CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
G.R. No. 81958 June 30, 1988
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS,
INC., petitioner,  In the light of the foregoing, the petition must be dismissed.
vs.
HON. FRANKLIN M. DRILON as Secretary of Labor and
Employment, and TOMAS D. ACHACOSO, as Administrator of the
Philippine Overseas Employment Administration, respondents.
Gutierrez & Alo Law Offices for petitioner.
 
SARMIENTO, J.:
The petitioner, Philippine Association of Service Exporters, Inc.
(PASEI, for short), a firm "engaged principally in the recruitment of
Filipino workers, male and female, for overseas
placement," 1 challenges the Constitutional validity of Department
Order No. 1, Series of 1988, of the Department of Labor and
Employment, in the character of "GUIDELINES GOVERNING THE
TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO
DOMESTIC AND HOUSEHOLD WORKERS," in this petition for
certiorari and prohibition. Specifically, the measure is assailed for
"discrimination against males or females;" 2 that it "does not apply
to all Filipino workers but only to domestic helpers and females
with similar skills;" 3 and that it is violative of the right to travel. It
is held likewise to be an invalid exercise of the lawmaking power,
police power being legislative, and not executive, in character.
In its supplement to the petition, PASEI invokes Section 3, of
Article XIII, of the Constitution, providing for worker participation
"in policy and decision-making processes affecting their rights and
benefits as may be provided by law." 4 Department Order No. 1, it
is contended, was passed in the absence of prior consultations. It
is claimed, finally, to be in violation of the Charter's non-
impairment clause, in addition to the "great and irreparable
injury" that PASEI members face should the Order be further
enforced.
On May 25, 1988, the Solicitor General, on behalf of the
respondents Secretary of Labor and Administrator of the
Philippine Overseas Employment Administration, filed a Comment
informing the Court that on March 8, 1988, the respondent Labor
Secretary lifted the deployment ban in the states of Iraq, Jordan,
Qatar, Canada, Hongkong, United States, Italy, Norway, Austria,
and Switzerland. * In submitting the validity of the challenged
"guidelines," the Solicitor General invokes the police power of the
Philippine State.
TROPANG POTCHI
It is admitted that Department Order No. 1 is in the nature of a private interests at the expense of the citizenry, there is a clear
police power measure. The only question is whether or not it is misuse of the power. 12
valid under the Constitution.
The concept of police power is well-established in this jurisdiction.
It has been defined as the "state authority to enact legislation that
As a general rule, official acts enjoy a presumed vahdity. 13 In the
may interfere with personal liberty or property in order to
absence of clear and convincing evidence to the contrary, the
promote the general welfare." 5 As defined, it consists of (1) an
presumption logically stands.
imposition of restraint upon liberty or property, (2) in order to
foster the common good. It is not capable of an exact definition
but has been, purposely, veiled in general terms to underscore its The petitioner has shown no satisfactory reason why the
all-comprehensive embrace. contested measure should be nullified. There is no question that
Department Order No. 1 applies only to "female contract
workers," 14 but it does not thereby make an undue discrimination
"Its scope, ever-expanding to meet the exigencies of the times,
between the sexes. It is well-settled that "equality before the law"
even to anticipate the future where it could be done, provides
under the Constitution 15 does not import a perfect Identity of
enough room for an efficient and flexible response to conditions
rights among all men and women. It admits of classifications,
and circumstances thus assuring the greatest benefits." 6
provided that (1) such classifications rest on substantial
distinctions; (2) they are germane to the purposes of the law; (3)
It finds no specific Constitutional grant for the plain reason that it they are not confined to existing conditions; and (4) they apply
does not owe its origin to the Charter. Along with the taxing equally to all members of the same class. 16
power and eminent domain, it is inborn in the very fact of
statehood and sovereignty. It is a fundamental attribute of
The Court is satisfied that the classification made-the preference
government that has enabled it to perform the most vital
for female workers — rests on substantial distinctions.
