in a significant number of the cases without
challenge by the employer. The power of the POEA (and before it the National Seamen
Board) in requiring the model contract is not unlimited as there is a sufficient standard
guiding the delegate in the exercise of the said authority. That standard is discoverable
in the executive order itself which, in creating the Philippine Overseas Employment
Administration, mandated it to protect the rights of overseas Filipino workers to "fair
and equitable employment practices."
Parenthetically, it is recalled that this Court has accepted as sufficient standards "Public
interest" in People v. Rosenthal 15 "justice and equity" in Antamok Gold Fields v.
CIR 16 "public convenience and welfare" in Calalang v. Williams 17 and "simplicity,
economy and efficiency" in Cervantes v. Auditor General, 18 to mention only a few
cases. In the United States, the "sense and experience of men" was accepted in Mutual
Film Corp. v. Industrial Commission, 19 and "national security" in Hirabayashi v. United
States. 20
It is not denied that the private respondent has been receiving a monthly death benefit
pension of P514.42 since March 1985 and that she was also paid a P1,000.00 funeral
benefit by the Social Security System. In addition, as already observed, she also received
a P5,000.00 burial gratuity from the Welfare Fund for Overseas Workers. These
payments will not preclude allowance of the private respondent's claim against the
petitioner because it is specifically reserved in the standard contract of employment for
Filipino seamen under Memorandum Circular No. 2, Series of 1984, that—
Section C. Compensation and Benefits.—
1. In case of death of the seamen during the term of his Contract, the employer shall pay
his beneficiaries the amount of:
a. P220,000.00 for master and chief engineers
b. P180,000.00 for other officers, including radio operators and master electrician
c. P 130,000.00 for ratings.

2. It is understood and agreed that the benefits mentioned above shall be separate and
distinct from, and will be in addition to whatever benefits which the seaman is entitled
to under Philippine laws. ...
3. ...
c. If the remains of the seaman is buried in the Philippines, the owners shall pay the
beneficiaries of the seaman an amount not exceeding P18,000.00 for burial expenses.
The underscored portion is merely a reiteration of Memorandum Circular No. 22, issued
by the National Seamen Board on July 12,1976, providing an follows:
Income Benefits under this Rule Shall be Considered Additional Benefits.—
All compensation benefits under Title II, Book Four of the Labor Code of the Philippines
(Employees Compensation and State Insurance Fund) shall be granted, in addition to
whatever benefits, gratuities or allowances that the seaman or his beneficiaries may be
entitled to under the employment contract approved by the NSB. If applicable, all
benefits under the Social Security Law and the Philippine Medicare Law shall be enjoyed
by the seaman or his beneficiaries in accordance with such laws.
The above provisions are manifestations of the concern of the State for the working
class, consistently with the social justice policy and the specific provisions in the
Constitution for the protection of the working class and the promotion of its interest.
One last challenge of the petitioner must be dealt with to close t case. Its argument that
it has been denied due process because the same POEA that issued Memorandum
Circular No. 2 has also sustained and applied it is an uninformed criticism of
administrative law itself. Administrative agencies are vested with two basic powers, the
quasi-legislative and the quasi-judicial. The first enables them to promulgate
implementing rules and regulations, and the second enables them to interpret and
apply such regulations. Examples abound: the Bureau of Internal Revenue adjudicates
on its own revenue regulations, the Central Bank on its own circulars, the Securities and
Exchange Commission on its own rules, as so too do the Philippine Patent Office and the
Videogram Regulatory Board and the Civil Aeronautics Administration and the
Department of Natural Resources and so on ad infinitumon their respective
administrative regulations. Such an arrangement has been accepted as a fact of life of
modern governments and cannot be considered violative of due process as long as the

cardinal rights laid down by Justice Laurel in the landmark case of Ang Tibay v. Court of
Industrial Relations 21 are observed.
Whatever doubts may still remain regarding the rights of the parties in this case are
resolved in favor of the private respondent, in line with the express mandate of the
Labor Code and the principle that those with less in life should have more in law.
When the conflicting interests of labor and capital are weighed on the scales of social
justice, the heavier influence of the latter must be counter-balanced by the sympathy
and compassion the law must accord the underprivileged worker. This is only fair if he is
to be given the opportunity and the right to assert and defend his cause not as a
subordinate but as a peer of management, with which he can negotiate on even plane.
Labor is not a mere employee of capital but its active and equal partner.
WHEREFORE, the petition is DISMISSED, with costs against the petitioner. The
temporary restraining order dated December 10, 1986 is hereby LIFTED. It is so ordered.

SUPREME COURT
Manila
EN BANC
G.R. No. 111812 May 31, 1995
DIONISIO M. RABOR, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.
FELICIANO, J.:
Petitioner Dionisio M. Rabor is a Utility Worker in the Office of the Mayor, Davao City.
He entered the government service as a Utility worker on 10 April 1978 at the age of 55
years.
Sometime in May 1991, 1 Alma, D. Pagatpatan, an official in the Office of the Mayor of

Davao City, advised Dionisio M. Rabor to apply for retirement, considering that he had
already reached the age of sixty-eight (68) years and seven (7) months, with thirteen
(13) years and one (1) month of government service. Rabor responded to this advice by
exhibiting a "Certificate of Membership" 2 issued by the Government Service Insurance
System ("GSIS") and dated 12 May 1988. At the bottom of this "Certificate of
Membership" is a typewritten statement of the following tenor: "Service extended to
comply 15 years service reqts." This statement is followed by a non-legible initial with
the following date "2/28/91."
Thereupon, the Davao City Government, through Ms. Pagatpatan, wrote to the Regional
Director of the Civil Service Commission, Region XI, Davao City ("CSRO-XI"), informing
the latter of the foregoing and requesting advice "as to what action [should] be taken on
this matter."
In a letter dated 26 July 1991, Director Filemon B. Cawad of CSRO-XI advised Davao City
Mayor Rodrigo R. Duterte as follows:

Please be informed that the extension of services of Mr. Rabor is contrary to M.C. No.
65 of the Office of the President, the relevant portion of which is hereunder quoted:
Officials and employees who have reached the compulsory retirement age of 65 years
shall not be retained the service, except for extremely meritorious reasons in which case
the retention shall not exceed six (6) months.
IN VIEW WHEREFORE, please be advised that the services of Mr. Dominador [M.] Rabor
as Utility Worker in that office, is already non-extend[i]ble. 3
Accordingly, on 8 August l991, Mayor Duterte furnished a copy of the 26 July 1991 letter
of Director Cawad to Rabor and advised him "to stop reporting for work effective August
16, 1991." 4
Petitioner Rabor then sent to the Regional Director, CSRO-XI, a letter dated 14 August
1991, asking for extension of his services in the City Government until he "shall have
completed the fifteen (15) years service [requirement] in the Government so that [he]
could also avail of the benefits of the retirement laws given to employees of the
Government." The extension he was asking for was about two (2) years. Asserting that
he was "still in good health and very able to perform the duties and functions of [his]
position as Utility Worker," Rabor sought "extension of [his] service as an exception to
Memorandum Circular No. 65 of the Office of the President." 5 This request was denied
by Director Cawad on 15 August 1991.
Petitioner Rabor next wrote to the Office of the President on 29 January 1992 seeking
reconsideration of the decision of Director Cawad, CSRO-XI. The Office of the President
referred Mr. Rabor's letter to the Chairman of the Civil Service Commission on 5 March
1992.
In its Resolution No. 92-594, dated 28 April 1992, the Civil Service Commission dismissed
the appeal of Mr. Rabor and affirmed the action of Director Cawad embodied in the
latter's letter of 26 July 1991. This Resolution stated in part:
In his appeal, Rabor requested that he be allowed to continue rendering services as

Utility Worker in order to complete the fifteen (15) year service requirement under P.D.
1146.
CSC Memorandum Circular No. 27, s. 1990 provides, in part:

1. Any request for extension of service of compulsory retirees to complete the fifteen
years service requirement for retirement shall be allowed only to permanent appointees
in the career service who are regular members of the Government Service Insurance
System (GSIS) and shall be granted for a period of not exceeding one (1) year.
Considering that as early as October 18, 1988, Rabor was already due for retirement, his
request for further extension of service cannot be given due course. 6 (Emphasis in the
original)
On 28 October 1992, Mr. Rabor sought reconsideration of Resolution No. 92-594 of the
Civil Service Commission this time invoking the Decision of this Court in Cena v. Civil
Service Commission. 7 Petitioner also asked for reinstatement with back salaries and
benefits, having been separated from the government service effective 16 August 1991.
Rabor's motion for reconsideration was denied by the Commission.
Petitioner Rabor sent another letter dated 16 April 1993 to the Office of the Mayor,
Davao City, again requesting that he be allowed to continue rendering service to the
Davao City Government as Utility Worker in order to complete the fifteen (15) years
service requirement under P.D. No. 1146. This request was once more denied by Mayor
Duterte in a letter to petitioner dated 19 May 1993. In this letter, Mayor Duterte
pointed out that, underCena grant of the extension of service was discretionary on the
part of the City Mayor, but that he could not grant the extension requested. Mayor
Duterte's letter, in relevant part, read:
The matter was referred to the City Legal Office and the Chairman of the Civil Service
Commission, in the advent of the decision of the Supreme Court in the Cena vs. CSC, et
al. (G.R. No. 97419 dated July 3, 1992), for legal opinion. Both the City Legal Officer and
the Chairman of the Civil Service Commission are one in these opinion that extending
you an appointment in order that you may be able to complete the fifteen-year service
requirement is discretionary [on the part of] the City Mayor.
Much as we desire to extend you an appointment but circumstances are that we can no
longer do so.As you are already nearing your 70th birthday may no longer be able to
perform the duties attached to your position. Moreover, the position you had vacated
was already filled up.
We therefore regret to inform you that we cannot act favorably on your

request. 8 (Emphases supplied)

At this point, Mr. Rabor decided to come to this Court. He filed a Letter/Petition dated 6
July 1993 appealing from Civil Service Resolution No. 92-594 and from Mayor Duterte's
letter of 10 May 1993.
The Court required petitioner Rabor to comply with the formal requirements for
instituting a special civil action ofcertiorari to review the assailed Resolution of the Civil
Service Commission. In turn, the Commission was required to comment on petitioner's
Letter/Petition. 9 The Court subsequently noted petitioner's Letter of 13 September
1993 relating to compliance with the mentioned formal requirements and directed the
Clerk of Court to advise petitioner to engage the services of counsel or to ask for legal
assistance from the Public Attorney's Office (PAO). 10
The Civil Service Commission, through the Office of the Solicitor General, filed its
comment on 16 November 1993. The Court then resolved to give due course to the
Petition and required the parties to file memoranda. Both the Commission and Mr.
Rabor (the latter through PAO counsel) did so.
In this proceeding, petitioner Rabor contends that his claim falls squarely within the
ruling of this Court in Cena v. Civil Service Commission. 11
Upon the other hand, the Commission seeks to distinguish this case from Cena. The
Commission, through the Solicitor General, stressed that in Cena, this Court had ruled
that the employer agency, the Land Registration Authority of the Department of Justice,
was vested with discretion to grant to Cena the extension requested by him. The Land
Registration Authority had chosen not to exercise its discretion to grant or deny such
extension. In contrast, in the instant case, the Davao City Government did exercise its
discretion on the matter and decided to deny the extension sought by petitioner Rabor
for legitimate reasons.
While the Cena decision is barely three (3) years old, the Court considers that it must
reexamine the doctrine ofCena and the theoretical and policy underpinnings thereof. 12
We start by recalling the factual setting of Cena.
Gaudencio Cena was appointed Registrar of the Register of Deeds of Malabon,