functions of governance. Marshall, to whom the expression has
been credited, 7 refers to it succinctly as the plenary power of the
State "to govern its citizens." 8 As a matter of judicial notice, the Court is well aware of the
unhappy plight that has befallen our female labor force abroad,
especially domestic servants, amid exploitative working conditions
"The police power of the State ... is a power coextensive with self-
marked by, in not a few cases, physical and personal abuse. The
protection, and it is not inaptly termed the "law of overwhelming
sordid tales of maltreatment suffered by migrant Filipina workers,
necessity." It may be said to be that inherent and plenary power
even rape and various forms of torture, confirmed by testimonies
in the State which enables it to prohibit all things hurtful to the
of returning workers, are compelling motives for urgent
comfort, safety, and welfare of society." 9
Government action. As precisely the caretaker of Constitutional
rights, the Court is called upon to protect victims of exploitation.
It constitutes an implied limitation on the Bill of Rights. According In fulfilling that duty, the Court sustains the Government's efforts.
to Fernando, it is "rooted in the conception that men in organizing
the state and imposing upon its government limitations to
The same, however, cannot be said of our male workers. In the
safeguard constitutional rights did not intend thereby to enable
first place, there is no evidence that, except perhaps for isolated
an individual citizen or a group of citizens to obstruct
instances, our men abroad have been afflicted with an Identical
unreasonably the enactment of such salutary measures calculated
predicament. The petitioner has proffered no argument that the
to ensure communal peace, safety, good order, and
Government should act similarly with respect to male workers.
welfare." 10 Significantly, the Bill of Rights itself does not purport
The Court, of course, is not impressing some male chauvinistic
to be an absolute guaranty of individual rights and liberties "Even
notion that men are superior to women. What the Court is saying
liberty itself, the greatest of all rights, is not unrestricted license
is that it was largely a matter of evidence (that women domestic
to act according to one's will." 11 It is subject to the far more
workers are being ill-treated abroad in massive instances) and not
overriding demands and requirements of the greater number.
upon some fanciful or arbitrary yardstick that the Government
acted in this case. It is evidence capable indeed of unquestionable
Notwithstanding its extensive sweep, police power is not without demonstration and evidence this Court accepts. The Court cannot,
its own limitations. For all its awesome consequences, it may not however, say the same thing as far as men are concerned. There
be exercised arbitrarily or unreasonably. Otherwise, and in that is simply no evidence to justify such an inference. Suffice it to
event, it defeats the purpose for which it is exercised, that is, to state, then, that insofar as classifications are concerned, this Court
advance the public good. Thus, when the power is used to further
1
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

is content that distinctions are borne by the evidence. The Court finds, finally, the impugned guidelines to be applicable 5.3 Hirings by senior
Discrimination in this case is justified. to all female domestic overseas workers. That it does not apply to officials of the
"all Filipina workers" 20 is not an argument for unconstitutionality. diplomatic corps and
Had the ban been given universal applicability, then it would have duly accredited
As we have furthermore indicated, executive determinations are
been unreasonable and arbitrary. For obvious reasons, not all of international
generally final on the Court. Under a republican regime, it is the
them are similarly circumstanced. What the Constitution prohibits organizations.
executive branch that enforces policy. For their part, the courts
is the singling out of a select person or group of persons within an
decide, in the proper cases, whether that policy, or the manner by
existing class, to the prejudice of such a person or group or
which it is implemented, agrees with the Constitution or the laws, 5.4 Hirings by
resulting in an unfair advantage to another person or group of
but it is not for them to question its wisdom. As a co-equal body, employers in
persons. To apply the ban, say exclusively to workers deployed by
the judiciary has great respect for determinations of the Chief countries with whom
A, but not to those recruited by B, would obviously clash with the
Executive or his subalterns, especially when the legislature itself the Philippines have
equal protection clause of the Charter. It would be a classic case
has specifically given them enough room on how the law should [sic] bilateral labor
of what Chase refers to as a law that "takes property from A and
be effectively enforced. In the case at bar, there is no gainsaying agreements or
gives it to B." 21 It would be an unlawful invasion of property rights
the fact, and the Court will deal with this at greater length shortly, understanding.
and freedom of contract and needless to state, an invalid
that Department Order No. 1 implements the rule-making powers
act. 22 (Fernando says: "Where the classification is based on such
granted by the Labor Code. But what should be noted is the fact
distinctions that make a real difference as infancy, sex, and stage xxx xxx xxx
that in spite of such a fiction of finality, the Court is on its own
of civilization of minority groups, the better rule, it would seem, is
persuaded that prevailing conditions indeed call for a deployment
to recognize its validity only if the young, the women, and the 7. VACATIONING DOMESTIC HELPERS AND
ban.
cultural minorities are singled out for favorable treatment. There WORKERS OF SIMILAR SKILLS--Vacationing
would be an element of unreasonableness if on the contrary their domestic helpers and/or workers of similar
There is likewise no doubt that such a classification is germane to status that calls for the law ministering to their needs is made the skills shall be allowed to process with the
the purpose behind the measure. Unquestionably, it is the basis of discriminatory legislation against them. If such be the POEA and leave for worksite only if they are
avowed objective of Department Order No. 1 to "enhance the case, it would be difficult to refute the assertion of denial of equal returning to the same employer to finish an
protection for Filipino female overseas workers" 17 this Court has protection." 23 In the case at bar, the assailed Order clearly existing or partially served employment
no quarrel that in the midst of the terrible mistreatment Filipina accords protection to certain women workers, and not the contract. Those workers returning to
workers have suffered abroad, a ban on deployment will be for contrary.) worksite to serve a new employer shall be
their own good and welfare.
covered by the suspension and the
It is incorrect to say that Department Order No. 1 prescribes a provision of these guidelines.
The Order does not narrowly apply to existing conditions. Rather, total ban on overseas deployment. From scattered provisions of
it is intended to apply indefinitely so long as those conditions the Order, it is evident that such a total ban has hot been xxx xxx xxx
exist. This is clear from the Order itself ("Pending review of the contemplated. We quote:
administrative and legal measures, in the Philippines and in the
host countries . . ." 18), meaning to say that should the authorities 9. LIFTING OF SUSPENSION-The Secretary of
5. AUTHORIZED DEPLOYMENT-The Labor and Employment (DOLE) may, upon
arrive at a means impressed with a greater degree of
deployment of domestic helpers and recommendation of the Philippine Overseas
permanency, the ban shall be lifted. As a stop-gap measure, it is
workers of similar skills defined herein to Employment Administration (POEA), lift the
possessed of a necessary malleability, depending on the
the following [sic] are authorized under suspension in countries where there are:
circumstances of each case. Accordingly, it provides:
these guidelines and are exempted from
the suspension.
9. LIFTING OF SUSPENSION. — The 1. Bilateral
Secretary of Labor and Employment (DOLE) agreements or
5.1 Hirings by understanding with
may, upon recommendation of the
immediate members the Philippines,
Philippine Overseas Employment
of the family of Heads and/or,
Administration (POEA), lift the suspension in
of State and
countries where there are:
Government;
2. Existing
1. Bilateral agreements or understanding mechanisms
5.2 Hirings by providing for
with the Philippines, and/or,
Minister, Deputy sufficient safeguards
Minister and the to ensure the welfare
2. Existing mechanisms providing for other senior and protection of
sufficient safeguards to ensure the welfare government officials; Filipino workers. 24
and protection of Filipino workers. 19 and

2
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
xxx xxx xxx
The consequence the deployment ban has on the right to travel
does not impair the right. The right to travel is subject, among
other things, to the requirements of "public safety," "as may be
provided by law." 25 Department Order No. 1 is a valid
implementation of the Labor Code, in particular, its basic policy to
"afford protection to labor," 26pursuant to the respondent
Department of Labor's rule-making authority vested in it by the
Labor Code. 27 The petitioner assumes that it is unreasonable
simply because of its impact on the right to travel, but as we have
stated, the right itself is not absolute. The disputed Order is a
valid qualification thereto.