Metropolitan Manila, on 16 July 1987. He reached the compulsory retirement age of
sixty-five (65) years on 22 January 1991. By the latter date, his government service
would have reached a total of eleven (11) years, nine (9) months and six (6) days. Before

reaching his 65th birthday, Cena requested the Secretary of Justice, through the
Administrator of the Land Registration Authority ("LRA") that he be allowed to extend
his service to complete the fifteen-year service requirement to enable him to retire with
the full benefit of an Old-Age Pension under Section 11 (b) of P.D. No. 1146. If Cena's
request were granted, he would complete fifteen (15) years of government service on
15 April 1994, at the age of sixty-eight (68) years.
The LRA Administrator sought a ruling from the Civil Service Commission on whether or
not Cena's request could be granted considering that Cena was covered by Civil Service
Memorandum No. 27, Series of 1990. On 17 October 1990, the Commission allowed
Cena a one (1) year extension of his service from 22 January 1991 to 22 January 1992
under its Memorandum Circular No. 27. Dissatisfied, Cena moved for reconsideration,
without success. He then came to this Court, claiming that he was entitled to an
extension of three (3) years, three (3) months and twenty-four (24) days to complete
the fifteen-year service requirement for retirement with full benefits under Section 11
(b) of P.D. No. 1146.
This Court granted Cena' s petition in its Decision of 3 July 1992. Speaking through Mr.
Justice Medialdea, the Court held that a government employee who has reached the
compulsory retirement age of sixty-five (65) years, but at the same time has not yet
completed fifteen (15) years of government service required under Section 11 (b) of P.D.
No. 1146 to qualify for the Old-Age Pension Benefit, may be granted an extension of his
government service for such period of time as may be necessary to "fill up" or comply
with the fifteen (15)-year service requirement. The Court also held that the authority to
grant the extension was a discretionary one vested in the head of the agency concerned.
Thus the Court concluded:
Accordingly, the Petition is GRANTED. The Land Registration Authority (LRA) and
Department of Justice has the discretion to allow petitioner Gaudencio Cena to extend
his 11 years, 9 months and 6 days of government to complete the fifteen-year service so
that he may retire with full benefits under Section 11, paragraph (b) of P.D.
1146. 13 (Emphases supplied)
The Court reached the above conclusion primarily on the basis of the "plain and
ordinary meaning" of Section 11 (b) of P.D. No. 1146. Section 11 may be quoted in its
entirety:

Sec. 11 Conditions for Old-Age Pension. — (a) Old-Age Pension shall be paid to a
member who
(1) has at least fifteen (15) years of service;
(2) is at least sixty (60) years of age; and
(3) is separated from the service.
(b) unless the service is extended by appropriate authorities, retirement shall be

compulsory for an employee at sixty-five-(65) years of age with at least fifteen (15) years
of service; Provided, that if he has less than fifteen (15) years of service, he shall he
allowed to continue in the service to completed the fifteen (15) years. (Emphases
supplied)
The Court went on to rely upon the canon of liberal construction which has often been
invoked in respect of retirement statutes:
Being remedial in character, a statute granting a pension or establishing [a] retirement

plan should be liberally construed and administered in favor of persons intended to be
benefitted thereby. The liberal approach aims to achieve the humanitarian purposes of
the law in order that efficiency, security and well-being of government employees may
be enhanced. 14 (Citations omitted)
While Section 11 (b) appeared cast in verbally unqualified terms, there were (and still
are) two (2) administrative issuances which prescribe limitations on the extension of
service that may be granted to an employee who has reached sixty-five (65) years of
age.
The first administrative issuance is Civil Service Commission Circular No. 27, Series of
1990, which should be quoted in its entirety:
TO : ALL HEADS OF DEPARTMENTS, BUREAUS AND AGENCIES OF THE NATIONAL/LOCAL

GOVERNMENTS INCLUDING GOVERNMENT- OWNED AND/OR CONTROLLED
CORPORATIONS WITH ORIGINAL CHARTERS.
SUBJECT : Extension of Service of Compulsory Retiree to Complete the Fifteen Years

Service Requirement for Retirement Purposes.

Pursuant to CSC Resolution No. 90-454 dated May 21, 1990, the Civil Service
Commission hereby adopts and promulgates the following policies and guidelines in the
extension of services of compulsory retirees to complete the fifteen years service
requirement for retirement purposes:
1. Any request for the extension of service of compulsory retirees to complete the
fifteen (15) years service requirement for retirement shall be allowed only to permanent
appointees in the career service who are regular members of the Government Service
Insurance System (GSIS), and shall be granted for a period not exceeding one (1) year.
2. Any request for the extension of service of compulsory retiree to complete the fifteen
(15) years service requirement for retirement who entered the government service at
57 years of age or over upon prior grant of authority to appoint him or her, shall no
longer be granted.
3. Any request for the extension of service to complete the fifteen (15) years service
requirement of retirement shall be filled not later than three (3) years prior to the date
of compulsory retirement.
4. Any request for the extension of service of a compulsory retiree who meets the
minimum number of years of service for retirement purposes may be granted for six (6)
months only with no further extension.
This Memorandum Circular shall take effect immediately. (Emphases supplied)
The second administrative issuance — Memorandum Circular No. 65 of the Office of the
President, dated 14 June 1988 — provides:
xxx xxx xxx
WHEREAS, this Office has been. receiving requests for reinstatement and/or retention in
the service of employees who have reached the compulsory retirement age of 65 years,
despite the strict conditions provided for in Memorandum Circular No. 163, dated
March 5, 1968, as amended.
WHEREAS, the President has recently adopted a policy to adhere more strictly to the law
providing for compulsory retirement age of 65 years and, in extremely meritorious
cases, to limit the service beyond the age of 65 years to six (6) months only.

WHEREFORE, the pertinent provision of Memorandum Circular No. 163 or on the
retention in the service of officials or employees who have reached the compulsory
retirement age of 65 years, is hereby amended to read as follows:
Officials or employees who have reached the compulsory retirement age of 65

yearsshall not be retained in the service, except for extremely meritorious reasons in
which case the retention shall not exceed six (6) months.
All heads of departments, bureaus, offices and instrumentalities of the government

including government-owned or controlled corporations, are hereby enjoined to require
their respective offices to strictly comply with this circular.
This Circular shall take effect immediately.
By authority of the President
(Sgd.)
CATALINO MACARAIG, JR.

Executive Secretary
Manila, June 14, 1988. 15 (Emphasis supplied)
Medialdea, J. resolved the challenges posed by the above two (2) administrative
regulations by, firstly, considering as invalid Civil Service Memorandum No. 27 and,
secondly, by interpreting the Office of the President's Memorandum Circular No. 65
as inapplicable to the case of Gaudencio T. Cena.
We turn first to the Civil Service Commission's Memorandum Circular No. 27.
Medialdea, J. wrote:
The Civil Service Commission Memorandum Circular No. 27 being in the nature of an
administrative regulation, must be governed by the principle that administrative
regulations adopted under legislative authority by a particular department must be in
harmony with the provisions of the law, and should be for the sole purpose of carrying
into effect its general provisions (People v. Maceren, G.R. No. L-32166, October 18,
1977, 79 SCRA 450; Teoxon v. Members of the Board of Administrators, L-25619, June
30, 1970, 33 SCRA 585; Manuel v. General Auditing Office, L-28952, December 29, 1971,
42 SCRA 660; Deluao v. Casteel, L-21906, August 29, 1969, 29 SCRA 350). . . . . The rule
on limiting to one the year the extension of service of an employee who has reached the

compulsory retirement age of sixty-five (65) years, but has less than fifteen (15) years of
service under Civil Service Memorandum Circular No. 27, S. 1990, cannot likewise be
accorded validity because it has no relationship or connection with any provision of P.D.
1146 supposed to be carried into effect. The rule was an addition to or extension of the
law, not merely a mode of carrying it into effect. The Civil Service Commission has no
power to supply perceived omissions in P.D. 1146. 16 (Emphasis supplied)
It will be seen that Cena, in striking down Civil Service Commission Memorandum No.
27, took a very narrow view on the question of what subordinate rule-making by an
administrative agency is permissible and valid. That restrictive view must be contrasted
with this Court's earlier ruling in People v. Exconde, 17 where Mr. Justice J.B.L. Reyes
said:
It is well established in this jurisdiction that, while the making of laws is a non-delegable
activity that corresponds exclusively to Congress, nevertheless, the latter may
constitutionally delegate authority and promulgate rules and regulations to implement a
given legislation and effectuate its policies, for the reason that the legislature often finds
it impracticable (if not impossible) to anticipate and provide for the multifarious and
complex 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 with it, but conform to standards that the law
prescribes. 18(Emphasis supplied)
In Tablarin v. Gutierrez, 19 the Court, in sustaining the validity of a MECS Order which

established passing a uniform admission test called the National Medical Admission Test
(NMAT) as a prerequisite for eligibility for admission into medical schools in the
Philippines, said:
The standards set for subordinate legislation in the exercise of rule making authority by
an administrative agency like the Board of Medical Education are necessarily broad and
highly abstract. As explained by then Mr. Justice Fernando in Edu v. Ericta (35 SCRA 481
[1970]) —
The standards may be either expressed or implied. If the former, the non-delegation

objection is easily met. The Standard though does not have to be spelled out specifically.
It could be implied from the policy and purpose of the act considered as a whole. In the

Reflector Law, clearly the legislative objective is public safety. What is sought to be
attained in Calalang v. William is "safe transit upon the roads."
We believe and so hold that the necessary standards are set forth in Section 1 of the
1959 Medical Act: "the standardization and regulation of medical education" and in
Section 5 (a) and 7 of the same Act, the body of the statute itself, and that these
considered together are sufficient compliance with the requirements of the non-
delegation principle. 20 (Citations omitted; emphasis partly in the original and partly
supplied)
In Edu v. Ericta, 21 then Mr. Justice Fernando stressed the abstract and very general
nature of the standards which our Court has in prior case law upheld as sufficient for
purposes of compliance with the requirements for validity of subordinate or
administrative rule-making:
This Court has considered as sufficient standards, "public welfare," (Municipality of