Neither is there merit in the contention that Department Order
No. 1 constitutes an invalid exercise of legislative power. It is true
that police power is the domain of the legislature, but it does not
mean that such an authority may not be lawfully delegated. As we
have mentioned, the Labor Code itself vests the Department of
Labor and Employment with rulemaking powers in the
enforcement whereof. 28
The petitioners's reliance on the Constitutional guaranty of
worker participation "in policy and decision-making processes
affecting their rights and benefits" 29 is not well-taken. The right
granted by this provision, again, must submit to the demands and
necessities of the State's power of regulation.
The Constitution declares that:
Sec. 3. The State shall afford full protection
to labor, local and overseas, organized and
unorganized, and promote full employment
and equality of employment opportunities
for all. 30
"Protection to labor" does not signify the promotion of
employment alone. What concerns the Constitution more
paramountly is that such an employment be above all, decent,
just, and humane. It is bad enough that the country has to send its
sons and daughters to strange lands because it cannot satisfy
their employment needs at home. Under these circumstances, the
Government is duty-bound to insure that our toiling expatriates
have adequate protection, personally and economically, while
away from home. In this case, the Government has evidence, an
evidence the petitioner cannot seriously dispute, of the lack or
inadequacy of such protection, and as part of its duty, it has
precisely ordered an indefinite ban on deployment.
The Court finds furthermore that the Government has not
indiscriminately made use of its authority. It is not contested that
it has in fact removed the prohibition with respect to certain
countries as manifested by the Solicitor General.
The non-impairment clause of the Constitution, invoked by the
petitioner, must yield to the loftier purposes targetted by the
Government. 31 Freedom of contract and enterprise, like all other
freedoms, is not free from restrictions, more so in this jurisdiction,
where laissez faire has never been fully accepted as a controlling
economic way of life.
This Court understands the grave implications the questioned
Order has on the business of recruitment. The concern of the
Government, however, is not necessarily to maintain profits of
business firms. In the ordinary sequence of events, it is profits
that suffer as a result of Government regulation. The interest of
the State is to provide a decent living to its citizens. The
Government has convinced the Court in this case that this is its
intent. We do not find the impugned Order to be tainted with a
grave abuse of discretion to warrant the extraordinary relief
prayed for.
WHEREFORE, the petition is DISMISSED. No costs.
SO ORDERED.
G.R. No. L-7995             May 31, 1957
LAO H. ICHONG, in his own behalf and in behalf of other alien
residents, corporations and partnerships adversely affected. by
Republic Act No. 1180, petitioner,  therefrom in favor of citizens and juridical entities of the United
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO
SARMIENTO, City Treasurer of Manila,respondents.
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and
Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor
Pacifico P. de Castro for respondent Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S.