Cardona v. Municipality of Binangonan, 36 Phil. 547 [1917]); "necessary in the interest
of law and order," (Rubi v. Provincial Board, 39 Phil. 660 [1919]); "public
interest," (People v. Rosenthal, 68 Phil. 328 [1939]); and "justice and equity and
substantial merits of the case," (International Hardwood v. Pangil Federation of Labor,
17 Phil. 602 [1940]). 22 (Emphasis supplied)
Clearly, therefore, Cena when it required a considerably higher degree of detail in the

statute to be implemented, went against prevailing doctrine. It seems clear that if the
governing or enabling statute is quite detailed and specific to begin with, there would be
very little need (or occasion) for implementing administrative regulations. It is, however,
precisely the inability of legislative bodies to anticipate all (or many) possible detailed
situations in respect of any relatively complex subject matter, that makes subordinate,
delegated rule-making by administrative agencies so important and unavoidable. All
that may be reasonably; demanded is a showing that the delegated legislation consisting
of administrative regulations are germane to the general purposes projected by the
governing or enabling statute. This is the test that is appropriately applied in respect of
Civil Service Memorandum Circular No. 27, Series of 1990, and to this test we now turn.
We consider that the enabling statute that should appropriately be examined is the
present Civil Service law — found in Book V, Title I, Subtitle A, of Executive Order No.
292 dated 25 July 1987, otherwise known as the Administrative Code of 1987 — and not

alone P.D. No. 1146, otherwise known as the "Revised Government Service Insurance
Act of 1977." For the matter of extension of service of retirees who have reached sixty-
five (65) years of age is an area that is covered by both statutes and not alone by Section
11 (b) of P.D. 1146. This is crystal clear from examination of many provisions of the
present civil service law.
Section 12 of the present Civil Service law set out in the 1987 Administrative Code
provides, in relevant part, as follows:
Sec. 12 Powers and Functions. — The [Civil Service] Commission shall have the following
powers and functions:
xxx xxx xxx
(2) Prescribe, amend and enforce rules and regulations for carrying into effect the
provisions of the Civil Service Law and other pertinent laws;
(3) Promulgate policies, standards and guidelines for the Civil Service and adopt plans

and programsto promote economical, efficient and effective personnel administration in
the government;
xxx xxx xxx
(10) Formulate, administer and evaluate programs relative to the development and

retention of aqualified and competent work force in the public service;
xxx xxx xxx
(14) Take appropriate action on all appointments and other personnel matters in the
Civil Serviceincluding extension of service beyond retirement age;
xxx xxx xxx
(17) Administer the retirement program for government officials and employees, and
accredit government services and evaluate qualifications for retirement;
xxx xxx xxx
(19) Perform all functions properly belonging to a central personnel agency and such

other functions as may be provided by law. (Emphasis supplied)

It was on the bases of the above quoted provisions of the 1987 Administrative Code that
the Civil Service Commission promulgated its Memorandum Circular No. 27. In doing so,
the Commission was acting as "the central personnel agency of the government
empowered to promulgate policies, standards and guidelines for efficient, responsive
and effective personnel administration in the government." 23 It was also discharging its
function of "administering the retirement program for government officials and
employees" and of "evaluat[ing] qualifications for retirement."
In addition, the Civil Service Commission is charged by the 1987 Administrative Code
with providing leadership and assistance "in the development and retention of qualified
and efficient work force in the Civil Service" (Section 16 [10]) and with the "enforcement
of the constitutional and statutory provisions, relative to retirement and the regulation
for the effective implementation of the retirement of government officials and
employees" (Section 16 [14]).
We find it very difficult to suppose that the limitation of permissible extensions of

service after an employee has reached sixty-five (65) years of age has no reasonable
relationship or is not germane to the foregoing provisions of the present Civil Service
Law. The physiological and psychological processes associated with ageing in human
beings are in fact related to the efficiency and quality of the service that may be
expected from individual persons. The policy considerations which guided the Civil
Service Commission in limiting the maximum extension of service allowable for
compulsory retirees, were summarized by Griño-Aquino, J. in her dissenting opinion
in Cena:
Worth pondering also are the points raised by the Civil Service Commission that
extending the service of compulsory retirees for longer than one (1) year would: (1) give
a premium to late-comersin the government service and in effect discriminate against
those who enter the service at a younger age; (2) delay the promotion of the latter and
of next-in-rank employees; and (3) prejudice the chances for employment of qualified
young civil service applicants who have already passed the various government
examination but must wait for jobs to be vacated by "extendees" who have long passed
the mandatory retirement age but are enjoying extension of their government service to
complete 15 years so they may qualify for old-age pension. 24 (Emphasis supplied).
Cena laid heavy stress on the interest of retirees or would be retirees, something that is,
in itself, quite appropriate. At the same time, however, we are bound to note that there

should be countervailing stress on the interests of the employer agency and of other
government employees as a whole. The results flowing from the striking down of the
limitation established in Civil Service Memorandum Circular No. 27 may well be "absurd
and inequitable," as suggested by Mme. Justice Griño-Aquino in her dissenting opinion.
An employee who has rendered only three (3) years of government service at age sixty-
five (65) can have his service extended for twelve (12) years and finally retire at the age
of seventy-seven (77). This reduces the significance of the general principle of
compulsory retirement at age sixty-five (65) very close to the vanishing point.
The very real difficulties posed by the Cena doctrine for rational personnel

administration and management in the Civil Service, are aggravated when Cena is
considered together with the case of Toledo v. Civil Service
Commission. 25 Toledo involved the provisions of Rule III, Section 22, of the Civil Service
Rules on Personnel Action and Policies (CSRPAP) which prohibited the appointment of
persons fifty-seven (57) years old or above in government service without prior approval
of the Civil Service Commission. Civil Service Memorandum Circular No. 5, Series of 1983
provided that a person fifty-seven (57) years of age may be appointed to the Civil
Service provided that the exigencies of the government service so required and
provided that the appointee possesses special qualifications not possessed by other
officers or employees in the Civil Service and that the vacancy cannot be filled by
promotion of qualified officers or employees of the Civil Service. Petitioner Toledo was
appointed Manager of the Education and Information Division of the Commission on
Elections when he was almost fifty-nine (59) years old. No authority for such
appointment had been obtained either from the President of the Philippines or from the
Civil Service Commission and the Commission found that the other conditions laid down
in Section 22 of Rule III, CSRPAP, did not exist. The Court nevertheless struck down
Section 22, Rule III on the same exceedingly restrictive view of permissible
administrative legislation that Cena relied on. 26
When one combines the doctrine of Toledo with the ruling in Cena, very strange results
follow. Under these combined doctrines, a person sixty-four (64) years of age may be
appointed to the government service and one (1) year later may demand extension of
his service for the next fourteen (14) years; he would retire at age seventy-nine (79).
The net effect is thus that the general statutory policy of compulsory retirement at sixty-
five (65) years is heavily eroded and effectively becomes unenforceable. That general
statutory policy may be seen to embody the notion that there should be a certain

minimum turn-over in the government service and that opportunities for government
service should be distributed as broadly as possible, specially to younger people,
considering that the bulk of our population is below thirty (30) years of age. That same
general policy also reflects the life expectancy of our people which is still significantly
lower than the life expectancy of, e.g., people in Northern and Western Europe, North
America and Japan.
Our conclusion is that the doctrine of Cena should be and is hereby modified to this
extent: that Civil Service Memorandum Circular No. 27, Series of 1990, more specifically
paragraph (1) thereof, is hereby declared valid and effective. Section 11 (b) of P.D. No.
1146 must, accordingly, be read together with Memorandum Circular No. 27. We
reiterate, however, the holding in Cena that the head of the government agency
concerned is vested with discretionary authority to allow or disallow extension of the
service of an official or employee who has reached sixty-five (65) years of age without
completing fifteen (15) years of government service; this discretion is, nevertheless, to
be exercised conformably with the provisions of Civil Service Memorandum Circular No.
27, Series of 1990.
We do not believe it necessary to deal specifically with Memorandum Circular No. 65 of

the Office of the President dated 14 June 1988. It will be noted from the text
quoted supra (pp. 11-12) that the text itself of Memorandum Circular No. 65 (and for
that matter, that of Memorandum Circular No. 163, also of the Office of the President,
dated 5 March 1968) 27 does not purport to apply only to officers or employees who
have reached the age of sixty-five (65) years and who have at least fifteen (l5) years of
government service. We noted earlier that Cena interpreted Memorandum Circular No.
65 as referring only to officers and employees who have both reached the compulsory
retirement age of sixty-five (65) and completed the fifteen (15) years of government
service. Cena so interpreted this Memorandum Circular precisely because Cena had
reached the conclusion that employees who have reached sixty-five (65) years of age,
but who have less than fifteen (15) years of government service, may be allowed such
extension of service as may be needed to complete fifteen (15) years of service. In other
words, Cena read Memorandum Circular No. 65 in such a way as to comfort
with Cena's own conclusion reached without regard to that Memorandum Circular. In
view of the conclusion that we today reached in the instant case, this last ruling
of Cena is properly regarded as merely orbiter.

We also do not believe it necessary to determine whether Civil Service Memorandum
Circular No. 27 is fully compatible with Office of the President's Memorandum Circular
No. 65; this question must be reserved for detailed analysis in some future justiciable
case.
Applying now the results of our reexamination of Cena to the instant case, we believe
and so hold that Civil Service Resolution No. 92-594 dated 28 April 1992 dismissing the
appeal of petitioner Rabor and affirming the action of CSRO-XI Director Cawad dated 26
July 1991, must be upheld and affirmed.
ACCORDINGLY, for all the foregoing, the Petition for Certiorari is hereby DISMISSED for
lack of merit. No pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza and Francisco, JJ., concur.
Quiason, J., is on leave.
DIGEST
8. RABOR V. CSC (1995)
"It is well established in this jurisdiction that, while the making of laws is a non-
delegable activity that corresponds exclusively to Congress, nevertheless, the latter may
constitutionally delegate authority and promulgate rules and regulations to implement a
given legislation and effectuate its policies, for the reason that the legislature often finds
it impracticable (if not impossible) to anticipate and provide for the multifarious and
complex 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 with it, but conform to the standards that the law
prescribes."[18] (Italics supplied)
The Civil Service Commission Memorandum Circular No. 27 being in the nature of an

administrative regulation, must be governed by the principle that administrative
regulations adopted under legislative authority by a particular department must be in
harmony with the provisions of the law, and should be for the sole purpose of carrying

into effect its general provisions (People v. Maceren, G.R. No. L-32166, October 18,
1977, 79 SCRA 450; Teoxon v. Members of the Board of Administrators, L-25619, June
30, 1970, 33 SCRA 585; Manuel v. General Auditing Office, L-28952, December 29, 1971,
42 SCRA 660; Deluao v. Casteel, L-21906, August 29, 1969, 29 SCRA 350). x x x. The rule
on limiting to one year the extension of service of an employee who has reached the
compulsory retirement age of sixty-five (65) years, but has less than fifteen (15) years
of service under Civil Service Memorandum Circular No. 27, S. 1990, cannot likewise be
accorded validity because it has no relationship or connection with any provision of P.D.
1146 supposed to be carried into effect. The rule was an addition to or extension of the
law, not merely a mode of carrying it into effect. The Civil Service Commission has no
power to supply perceived omissions in P.D. 1146."[16]
The Facts:
Sometime in May 1991,[1] Alma D. Pagatpatan, an official in the Office of the Mayor of

Davao City, advised Dionisio M. Rabor to apply for retirement, considering that he had
already reached the age of sixty-eight (68) years and seven (7) months, with thirteen
(13) years and one (1) month of government service. Rabor responded to this advice by
exhibiting a "Certificate of Membership"[2] issued by the Government Service Insurance
System ("GSIS") and dated 12 May 1988. At the bottom of this "Certificate of
Membership" is a typewritten statement of the following tenor: "Service extended to
comply 15 years service reqts." This statement is followed by a non-legible initial with
the following date "2/28/91."
In a letter dated 26 July 1991, Director Filemon B. Cawad of CSRO-XI advised

Davao City. Mayor Rodrigo R. Duterte as follows:
"Please be informed that the extension of services of Mr. Rabor is contrary to
M.C. No. 65 of the Office of the President, the relevant portion of which is
hereunder quoted:
'Officials and employees who have reached the compulsory retirement age of 65
years shall not be retained in the service, except for extremely meritorious
reasons in which case the retention shall not exceed six (6) months.'