Serrano for respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, J.:
I. The case and issue, in general
TROPANG POTCHI
This Court has before it the delicate task of passing upon the
validity and constitutionality of a legislative enactment,
fundamental and far-reaching in significance. The enactment
poses questions of due process, police power and equal
protection of the laws. It also poses an important issue of fact,
that is whether the conditions which the disputed law purports to
remedy really or actually exist. Admittedly springing from a deep,
militant, and positive nationalistic impulse, the law purports to
protect citizen and country from the alien retailer. Through it, and
within the field of economy it regulates, Congress attempts to
translate national aspirations for economic independence and
national security, rooted in the drive and urge for national survival
and welfare, into a concrete and tangible measures designed to
free the national retailer from the competing dominance of the
alien, so that the country and the nation may be free from a
supposed economic dependence and bondage. Do the facts and
circumstances justify the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail
Business." In effect it nationalizes the retail trade business. The
main provisions of the Act are: (1) a prohibition against persons,
not citizens of the Philippines, and against associations,
partnerships, or corporations the capital of which are not wholly
owned by citizens of the Philippines, from engaging directly or
indirectly in the retail trade; (2) an exception from the above
prohibition in favor of aliens actually engaged in said business on
May 15, 1954, who are allowed to continue to engaged therein,
unless their licenses are forfeited in accordance with the law, until
their death or voluntary retirement in case of natural persons,
and for ten years after the approval of the Act or until the
expiration of term in case of juridical persons; (3) an exception
States; (4) a provision for the forfeiture of licenses (to engage in
the retail business) for violation of the laws on nationalization,
control weights and measures and labor and other laws relating to
trade, commerce and industry; (5) a prohibition against the
establishment or opening by aliens actually engaged in the retail
business of additional stores or branches of retail business, (6) a
provision requiring aliens actually engaged in the retail business
to present for registration with the proper authorities a verified
statement concerning their businesses, giving, among other
matters, the nature of the business, their assets and liabilities and
their offices and principal offices of judicial entities; and (7) a
provision allowing the heirs of aliens now engaged in the retail
business who die, to continue such business for a period of six
months for purposes of liquidation.
III. Grounds upon which petition is based-Answer thereto
3
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Petitioner, for and in his own behalf and on behalf of other alien
residents corporations and partnerships adversely affected by the
provisions of Republic Act. No. 1180, brought this action to obtain
a judicial declaration that said Act is unconstitutional, and to
enjoin the Secretary of Finance and all other persons acting under
him, particularly city and municipal treasurers, from enforcing its
provisions. Petitioner attacks the constitutionality of the Act,
contending that: (1) it denies to alien residents the equal
protection of the laws and deprives of their liberty and property
without due process of law ; (2) the subject of the Act is not
expressed or comprehended in the title thereof; (3) the Act
violates international and treaty obligations of the Republic of the
Philippines; (4) the provisions of the Act against the transmission
by aliens of their retail business thru hereditary succession, and
those requiring 100% Filipino capitalization for a corporation or
entity to entitle it to engage in the retail business, violate the
spirit of Sections 1 and 5, Article XIII and Section 8 of Article XIV of
the Constitution.
In answer, the Solicitor-General and the Fiscal of the City of
Manila contend that: (1) the Act was passed in the valid exercise
of the police power of the State, which exercise is authorized in
the Constitution in the interest of national economic survival; (2)
the Act has only one subject embraced in the title; (3) no treaty or
international obligations are infringed; (4) as regards hereditary
succession, only the form is affected but the value of the property
is not impaired, and the institution of inheritance is only of
statutory origin.
IV. Preliminary consideration of legal principles involved
a. The police power. —
There is no question that the Act was approved in the exercise of
the police power, but petitioner claims that its exercise in this
instance is attended by a violation of the constitutional
requirements of due process and equal protection of the laws. But
before proceeding to the consideration and resolution of the
ultimate issue involved, it would be well to bear in mind certain
basic and fundamental, albeit preliminary, considerations in the
determination of the ever recurrent conflict between police
power and the guarantees of due process and equal protection of
the laws. What is the scope of police power, and how are the due
process and equal protection clauses related to it? What is the
province and power of the legislature, and what is the function
and duty of the courts? These consideration must be clearly and
correctly understood that their application to the facts of the case
may be brought forth with clarity and the issue accordingly
resolved.