IN VIEW WHEREFORE, please be advised that the services of Mr. Dominador [M.]
Rabor as Utility Worker in that office, is already non- extend[i]ble."[3]
Accordingly, on 8 August 1991, Mayor Duterte furnished a copy of the 26 July
1991 letter of Director Cawad to Rabor and advised him "to stop reporting
for work effective August 16, 1991."[4]
Decision:
We find it very difficult to suppose that the limitation of permissible extensions

of service after an employee has reached sixty-five (65) years of age has no reasonable
relationship or is not germane to the foregoing provisions of the
present Civil Service Law.
"Worth pondering also are the points raised by the Civil Service Commission that

extending the service of compulsory retirees for longer than one (1) year would: (1) give
apremium to late-comers in the government service and in effect discriminate against
those who enter the service at a younger age; (2) delay the promotion of the latter and
of next-in-rank employees; and (3) prejudice the chances for employment of qualified
young civil service applicants who have already passed the various government
examinations but must wait for jobs to be vacated by 'extendees' who have long passed
the mandatory retirement age but are enjoying extension of their government service to
complete 15 years so they may qualify for old-age pension."[24] (Italics supplied
Applying now the results of our reexamination of the instant case, we believe and so
hold that Civil Service Resolution No. 92-594 dated 28 April 1992 dismissing the appeal
of petitioner Rabor and affirming the action of CSRO-XI Director Cawad dated 26 July
1991, must be upheld and affirmed.
ACCORDINGLY, for all the foregoing, the Petition for Certiorari is hereby DISMISSED for
lack of merit. No pronouncement as to costs.
SO ORDERED.

EN BANC
RE: ENTITLEMENT TO HAZARD PAY A.M. No. 03-9-02-SC
OF SC MEDICAL AND DENTAL
CLINIC PERSONNEL,
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO DE CASTRO, and
BRION, JJ.

Promulgated:
November 27, 2008
x--------------------------------------------------------------------------- x
R E S O L U T I ON
TINGA, J.:
This administrative matter pertains to the latest of the spate of requests of some of the
members of the Supreme Court Medical and Dental Services (SCMDS) Division in
relation to the grant of hazard allowance.
In the Courts Resolution[1] of 9 September 2003, the SCMDS personnel were declared
entitled to hazard pay according to the provisions of Republic Act (R.A.) No. 7305,
[2] otherwise known as The Magna Carta of Public Health Workers. The resolution
paved the way for the issuance of Administrative Circular No. 57-2004[3] which
prescribed the guidelines for the grant of hazard allowance in favor of the SCMDS
personnel. Now, eleven members of the same office: namely, Ramon S. Armedilla,
Celeste P. Vista, Consuelo M. Bernal, Remedios L. Patricio, Madonna Catherine G.
Dimaisip, Elmer A. Ruez, Marybeth V. Jurado, Mary Ann D. Barrientos, Angel S. Ambata,
Nora T. Juat and Geslaine C. Juanquestion the wisdom behind the allocation of hazard
pay to the SCMDS personnel at large in the manner provided in the said circular.

Administrative Circular No. 57-2004 (the subject Circular) initially classified SCMDS
employees according to the level of exposure to health hazards, as follows: (a)
physicians, dentists, nurses, medical technologists, nursing and dental aides, and
physical therapists who render direct, actual and frequent medical services in the form
of consultation, examination, treatment and ancillary care, were said to be subject to
high-risk exposure; and (b) psychologists, pharmacists, optometrists, clerks, data
encoders, utility workers, ambulance drivers, and administrative and technical support
personnel, to low-risk exposure.[4] Accordingly, employees exposed to high-risk hazards
belonging to Salary Grade 19 and below, and those belonging to Salary Grade 20 and
above, were respectively given 27% and 7% of their basic monthly salaries as hazard
allowances; whereas employees open to low-risk hazards belonging to Salary Grade 20
and above, and Salary Grade 19 and below, were respectively given 5% and 25% of their
basic monthly salaries as hazard allowances.[5] This classification, however, was
abolished when the Department of Health (DOH)after reviewing the corresponding job
descriptions of the members of the SCMDS personnel and the nature of their exposure
to hazardsdirected that they should all be entitled to a uniform hazard pay rate without
regard for the nature of the risks and hazards to which they are exposed.[6] The dual
25% and 5% hazard allowance rates for all the members of the SCMDS personnel were
retained.
In their Letter[7] dated 21 January 2005 addressed to then Chief Justice Hilario Davide,
Jr., eleven of the SCMDS personnel concernedwho claim to be doctors with salary
grades higher than 19[8] and who allegedly render front-line and hands-on services but
receive less hazard allowance allocations than do those personnel who do not directly
deliver patient carelamented that the classification and the rates of hazard allowance
implemented by the subject Circular seemed to favor only those belonging to Salary
Grade 19 and below, contrary to the very purpose of the grant which is to compensate
health workers according to the degree of exposure to hazards regardless of rank or
status. They believe that the grant must be based
not on the salary grade but rather on the degree of hazard to which they are actually
exposed; thus, they asked for a reexamination of the subject Circular.[9]

However, even before the request could be acted upon by the Court, Secretary
Francisco Duque III issued Administrative Order (A.O.) No. 2006-0011[10] on 16 May
2006. The administrative order prescribes amended guidelines in the payment of hazard
pay applicable to all public health workers regardless of the nature of their
appointment. It essentially establishes a 25% hazard pay rate for health workers with
salary grade 19 and below but fixed the hazard allowance of those occupying positions
belonging to Salary Grade 20 and above to P4,989.75 without further increases.[11] In
view of this development, some of the SCMDS personnel concerned,[12] in another
Letter dated 19 December 2007 and addressed to Chief Justice Reynato S. Puno,
suggesting that the subject Circular be amended to conform to A.O. No. 2006-0011, and
that they accordingly be paid hazard pay differentials accruing by virtue thereof.[13]
SCMDS Senior Chief Staff Officer Dr. Prudencio Banzon, Jr. indorsed the letter to Deputy
Clerk of Court and Chief Administrative Officer Atty. Eden Candelaria (Atty. Candelaria).
[14] On 15 January 2008, Atty. Candelaria issued a Memorandum[15] finding merit in
the request to amend the subject Circular because A.O. No. 2006-0011 suggests more
equitable guidelines on the allocation of hazard allowances among health workers in the
government.[16] Accordingly, she recommended that: (a) the classification as to
whether employees are exposed to high or low-risk hazard, as found in the Circular, be
abolished and instead replaced by the fixed rates provided in A.O. No. 2006-0011; and
that (b) the payment of the adjusted hazard allowance be charged against the regular
savings of the Court.[17]
In its Resolution[18] dated 22 January 2008, the Court referred Atty. Candelarias

memorandum to the Fiscal Management and Budget Office (FMBO) and to the Office of
the Chief Attorney (OCAT) for comment.
The OCAT posits that the subject Circular may not be amended in accordance with A.O.
No. 2006-0011 and in the manner the personnel concerned desire because, first, the
mechanics of payment established by the administrative order is of doubtful validity;
and second, the said administrative order has not been duly published and hence not
binding on the Court.[19] It also points out that the administrative order does not

conform to Section 21 of R.A. No. 7305 in which the rates of hazard pay are clearly
based on salary grade.[20]
The FMBO advances a contrary position. It maintains that the subject Circular may be
amended according to the terms of A.O. No. 2006-0011 inasmuch as the latter could put
to rest the objection of the personnel concerned to the allegedly unreasonable and
unfair allocation of hazard pay. Additionally, it recommends that once the amendment
is made, the hazard allowances due the SCMDS personnel be charged against the
savings from the regular appropriations of the Court.[21]
This Court has to deny the request because the subject Circular cannot be amended
according to the mechanism of hazard pay allocation under AO No. 2006-0011 without
denigrating established administrative law principles.
Essentially, hazard pay is the premium granted by law to health workers who, by the
nature of their work, are constantly exposed to various risks to health and safety.
[22]Section 21 of R.A. No. 7305 provides:
SEC. 21. Hazard Allowance.Public health workers in hospitals, sanitaria, rural health

units, main health centers, health infirmaries, barangay health stations, clinics and other
health-related establishments located in difficult areas, strife-torn or embattled areas,
distressed or isolated stations, prison camps, mental hospitals, radiation-exposed clinics,
laboratories or disease-infested areas or in areas declared under state of calamity or
emergency for the duration thereof which expose them to great danger, contagion,
radiation, volcanic activity/eruption, occupational risks or perils to life as determined by
the Secretary of Health or the Head of the unit with the approval of the Secretary of
Health, shall be compensated hazard allowances equivalent to at least twenty-five
percent (25%) of the monthly basic salary of health workers receiving salary grade 19
and below, and five percent (5%) for health workers with salary grade 20 and above.

The implementing rules of R.A. No. 7305 likewise stipulate the same rates of hazard
pay. Rule 7.1.5 thereof states:
7.1.5 Rates of Hazard Pay
a. Public health workers shall be compensated hazard allowances equivalent to at least

twenty-five percent (25%) of the monthly basic salary of health workers receiving salary
grade 19 and below, and five percent (5%) for health workers with salary grade 20 and
above. This may be granted on a monthly, quarterly or annual basis. x x x
In a language too plain to be mistaken, R.A. No. 7305 and its implementing rules
mandate that the allocation and distribution of hazard allowances to public health
workers within each of the two salary grade brackets at the respective rates of 25% and
5% be based on the salary grade to which the covered employees belong. These same
rates have in fact been incorporated into the subject Circular to apply to all SCMDS
personnel. The computation of the hazard allowance due should, in turn, be based on
the corresponding basic salary attached to the position of the employee concerned.
To be sure, the law and the implementing rules obviously prescribe the minimum rates
of hazard pay due all health workers in the government, as in fact this is evident in the
self-explanatory phrase at least used in both the law and the rules. No compelling
argument may thus be offered against the competence of the DOH to prescribe, by rules
or orders, higher rates of hazard allowance, provided that the same fall within the limits
of the law. As the lead agency in the implementation of the provisions of R.A. No. 7305,
it has in fact been invested with such power by Section 35.[23] Be that as it may, the
question that arises is whether that power is broad enough to vest the DOH with
authority to fix an exact amount of hazard pay accruing to public health workers with
Salary Grade 20 and above, deviating from the 5% monthly salary benchmark prescribed
by both the law and its implementing rules.

The DOH possesses no such power.
Fundamental is the precept in administrative law that the rule-making power delegated
to an administrative agency is limited and defined by the statute conferring the
power. For this reason, valid objections to the exercise of this power lie where it
conflicts with the authority granted by the legislature.[24]
A mere fleeting glance at A.O. No. 2006-0011 readily reveals that the DOH, in issuing the
said administrative order, has exceeded its limited power of implementing the
provisions of R.A. No. 7305. It undoubtedly sought to modify the rates of hazard pay and
the mechanism for its allocation under both the law and the implementing rules by
prescribing a uniform ratelet alone a fixed and exact amountof hazard allowance for
government health workers occupying positions with salary grade 20 and above. The
effect of this measure can hardly be downplayed especially in view of the unmistakable
import of the law to establish a scalar allocation of hazard allowances among public
health workers within each of the two salary grade brackets.
Section 19[25] of R.A. No. 7305 recognizes, for its own purposes, the applicability of the
provisions of R.A. No. 6758[26] (The Salary Standardization Act of 1989) in the
determination of the salary scale of all covered public health workers. Telling is this
reference to the scalar schedule of salaries when viewed in light of the fact that
factoring in the salaries of individual employees and the applicable uniform rate of
hazard allowance would yield different results which, when charted against each other,
would also bear the scalar schedule intended by the law.

The object, in other words, of both the law and its implementing rules in providing a
uniform rate for each of the two groups of public health workers is to establish a scalar
allocation of the cash equivalents of the hazard allowance within each of the two
groups. A scalar schedule of hazard pay allocation within the Salary Grade 20 and higher
bracket can indeed be achieved only by multiplying the basic monthly salary of the
covered employees by a constant factor that is 25% as the fixed legal rate. Even without
an express reference to the scalar schedule of salaries under R.A. No. 6758, it can
nevertheless be inferred that R.A. No. 7305, by mandating a fixed rate of hazard
allowance for each of the two groups of health workers, intends to achieve the same
effect.
Hence, it can only be surmised that the issuance of AO No. 2006-0011 is an attempt to
amend the rates of hazard allowance and the mechanism for its allocation as provided
for in R.A. No. 7305 and the implementing rules because it has the effect of obliterating
the intended discrepancy in the cash equivalents of the hazard allowance for employees
falling within the bracket of Salary Grade 20 and above. Without unnecessarily
belaboring this point, the Court finds that the administrative order violates the
established principle that administrative issuances cannot amend an act of Congress.
[27] It is void on its face, but only insofar as it prescribes a predetermined exact amount
in cash of the hazard allowance for public health workers with Salary Grade 20 and
above.
Indeed, when an administrative agency enters into the exercise of the specific power of
implementing a statute, it is bound by what is provided for in the same legislative
enactment[28] inasmuch as its rule-making power is a delegated legislative power which
may not be used either to abridge the authority given by the Congress or the
Constitution or to enlarge the power beyond the scope intended.[29] The power may
not be validly extended by implication beyond what may be necessary for its just and
reasonable execution.[30] In other words, the function of promulgating rules and
regulations may be legitimately exercised only for the purpose of carrying out the
provisions of a law, inasmuch as the power is confined to implementing the law or
putting it into effect.[31] Therefore, such rules and regulations must not be inconsistent
with the provisions of existing laws, particularly the statute being administered and
implemented by the agency concerned,[32] that is to say, the statute to which the
issuance relates. Constitutional and statutory provisions control with respect to what
rules and regulations may be promulgated by such a body, as well as with respect to
what fields are subject to regulation by it.[33]
It must be stressed that the DOH issued the rules and regulations implementing the
provisions of R.A. 7305 pursuant to the authority expressly delegated by
Congress.Hence, the DOH, as the delegate administrative agency, cannot contravene
the law from which its rule-making authority has emanated. As the clich goes, the spring
cannot rise higher than its source.[34] In this regard, Fisher observes:
x x x The often conflicting and ambiguous passages within a law must be interpreted by
executive officials to construct the purpose and intent of Congress. As important as
intent is the extent to which a law is carried out. President Taft once remarked, Let
anyone make the laws of the country, if I can construe them.
To carry out the laws, administrators issue rules and regulations of their own. The
courts long ago appreciated this need. Rules and regulations must be received as the
acts of the executive, and as such, be binding upon all within the sphere of his legal and
constitutional authority. Current law authorizes the head of an executive department or
military department to prescribe regulations for the government of his department, the
conduct of its employees, the distribution and performance of its business, and the
custody, use, and preservation of its records, papers, and property.

These duties, primarily of a housekeeping nature, relate only distantly to the
citizenry. Many regulations, however, bear directly on the public. It is here that
administrative legislation must be restricted in its scope and application. Regulations
are not supposed to be a substitute for the general policymaking that Congress enacts in
the form of a public law. Although administrative regulations are entitled to respect, the
authority to prescribe rules and regulations is not an independent source of power to
make laws. Agency rulemaking must rest on authority granted directly or indirectly by
Congress.[35] (Emphasis supplied)

Moreover, although an administrative agency is authorized to exercise its discretion in

the exercise of its power of subordinate legislation, nevertheless, no similar authority
exists to validate an arbitrary or capricious enactment of rules and regulations.
[36] Rules which have the effect of extending or conflicting with the authority-granting
statute do not represent a valid exercise of rule-making power but constitute an
attempt by the agency to legislate.[37] In such a situation, it is said that the issuance
becomes void not only for being ultra vires but also for being unreasonable.[38] The law
therefore prevails over the administrative issuance.[39]

The Court takes notice of the fact that the enactment of R.A. No. 7305 has touched off,
within the public health service sector, a surge of negative sentiments regarding the
alleged inequitableness and unfairness of the lawparticularly the provisions thereof
relating to the allocation of hazard allowances. Certainly, the DOH can be reasonably
expected to respond to the well-meaning clamor of the public health workers; but while
indeed the DOH is entitled to a certain amount of hegemony over the statutes which it
is tasked to administer, it nevertheless may not go far beyond the letter of the law even
if it does perceive that it is acting in the furtherance of the spirit of the law.[40]
A final note. Just as the power of the DOH to issue rules and regulations is confined to
the clear letter of the law, the Courts hands are likewise tied to interpreting and
applying the law. In other words, the Court cannot infuse vitality, let alone a semblance
of validity, to an issuance which on its face is inconsistent with the law and therefore
void, by adopting its terms and in effect implementing the samelest we otherwise
validate an undue exercise by the DOH of its delegated and limited power of
implementation. Suffice it to say that questions relative to the seeming unfairness and
inequitableness of the law are matters that lie well within the legitimate powers of
Congress and are well beyond the competence of the Court to address.

In light of the foregoing, there appears to be no more necessity to discuss the issue of
the non-publication of A.O. No. 2006-0011.

WHEREFORE, the request of the Supreme Court Medical and Dental Services Division to
amend Administrative Circular (A.C.) No. 57-2004 according to the provisions of
Department of Health Administrative Order No. 2006-0011 is DENIED. The Court
DIRECTS that the payment of hazard allowance in favor of the personnel concerned be
made in accordance with A.C. No. 57-2004.
SO ORDERED.
Digest
Re: Entitlement to Hazard Pay of SC Medical and Dental Clinic Personnel
AM No. 03-09-02-56November 27, 2008572 SCRA 1
Facts:
The SC medical and dental services division was entitled through hazard pay through RA
7305 also known as the Magna Carta for Public Workers. This paved the way for the
issuance Of Administration Circular no. 57
–
2004 which prescribed the guidelines of thegrant of hazard allowance in favor of the
SCMDS personnel. The circular initially classified SCMDS employees according to levels
of exposure to health hazards and not on salary grades alone. But DOH abolished the
classification and declared that a uniform hazardpay rate should be given without
regard for the nature of the risks and hazards to which they are exposed. Thus, SMBS
personnelrequested that the hazard pay must be granted.
Issue:
Does the DBM have authority to review Supreme Court issuances relative to court
personnel on matters of compensation?
Ruling:

The role of the DBM is ―supervisorial in nature.‖ Its
man duty is to ascertain that the proposed compensation, benefits, and other incentives

to be given to officials and employees adhere to the policies and guidelines issued in
accordance with applicable laws. Thus,its authority to review SC issuances is relative to
the court personnel on matters of compensation is very limited, circumscribed as it isby
the constitution. Fiscal autonomy makes freedom from outside controls pursuant to
Article VIII, Section 3.The court in its ruling hasto deny the request because the subject
circular cannot be amended according to the mechanism of hazard pay allocation under
AO2006
–
0011

SUPREME COURT
Manila
EN BANC
G.R. No. 166715 August 14, 2008
ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S.

ALCANTARA, ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN
R. SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L.
PARAYNO, JR., in his capacity as Commissioner of the Bureau of Internal Revenue, and
HON. ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of
Customs, respondents.
DECISION
CORONA, J.:
This petition for prohibition1 seeks to prevent respondents from implementing and

enforcing Republic Act (RA) 93352 (Attrition Act of 2005).
RA 9335 was enacted to optimize the revenue-generation capability and collection of

the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends
to encourage BIR and BOC officials and employees to exceed their revenue targets by
providing a system of rewards and sanctions through the creation of a Rewards and
Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board).3 It covers
all officials and employees of the BIR and the BOC with at least six months of service,
regardless of employment status.4
The Fund is sourced from the collection of the BIR and the BOC in excess of their
revenue targets for the year, as determined by the Development Budget and
Coordinating Committee (DBCC). Any incentive or reward is taken from the fund and
allocated to the BIR and the BOC in proportion to their contribution in the excess
collection of the targeted amount of tax revenue.5

The Boards in the BIR and the BOC are composed of the Secretary of the Department of
Finance (DOF) or his/her Undersecretary, the Secretary of the Department of Budget
and Management (DBM) or his/her Undersecretary, the Director General of the National
Economic Development Authority (NEDA) or his/her Deputy Director General, the
Commissioners of the BIR and the BOC or their Deputy Commissioners, two
representatives from the rank-and-file employees and a representative from the officials
nominated by their recognized organization.6
Each Board has the duty to (1) prescribe the rules and guidelines for the allocation,
distribution and release of the Fund; (2) set criteria and procedures for removing from
the service officials and employees whose revenue collection falls short of the target; (3)
terminate personnel in accordance with the criteria adopted by the Board; (4) prescribe
a system for performance evaluation; (5) perform other functions, including the
issuance of rules and regulations and (6) submit an annual report to Congress.7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to
promulgate and issue the implementing rules and regulations of RA 9335,8 to be
approved by a Joint Congressional Oversight Committee created for such purpose.9
Petitioners, invoking their right as taxpayers filed this petition challenging the
constitutionality of RA 9335, a tax reform legislation. They contend that, by establishing
a system of rewards and incentives, the law "transform[s] the officials and employees of
the BIR and the BOC into mercenaries and bounty hunters" as they will do their best
only in consideration of such rewards. Thus, the system of rewards and incentives
invites corruption and undermines the constitutionally mandated duty of these officials
and employees to serve the people with utmost responsibility, integrity, loyalty and
efficiency.
Petitioners also claim that limiting the scope of the system of rewards and incentives
only to officials and employees of the BIR and the BOC violates the constitutional
guarantee of equal protection. There is no valid basis for classification or distinction as
to why such a system should not apply to officials and employees of all other
government agencies.
In addition, petitioners assert that the law unduly delegates the power to fix revenue
targets to the President as it lacks a sufficient standard on that matter. While Section
7(b) and (c) of RA 9335 provides that BIR and BOC officials may be dismissed from the