It has been said the police power is so far - reaching in scope, that
it has become almost impossible to limit its sweep. As it derives its
existence from the very existence of the State itself, it does not
need to be expressed or defined in its scope; it is said to be co-
extensive with self-protection and survival, and as such it is the
most positive and active of all governmental processes, the most
essential, insistent and illimitable. Especially is it so under a
modern democratic framework where the demands of society and
of nations have multiplied to almost unimaginable proportions;
the field and scope of police power has become almost boundless,
just as the fields of public interest and public welfare have
become almost all-embracing and have transcended human
foresight. Otherwise stated, as we cannot foresee the needs and
demands of public interest and welfare in this constantly changing
and progressive world, so we cannot delimit beforehand the
extent or scope of police power by which and through which the
State seeks to attain or achieve interest or welfare. So it is that
Constitutions do not define the scope or extent of the police
power of the State; what they do is to set forth the limitations
thereof. The most important of these are the due process clause
and the equal protection clause.
b. Limitations on police power. —
The basic limitations of due process and equal protection are
found in the following provisions of our Constitution:
SECTION 1.(1) No person shall be deprived of life,
liberty or property without due process of law, nor any
person be denied the equal protection of the laws.
(Article III, Phil. Constitution)
These constitutional guarantees which embody the essence of
individual liberty and freedom in democracies, are not limited to
citizens alone but are admittedly universal in their application,
without regard to any differences of race, of color, or of
nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)
c. The, equal protection clause. —
The equal protection of the law clause is against undue favor and
individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is directed or by
territory within which is to operate. It does not demand absolute
equality among residents; it merely requires that all persons shall
be treated alike, under like circumstances and conditions both as
to privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies only
to those persons falling within a specified class, if it applies alike
to all persons within such class, and reasonable grounds exists for
making a distinction between those who fall within such class and
those who do not. (2 Cooley, Constitutional Limitations, 824-825.)
TROPANG POTCHI
d. The due process clause. —
The due process clause has to do with the reasonableness of
legislation enacted in pursuance of the police power. Is there
public interest, a public purpose; is public welfare involved? Is the
Act reasonably necessary for the accomplishment of the
legislature's purpose; is it not unreasonable, arbitrary or
oppressive? Is there sufficient foundation or reason in connection
with the matter involved; or has there not been a capricious use
of the legislative power? Can the aims conceived be achieved by
the means used, or is it not merely an unjustified interference
with private interest? These are the questions that we ask when
the due process test is applied.
The conflict, therefore, between police power and the guarantees
of due process and equal protection of the laws is more apparent
than real. Properly related, the power and the guarantees are
supposed to coexist. The balancing is the essence or, shall it be
said, the indispensable means for the attainment of legitimate
aspirations of any democratic society. There can be no absolute
power, whoever exercise it, for that would be tyranny. Yet there
can neither be absolute liberty, for that would mean license and
anarchy. So the State can deprive persons of life, liberty and
property, provided there is due process of law; and persons may
be classified into classes and groups, provided everyone is given
the equal protection of the law. The test or standard, as always, is
reason. The police power legislation must be firmly grounded on
public interest and welfare, and a reasonable relation must exist
between purposes and means. And if distinction and classification
has been made, there must be a reasonable basis for said
distinction.
e. Legislative discretion not subject to judicial review. —
Now, in this matter of equitable balancing, what is the proper
place and role of the courts? It must not be overlooked, in the
first place, that the legislature, which is the constitutional
repository of police power and exercises the prerogative of
determining the policy of the State, is by force of circumstances
primarily the judge of necessity, adequacy or reasonableness and
wisdom, of any law promulgated in the exercise of the police
power, or of the measures adopted to implement the public
policy or to achieve public interest. On the other hand, courts,
although zealous guardians of individual liberty and right, have
nevertheless evinced a reluctance to interfere with the exercise of
the legislative prerogative. They have done so early where there
has been a clear, patent or palpable arbitrary and unreasonable
abuse of the legislative prerogative. Moreover, courts are not
supposed to override legitimate policy, and courts never inquire
into the wisdom of the law.