service if their revenue collections fall short of the target by at least 7.5%, the law does
not, however, fix the revenue targets to be achieved. Instead, the fixing of revenue
targets has been delegated to the President without sufficient standards. It will
therefore be easy for the President to fix an unrealistic and unattainable target in order
to dismiss BIR or BOC personnel.
Finally, petitioners assail the creation of a congressional oversight committee on the

ground that it violates the doctrine of separation of powers. While the legislative
function is deemed accomplished and completed upon the enactment and approval of
the law, the creation of the congressional oversight committee permits legislative
participation in the implementation and enforcement of the law.
In their comment, respondents, through the Office of the Solicitor General, question the
petition for being premature as there is no actual case or controversy yet. Petitioners
have not asserted any right or claim that will necessitate the exercise of this Court’s
jurisdiction. Nevertheless, respondents acknowledge that public policy requires the
resolution of the constitutional issues involved in this case. They assert that the
allegation that the reward system will breed mercenaries is mere speculation and does
not suffice to invalidate the law. Seen in conjunction with the declared objective of RA
9335, the law validly classifies the BIR and the BOC because the functions they perform
are distinct from those of the other government agencies and instrumentalities.
Moreover, the law provides a sufficient standard that will guide the executive in the
implementation of its provisions. Lastly, the creation of the congressional oversight
committee under the law enhances, rather than violates, separation of powers. It
ensures the fulfillment of the legislative policy and serves as a check to any over-
accumulation of power on the part of the executive and the implementing agencies.
After a careful consideration of the conflicting contentions of the parties, the Court finds
that petitioners have failed to overcome the presumption of constitutionality in favor of
RA 9335, except as shall hereafter be discussed.
Actual Case And Ripeness
An actual case or controversy involves a conflict of legal rights, an assertion of opposite

legal claims susceptible of judicial adjudication.10 A closely related requirement is
ripeness, that is, the question must be ripe for adjudication. And a constitutional
question is ripe for adjudication when the governmental act being challenged has a

direct adverse effect on the individual challenging it.11Thus, to be ripe for judicial
adjudication, the petitioner must show a personal stake in the outcome of the case or
an injury to himself that can be redressed by a favorable decision of the Court.12
In this case, aside from the general claim that the dispute has ripened into a judicial
controversy by the mere enactment of the law even without any further overt
act,13 petitioners fail either to assert any specific and concrete legal claim or to
demonstrate any direct adverse effect of the law on them. They are unable to show a
personal stake in the outcome of this case or an injury to themselves. On this account,
their petition is procedurally infirm.
This notwithstanding, public interest requires the resolution of the constitutional issues
raised by petitioners. The grave nature of their allegations tends to cast a cloud on the
presumption of constitutionality in favor of the law. And where an action of the
legislative branch is alleged to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute.14
Accountability of
Public Officers
Section 1, Article 11 of the Constitution states:
Sec. 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism, and justice, and lead modest lives.
Public office is a public trust. It must be discharged by its holder not for his own personal
gain but for the benefit of the public for whom he holds it in trust. By demanding
accountability and service with responsibility, integrity, loyalty, efficiency, patriotism
and justice, all government officials and employees have the duty to be responsive to
the needs of the people they are called upon to serve.
Public officers enjoy the presumption of regularity in the performance of their duties.
This presumption necessarily obtains in favor of BIR and BOC officials and employees. RA
9335 operates on the basis thereof and reinforces it by providing a system of rewards
and sanctions for the purpose of encouraging the officials and employees of the BIR and
the BOC to exceed their revenue targets and optimize their revenue-generation
capability and collection.15

The presumption is disputable but proof to the contrary is required to rebut it. It cannot
be overturned by mere conjecture or denied in advance (as petitioners would have the
Court do) specially in this case where it is an underlying principle to advance a declared
public policy.
Petitioners’ claim that the implementation of RA 9335 will turn BIR and BOC officials and
employees into "bounty hunters and mercenaries" is not only without any factual and
legal basis; it is also purely speculative.
A law enacted by Congress enjoys the strong presumption of constitutionality. To justify

its nullification, there must be a clear and unequivocal breach of the Constitution, not a
doubtful and equivocal one.16 To invalidate RA 9335 based on petitioners’ baseless
supposition is an affront to the wisdom not only of the legislature that passed it but also
of the executive which approved it.
Public service is its own reward. Nevertheless, public officers may by law be rewarded
for exemplary and exceptional performance. A system of incentives for exceeding the
set expectations of a public office is not anathema to the concept of public
accountability. In fact, it recognizes and reinforces dedication to duty, industry,
efficiency and loyalty to public service of deserving government personnel.
In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards
to officers of the customs as well as other parties an amount not exceeding one-half of
the net proceeds of forfeitures in violation of the laws against smuggling.
Citing Dorsheimer v. United States,18 the U.S. Supreme Court said:
The offer of a portion of such penalties to the collectors is to stimulate and reward their
zeal and industry in detecting fraudulent attempts to evade payment of duties and
taxes.
In the same vein, employees of the BIR and the BOC may by law be entitled to a reward
when, as a consequence of their zeal in the enforcement of tax and customs laws, they
exceed their revenue targets. In addition, RA 9335 establishes safeguards to ensure that
the reward will not be claimed if it will be either the fruit of "bounty hunting or
mercenary activity" or the product of the irregular performance of official duties. One of
these precautionary measures is embodied in Section 8 of the law:

SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. – The
officials, examiners, and employees of the [BIR] and the [BOC] who violate this Act or
who are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to
exercise extraordinary diligence in the performance of their duties shall be held liable
for any loss or injury suffered by any business establishment or taxpayer as a result of
such violation, negligence, abuse, malfeasance, misfeasance or failure to exercise
extraordinary diligence.
Equal Protection
Equality guaranteed under the equal protection clause is equality under the same
conditions and among persons similarly situated; it is equality among equals, not
similarity of treatment of persons who are classified based on substantial differences in
relation to the object to be accomplished.19When things or persons are different in fact
or circumstance, they may be treated in law differently. InVictoriano v. Elizalde Rope
Workers’ Union,20 this Court declared:
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 [S]tate. 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.
In the exercise of its power to make classifications for the purpose of enacting laws over
matters within its jurisdiction, the state is recognized as enjoying a wide range of
discretion. It is not necessary that the classification be based on scientific or marked
differences of things or in their relation. Neither is it necessary that the classification be
made with mathematical nicety. Hence, legislative classification may in many cases
properly rest on narrow distinctions, for the equal protection guaranty does not
preclude the legislature from recognizing degrees of evil or harm, and legislation is
addressed to evils as they may appear.21 (emphasis supplied)
The equal protection clause recognizes a valid classification, that is, a classification that
has a reasonable foundation or rational basis and not arbitrary.22 With respect to RA
9335, its expressed public policy is the optimization of the revenue-generation capability
and collection of the BIR and the BOC.23 Since the subject of the law is the revenue-
generation capability and collection of the BIR and the BOC, the incentives and/or
sanctions provided in the law should logically pertain to the said agencies. Moreover,
the law concerns only the BIR and the BOC because they have the common distinct
primary function of generating revenues for the national government through the
collection of taxes, customs duties, fees and charges.
The BIR performs the following functions:
Sec. 18. The Bureau of Internal Revenue. – The Bureau of Internal Revenue, which shall
be headed by and subject to the supervision and control of the Commissioner of
Internal Revenue, who shall be appointed by the President upon the recommendation
of the Secretary [of the DOF], shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for all revenues collected;
(2) Exercise duly delegated police powers for the proper performance of its functions
and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic activities;
(4) Exercise supervision and control over its constituent and subordinate units; and

(5) Perform such other functions as may be provided by law.24
xxx xxx xxx (emphasis supplied)
On the other hand, the BOC has the following functions:
Sec. 23. The Bureau of Customs. – The Bureau of Customs which shall be headed and
subject to the management and control of the Commissioner of Customs, who shall be
appointed by the President upon the recommendation of the Secretary[of the DOF] and
hereinafter referred to as Commissioner, shall have the following functions:
(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all
ports of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of vessels
and aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports under its
jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.25
Both the BIR and the BOC are bureaus under the DOF. They principally perform the
special function of being the instrumentalities through which the State exercises one of
its great inherent functions – taxation. Indubitably, such substantial distinction is
germane and intimately related to the purpose of the law. Hence, the classification and
treatment accorded to the BIR and the BOC under RA 9335 fully satisfy the demands of
equal protection.
Undue Delegation

Two tests determine the validity of delegation of legislative power: (1) the completeness
test and (2) the sufficient standard test. A law is complete when it sets forth therein the
policy to be executed, carried out or implemented by the delegate.26 It lays down a
sufficient standard when it provides adequate guidelines or limitations in the law to map
out the boundaries of the delegate’s authority and prevent the delegation from running
riot.27 To be sufficient, the standard must specify the limits of the delegate’s authority,
announce the legislative policy and identify the conditions under which it is to be
implemented.28
RA 9335 adequately states the policy and standards to guide the President in fixing
revenue targets and the implementing agencies in carrying out the provisions of the law.
Section 2 spells out the policy of the law:
SEC. 2. Declaration of Policy. – It is the policy of the State to optimize the revenue-
generation capability and collection of the Bureau of Internal Revenue (BIR) and the
Bureau of Customs (BOC) by providing for a system of rewards and sanctions through
the creation of a Rewards and Incentives Fund and a Revenue Performance Evaluation
Board in the above agencies for the purpose of encouraging their officials and
employees to exceed their revenue targets.
Section 4 "canalized within banks that keep it from overflowing"29 the delegated power
to the President to fix revenue targets:
SEC. 4. Rewards and Incentives Fund. – A Rewards and Incentives Fund, hereinafter
referred to as the Fund, is hereby created, to be sourced from the collection of the BIR
and the BOC in excess of their respective revenue targets of the year, as determined by
the Development Budget and Coordinating Committee (DBCC), in the following
percentages:
Excess of Collection of Percent (%) of the Excess

the Excess the Collection to Accrue to the
Revenue Targets Fund
30% or below – 15%
More than 30% – 15% of the first 30% plus 20%

of the remaining excess

The Fund shall be deemed automatically appropriated the year immediately following
the year when the revenue collection target was exceeded and shall be released on the
same fiscal year.
Revenue targets shall refer to the original estimated revenue collection expected of the
BIR and the BOC for a given fiscal year as stated in the Budget of Expenditures and
Sources of Financing (BESF) submitted by the President to Congress. The BIR and the
BOC shall submit to the DBCC the distribution of the agencies’ revenue targets as
allocated among its revenue districts in the case of the BIR, and the collection districts in
the case of the BOC.
Revenue targets are based on the original estimated revenue collection expected
respectively of the BIR and the BOC for a given fiscal year as approved by the DBCC and
stated in the BESF submitted by the President to Congress.30 Thus, the determination of
revenue targets does not rest solely on the President as it also undergoes the scrutiny of
the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s authority and identifies
the conditions under which officials and employees whose revenue collection falls short
of the target by at least 7.5% may be removed from the service:
SEC. 7. Powers and Functions of the Board. – The Board in the agency shall have the
following powers and functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing from service officials and employees
whose revenue collection falls short of the target by at least seven and a half percent
(7.5%), with due consideration of all relevant factors affecting the level of collection as
provided in the rules and regulations promulgated under this Act, subject to civil service
laws, rules and regulations and compliance with substantive and procedural due
process: Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding two years
in operation, as has no historical record of collection performance that can be used as
basis for evaluation; and

2. Where the revenue or customs official or employee is a recent transferee in the
middle of the period under consideration unless the transfer was due to
nonperformance of revenue targets or potential nonperformance of revenue targets:
Provided, however, That when the district or area of responsibility covered by revenue
or customs officials or employees has suffered from economic difficulties brought about
by natural calamities orforce majeure or economic causes as may be determined by the
Board, termination shall be considered only after careful and proper review by the
Board.
(c) To terminate personnel in accordance with the criteria adopted in the preceding
paragraph: Provided, That such decision shall be immediately executory: Provided,
further, That the application of the criteria for the separation of an official or employee
from service under this Act shall be without prejudice to the application of other
relevant laws on accountability of public officers and employees, such as the Code of
Conduct and Ethical Standards of Public Officers and Employees and the Anti-Graft and
Corrupt Practices Act;
Clearly, RA 9335 in no way violates the security of tenure of officials and employees of
the BIR and the BOC. The guarantee of security of tenure only means that an employee
cannot be dismissed from the service for causes other than those provided by law and
only after due process is accorded the employee.31 In the case of RA 9335, it lays down
a reasonable yardstick for removal (when the revenue collection falls short of the target
by at least 7.5%) with due consideration of all relevant factors affecting the level of
collection. This standard is analogous to inefficiency and incompetence in the
performance of official duties, a ground for disciplinary action under civil service
laws.32 The action for removal is also subject to civil service laws, rules and regulations
and compliance with substantive and procedural due process.
At any rate, this Court has recognized the following as sufficient standards: "public
interest," "justice and equity," "public convenience and welfare" and "simplicity,
economy and welfare."33 In this case, the declared policy of optimization of the
revenue-generation capability and collection of the BIR and the BOC is infused with
public interest.
Separation Of Powers

Section 12 of RA 9335 provides:
SEC. 12. Joint Congressional Oversight Committee. – There is hereby created a Joint

Congressional Oversight Committee composed of seven Members from the Senate and
seven Members from the House of Representatives. The Members from the Senate shall
be appointed by the Senate President, with at least two senators representing the
minority. The Members from the House of Representatives shall be appointed by the
Speaker with at least two members representing the minority. After the Oversight
Committee will have approved the implementing rules and regulations (IRR) it shall
thereafter become functus officio and therefore cease to exist.
The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of
approving the implementing rules and regulations (IRR) formulated by the DOF, DBM,
NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR. From then on, it
became functus officio and ceased to exist. Hence, the issue of its alleged encroachment
on the executive function of implementing and enforcing the law may be considered
moot and academic.
This notwithstanding, this might be as good a time as any for the Court to confront the
issue of the constitutionality of the Joint Congressional Oversight Committee created
under RA 9335 (or other similar laws for that matter).
The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of
congressional oversight in Macalintal v. Commission on Elections34 is illuminating:
Concept and bases of congressional oversight
Broadly defined, the power of oversight embraces all activities undertaken by Congress

to enhance its understanding of and influence over the implementation of legislation it
has enacted. Clearly, oversight concerns post-enactment measures undertaken by
Congress: (a) to monitor bureaucratic compliance with program objectives, (b) to
determine whether agencies are properly administered, (c) to eliminate executive waste
and dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to
assess executive conformity with the congressional perception of public interest.
The power of oversight has been held to be intrinsic in the grant of legislative power
itself and integral to the checks and balances inherent in a democratic system of
government. x x x x x x x x x

Over the years, Congress has invoked its oversight power with increased frequency to
check the perceived "exponential accumulation of power" by the executive branch. By
the beginning of the 20th century, Congress has delegated an enormous amount of
legislative authority to the executive branch and the administrative agencies. Congress,
thus, uses its oversight power to make sure that the administrative agencies perform
their functions within the authority delegated to them. x x x x x x x x x
Categories of congressional oversight functions
The acts done by Congress purportedly in the exercise of its oversight powers may be
divided into three categories, namely: scrutiny, investigation and supervision.
a. Scrutiny
Congressional scrutiny implies a lesser intensity and continuity of attention to

administrative operations. Its primary purpose is to determine economy and efficiency
of the operation of government activities. In the exercise of legislative scrutiny,
Congress may request information and report from the other branches of government.
It can give recommendations or pass resolutions for consideration of the agency
involved.
xxx xxx xxx
b. Congressional investigation
While congressional scrutiny is regarded as a passive process of looking at the facts that
are readily available, congressional investigation involves a more intense digging of
facts. The power of Congress to conduct investigation is recognized by the 1987
Constitution under section 21, Article VI, xxx xxx xxx
c. Legislative supervision
The third and most encompassing form by which Congress exercises its oversight power
is thru legislative supervision. "Supervision" connotes a continuing and informed
awareness on the part of a congressional committee regarding executive operations in a
given administrative area. While both congressional scrutiny and investigation involve
inquiry into past executive branch actions in order to influence future executive branch
performance, congressional supervision allows Congress to scrutinize the exercise of

delegated law-making authority, and permits Congress to retain part of that delegated
authority.
Congress exercises supervision over the executive agencies through its veto power. It
typically utilizes veto provisions when granting the President or an executive agency the
power to promulgate regulations with the force of law. These provisions require the
President or an agency to present the proposed regulations to Congress, which retains a
"right" to approve or disapprove any regulation before it takes effect. Such legislative
veto provisions usually provide that a proposed regulation will become a law after the
expiration of a certain period of time, only if Congress does not affirmatively disapprove
of the regulation in the meantime. Less frequently, the statute provides that a proposed
regulation will become law if Congress affirmatively approves it.
Supporters of legislative veto stress that it is necessary to maintain the balance of power

between the legislative and the executive branches of government as it offers
lawmakers a way to delegate vast power to the executive branch or to independent
agencies while retaining the option to cancel particular exercise of such power without
having to pass new legislation or to repeal existing law. They contend that this
arrangement promotes democratic accountability as it provides legislative check on the
activities of unelected administrative agencies. One proponent thus explains:
It is too late to debate the merits of this delegation policy: the policy is too deeply
embedded in our law and practice. It suffices to say that the complexities of modern
government have often led Congress-whether by actual or perceived necessity- to
legislate by declaring broad policy goals and general statutory standards, leaving the
choice of policy options to the discretion of an executive officer. Congress articulates
legislative aims, but leaves their implementation to the judgment of parties who may or
may not have participated in or agreed with the development of those aims.
Consequently, absent safeguards, in many instances the reverse of our constitutional
scheme could be effected: Congress proposes, the Executive disposes. One safeguard, of
course, is the legislative power to enact new legislation or to change existing law. But
without some means of overseeing post enactment activities of the executive branch,
Congress would be unable to determine whether its policies have been implemented in
accordance with legislative intent and thus whether legislative intervention is
appropriate.

Its opponents, however, criticize the legislative veto as undue encroachment upon the
executive prerogatives. They urge that any post-enactment measures undertaken by the
legislative branch should be limited to scrutiny and investigation; any measure beyond
that would undermine the separation of powers guaranteed by the Constitution. They
contend that legislative veto constitutes an impermissible evasion of the President’s
veto authority and intrusion into the powers vested in the executive or judicial branches
of government. Proponents counter that legislative veto enhances separation of powers
as it prevents the executive branch and independent agencies from accumulating too
much power. They submit that reporting requirements and congressional committee
investigations allow Congress to scrutinize only the exercise of delegated law-making
authority. They do not allow Congress to review executive proposals before they take
effect and they do not afford the opportunity for ongoing and binding expressions of
congressional intent. In contrast, legislative veto permits Congress to participate
prospectively in the approval or disapproval of "subordinate law" or those enacted by
the executive branch pursuant to a delegation of authority by Congress. They further
argue that legislative veto "is a necessary response by Congress to the accretion of
policy control by forces outside its chambers." In an era of delegated authority, they
point out that legislative veto "is the most efficient means Congress has yet devised to
retain control over the evolution and implementation of its policy as declared by
statute."
In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved

the validity of legislative veto provisions. The case arose from the order of the
immigration judge suspending the deportation of Chadha pursuant to § 244(c)(1) of the
Immigration and Nationality Act. The United States House of Representatives passed a
resolution vetoing the suspension pursuant to § 244(c)(2) authorizing either House of
Congress, by resolution, to invalidate the decision of the executive branch to allow a
particular deportable alien to remain in the United States. The immigration judge
reopened the deportation proceedings to implement the House order and the alien was
ordered deported. The Board of Immigration Appeals dismissed the alien’s appeal,
holding that it had no power to declare unconstitutional an act of Congress. The United
States Court of Appeals for Ninth Circuit held that the House was without constitutional
authority to order the alien’s deportation and that § 244(c)(2) violated the constitutional
doctrine on separation of powers.

On appeal, the U.S. Supreme Court declared § 244(c)(2) unconstitutional. But the Court
shied away from the issue of separation of powers and instead held that the provision
violates the presentment clause and bicameralism. It held that the one-house veto was
essentially legislative in purpose and effect. As such, it is subject to the procedures set
out in Article I of the Constitution requiring the passage by a majority of both Houses
and presentment to the President. x x x x x x x x x
Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two
lower court decisions invalidating the legislative veto provisions in the Natural Gas
Policy Act of 1978 and the Federal Trade Commission Improvement Act of 1980.
Following this precedence, lower courts invalidated statutes containing legislative veto
provisions although some of these provisions required the approval of both Houses of
Congress and thus met the bicameralism requirement of Article I. Indeed, some of these
veto provisions were not even exercised.35(emphasis supplied)
In Macalintal, given the concept and configuration of the power of congressional

oversight and considering the nature and powers of a constitutional body like the
Commission on Elections, the Court struck down the provision in RA 9189 (The Overseas
Absentee Voting Act of 2003) creating a Joint Congressional Committee. The committee
was tasked not only to monitor and evaluate the implementation of the said law but
also to review, revise, amend and approve the IRR promulgated by the Commission on
Elections. The Court held that these functions infringed on the constitutional
independence of the Commission on Elections.36
With this backdrop, it is clear that congressional oversight is not unconstitutional per se,
meaning, it neither necessarily constitutes an encroachment on the executive power to
implement laws nor undermines the constitutional separation of powers. Rather, it is
integral to the checks and balances inherent in a democratic system of government. It
may in fact even enhance the separation of powers as it prevents the over-accumulation
of power in the executive branch.
However, to forestall the danger of congressional encroachment "beyond the legislative

sphere," the Constitution imposes two basic and related constraints on Congress.37 It
may not vest itself, any of its committees or its members with either executive or
judicial power.38 And, when it exercises its legislative power, it must follow the "single,
finely wrought and exhaustively considered, procedures" specified under the
Constitution,39 including the procedure for enactment of laws and presentment.

Thus, any post-enactment congressional measure such as this should be limited to
scrutiny and investigation. In particular, congressional oversight must be confined to the
following:
(1) scrutiny based primarily on Congress’ power of appropriation and the budget
hearings conducted in connection with it, its power to ask heads of departments to
appear before and be heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation40 and
(2) investigation and monitoring41 of the implementation of laws pursuant to the power
of Congress to conduct inquiries in aid of legislation.42
Any action or step beyond that will undermine the separation of powers guaranteed by
the Constitution. Legislative vetoes fall in this class.
Legislative veto is a statutory provision requiring the President or an administrative

agency to present the proposed implementing rules and regulations of a law to
Congress which, by itself or through a committee formed by it, retains a "right" or
"power" to approve or disapprove such regulations before they take effect. As such, a
legislative veto in the form of a congressional oversight committee is in the form of an
inward-turning delegation designed to attach a congressional leash (other than through
scrutiny and investigation) to an agency to which Congress has by law initially delegated
broad powers.43 It radically changes the design or structure of the Constitution’s
diagram of power as it entrusts to Congress a direct role in enforcing, applying or
implementing its own laws.44
Congress has two options when enacting legislation to define national policy within the
broad horizons of its legislative competence.45 It can itself formulate the details or it
can assign to the executive branch the responsibility for making necessary managerial
decisions in conformity with those standards.46 In the latter case, the law must be
complete in all its essential terms and conditions when it leaves the hands of the
legislature.47 Thus, what is left for the executive branch or the concerned
administrative agency when it formulates rules and regulations implementing the law is
to fill up details (supplementary rule-making) or ascertain facts necessary to bring the
law into actual operation (contingent rule-making).48
Administrative regulations enacted by administrative agencies to implement and

interpret the law which they are entrusted to enforce have the force of law and are

entitled to respect.49 Such rules and regulations partake of the nature of a
statute50 and are just as binding as if they have been written in the statute itself. As
such, they have the force and effect of law and enjoy the presumption of
constitutionality and legality until they are set aside with finality in an appropriate case
by a competent court.51 Congress, in the guise of assuming the role of an overseer, may
not pass upon their legality by subjecting them to its stamp of approval without
disturbing the calculated balance of powers established by the Constitution. In
exercising discretion to approve or disapprove the IRR based on a determination of
whether or not they conformed with the provisions of RA 9335, Congress arrogated
judicial power unto itself, a power exclusively vested in this Court by the Constitution.
Considered Opinion of

Mr. Justice Dante O. Tinga
Moreover, the requirement that the implementing rules of a law be subjected to

approval by Congress as a condition for their effectivity violates the cardinal
constitutional principles of bicameralism and the rule on presentment.52
Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives, except to the extent reserved
to the people by the provision on initiative and referendum. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and repeal laws)53 is vested
in Congress which consists of two chambers, the Senate and the House of
Representatives. A valid exercise of legislative power requires the act of both chambers.
Corrollarily, it can be exercised neither solely by one of the two chambers nor by a
committee of either or both chambers. Thus, assuming the validity of a legislative veto,
both a single-chamber legislative veto and a congressional committee legislative veto
are invalid.
Additionally, Section 27(1), Article VI of the Constitution provides:
Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be
presented to the President. If he approves the same, he shall sign it, otherwise, he shall
veto it and return the same with his objections to the House where it originated, which
shall enter the objections at large in its Journal and proceed to reconsider it. If, after

such reconsideration, two-thirds of all the Members of such House shall agree to pass
the bill, it shall be sent, together with the objections, to the other House by which it
shall likewise be reconsidered, and if approved by two-thirds of all the Members of that
House, it shall become a law. In all such cases, the votes of each House shall be
determined by yeas or nays, and the names of the members voting for or against shall
be entered in its Journal. The President shall communicate his veto of any bill to the
House where it originated within thirty days after the date of receipt thereof; otherwise,
it shall become a law as if he had signed it. (emphasis supplied)
Every bill passed by Congress must be presented to the President for approval or veto.
In the absence of presentment to the President, no bill passed by Congress can become
a law. In this sense, law-making under the Constitution is a joint act of the Legislature
and of the Executive. Assuming that legislative veto is a valid legislative act with the
force of law, it cannot take effect without such presentment even if approved by both
chambers of Congress.
In sum, two steps are required before a bill becomes a law. First, it must be approved by
both Houses of Congress.54 Second, it must be presented to and approved by the
President.55 As summarized by Justice Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57,
the following is the procedure for the approval of bills:
A bill is introduced by any member of the House of Representatives or the Senate

except for some measures that must originate only in the former chamber.
The first reading involves only a reading of the number and title of the measure and its
referral by the Senate President or the Speaker to the proper committee for study.
The bill may be "killed" in the committee or it may be recommended for approval, with
or without amendments, sometimes after public hearings are first held thereon. If there
are other bills of the same nature or purpose, they may all be consolidated into one bill
under common authorship or as a committee bill.
Once reported out, the bill shall be calendared for second reading. It is at this stage that
the bill is read in its entirety, scrutinized, debated upon and amended when desired. The
second reading is the most important stage in the passage of a bill.
The bill as approved on second reading is printed in its final form and copies thereof are
distributed at least three days before the third reading. On the third reading, the

members merely register their votes and explain them if they are allowed by the rules.
No further debate is allowed.
Once the bill passes third reading, it is sent to the other chamber, where it will also
undergo the three readings. If there are differences between the versions approved by
the two chambers, a conference committee58 representing both Houses will draft a
compromise measure that if ratified by the Senate and the House of Representatives
will then be submitted to the President for his consideration.
The bill is enrolled when printed as finally approved by the Congress, thereafter
authenticated with the signatures of the Senate President, the Speaker, and the
Secretaries of their respective chambers…59
The President’s role in law-making.
The final step is submission to the President for approval. Once approved, it takes effect
as law after the required publication.60
Where Congress delegates the formulation of rules to implement the law it has enacted
pursuant to sufficient standards established in the said law, the law must be complete in
all its essential terms and conditions when it leaves the hands of the legislature. And it
may be deemed to have left the hands of the legislature when it becomes effective
because it is only upon effectivity of the statute that legal rights and obligations become
available to those entitled by the language of the statute. Subject to the indispensable
requisite of publication under the due process clause,61 the determination as to when a
law takes effect is wholly the prerogative of Congress.62 As such, it is only upon its
effectivity that a law may be executed and the executive branch acquires the duties and
powers to execute the said law. Before that point, the role of the executive branch,
particularly of the President, is limited to approving or vetoing the law.63
From the moment the law becomes effective, any provision of law that empowers
Congress or any of its members to play any role in the implementation or enforcement
of the law violates the principle of separation of powers and is thus unconstitutional.
Under this principle, a provision that requires Congress or its members to approve the
implementing rules of a law after it has already taken effect shall be unconstitutional, as
is a provision that allows Congress or its members to overturn any directive or ruling
made by the members of the executive branch charged with the implementation of the
law.

Following this rationale, Section 12 of RA 9335 should be struck down as
unconstitutional. While there may be similar provisions of other laws that may be
invalidated for failure to pass this standard, the Court refrains from invalidating them
wholesale but will do so at the proper time when an appropriate case assailing those
provisions is brought before us.64
The next question to be resolved is: what is the effect of the unconstitutionality of
Section 12 of RA 9335 on the other provisions of the law? Will it render the entire law
unconstitutional? No.
Section 13 of RA 9335 provides:
SEC. 13. Separability Clause. – If any provision of this Act is declared invalid by a

competent court, the remainder of this Act or any provision not affected by such
declaration of invalidity shall remain in force and effect.
In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following
rules:
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. x x x
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.

The separability clause of RA 9335 reveals the intention of the legislature to isolate and
detach any invalid provision from the other provisions so that the latter may continue in
force and effect. The valid portions can stand independently of the invalid section.
Without Section 12, the remaining provisions still constitute a complete, intelligible and
valid law which carries out the legislative intent to optimize the revenue-generation
capability and collection of the BIR and the BOC by providing for a system of rewards
and sanctions through the Rewards and Incentives Fund and a Revenue Performance
Evaluation Board.
To be effective, administrative rules and regulations must be published in full if their

purpose is to enforce or implement existing law pursuant to a valid delegation. The IRR
of RA 9335 were published on May 30, 2006 in two newspapers of general
circulation66 and became effective 15 days thereafter.67 Until and unless the contrary is
shown, the IRR are presumed valid and effective even without the approval of the Joint
Congressional Oversight Committee.
WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating

a Joint Congressional Oversight Committee to approve the implementing rules and
regulations of the law is declared UNCONSTITUTIONAL and
therefore NULL and VOID. The constitutionality of the remaining provisions of RA 9335
is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the provisions remain in force
and effect.
SO ORDERED.
Digest
ABAKADA GURO PARTYLIST vs. PURISIMA- Attrition Act of 2005, R.A. No. 9335
FACTS:
Petitioners question the Attrition Act of 2005 and contend that by establishing a system
of rewards and incentives when they exceed their revenue targets, the law (1)
transforms the officials and employees of the BIR and BOC into mercenaries and bounty
hunters; (2) violates the constitutional guarantee of equal protection as it limits the
scope of the law to the BIR and BOC; (3) unduly delegates to the President the power to
fix revenue targets without sufficient standards; and (4) violates the doctrine of

separation of powers by creating a Congressional Oversight Committee to approve the
law’s implementing rules.
ISSUE:
Is R.A. No. 9335 constitutional?
HELD:
YES. R.A. No. 9335 is constitutional, except for Section 12 of the law which creates a
Joint Congressional Oversight Committee to review the law’s IRR.
That RA No. 9335 will turn BIR and BOC employees and officials into “bounty hunters
and mercenaries” is purely speculative as the law establishes safeguards by imposing
liabilities on officers and employees who are guilty of negligence, abuses, malfeasance,
etc. Neither is the equal protection clause violated since the law recognizes a valid
classification as only the BIR and BOC have the common distinct primary function of
revenue generation. There are sufficient policy and standards to guide the President in
fixing revenue targets as the revenue targets are based on the original estimated
revenue collection expected of the BIR and the BOC.
However, the creation of a Joint Congressional Oversight Committee for the purpose of
reviewing the IRR formulated by agencies of the executive branch (DOF, DBM, NEDA,
etc.) is unconstitutional since it violates the doctrine of separation of powers since
Congress arrogated judicial power upon itself.


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Republic of the Philippines

G.R. No. 4349 September 24, 1908

THE UNITED STATES, plaintiff-appellee,

Ortigas & Fisher for appellant.

Paragraph 83 reads, in part, as follows:

Elsa M. Cañete CPA, MBA, DBA 1

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This provision of the statute does, indeed, present a serious question.

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11 Phil. 327 – Political Law – Delegation of Power – Administrative Bodies

Meanwhile, Aniceto Barrias was caught navigating the Pasig River using a lighter which

ISSUE: Whether or not the penal provision in the Circular is valid.

HELD: No. The Commissioner cannot impose a different range of penalty different from

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G.R. No. L-45685 November 16, 1937

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. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia

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(3) No right on appeal exists in such cases.

In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and

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As special defenses, respondents allege:

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The question of the constitutionality of an act of the legislature is frequently raised in

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In probation, the probationer is in no true sense, as in pardon, a free man. He is not

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In testing whether a statute constitute an undue delegation of legislative power or not,

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By the twentieth article of the declaration of rights in the constitution of this

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