V. Economic problems sought to be remedied
4
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

With the above considerations in mind, we will now proceed to retailer. He has shown in this trade, industry without limit, and Chinese ........... 15,356 118,348,692
delve directly into the issue involved. If the disputed legislation the patience and forbearance of a slave.
were merely a regulation, as its title indicates, there would be no Others ............ 1,646 40,187,090
question that it falls within the legitimate scope of legislative 1947:
Derogatory epithets are hurled at him, but he laughs these off
power. But it goes further and prohibits a group of residents, the
without murmur; insults of ill-bred and insolent neighbors and Filipino .......... 111,107 208,658,946
aliens, from engaging therein. The problem becomes more
customers are made in his face, but he heeds them not, and he
complex because its subject is a common, trade or occupation, as Chinese ........... 13,774 106,156,218
forgets and forgives. The community takes note of him, as he
old as society itself, which from the immemorial has always been
appears to be harmless and extremely useful. Others ........... 354 8,761,260
open to residents, irrespective of race, color or citizenship.
1948: (Census)
c. Alleged alien control and dominance. —
a. Importance of retail trade in the economy of the nation. — Filipino .......... 113,631 213,342,264

There is a general feeling on the part of the public, which appears Chinese .......... 12,087 93,155,459
In a primitive economy where families produce all that they
to be true to fact, about the controlling and dominant position Others .......... 422 10,514,675
consume and consume all that they produce, the dealer, of
that the alien retailer holds in the nation's economy. Food and
course, is unknown. But as group life develops and families begin 1949:
other essentials, clothing, almost all articles of daily life reach the
to live in communities producing more than what they consume
residents mostly through him. In big cities and centers of Filipino .......... 113,659 213,451,602
and needing an infinite number of things they do not produce, the
population he has acquired not only predominance, but apparent
dealer comes into existence. As villages develop into big Chinese .......... 16,248 125,223,336
control over distribution of almost all kinds of goods, such as
communities and specialization in production begins, the dealer's Others .......... 486 12,056,365
lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic,
importance is enhanced. Under modern conditions and standards
and scores of other goods and articles. And were it not for some 1951:
of living, in which man's needs have multiplied and diversified to
national corporations like the Naric, the Namarco, the Facomas
unlimited extents and proportions, the retailer comes as essential Filipino ......... 119,352 224,053,620
and the Acefa, his control over principal foods and products
as the producer, because thru him the infinite variety of articles,
would easily become full and complete. Chinese .......... 17,429 134,325,303
goods and needed for daily life are placed within the easy reach of
consumers. Retail dealers perform the functions of capillaries in Others .......... 347 8,614,025
the human body, thru which all the needed food and supplies are Petitioner denies that there is alien predominance and control in
ministered to members of the communities comprising the the retail trade. In one breath it is said that the fear is unfounded
nation. and the threat is imagined; in another, it is charged that the law is
merely the result of radicalism and pure and unabashed
nationalism. Alienage, it is said, is not an element of control; also
There cannot be any question about the importance of the
so many unmanageable factors in the retail business make control AVERAGE 
retailer in the life of the community. He ministers to the resident's
virtually impossible. The first argument which brings up an issue ASSETS AND GROSS SALES PER ESTABLISHMENT
daily needs, food in all its increasing forms, and the various little
of fact merits serious consideration. The others are matters of
gadgets and things needed for home and daily life. He provides his
opinion within the exclusive competence of the legislature and
customers around his store with the rice or corn, the fish, the salt, Year and Retailer's 
beyond our prerogative to pass upon and decide.
the vinegar, the spices needed for the daily cooking. He has cloths Nationality
to sell, even the needle and the thread to sew them or darn the
clothes that wear out. The retailer, therefore, from the lowly The best evidence are the statistics on the retail trade, which put
down the figures in black and white. Between the constitutional 1941:
peddler, the owner of a small sari-sari store, to the operator of a
department store or, a supermarket is so much a part of day-to- convention year (1935), when the fear of alien domination and
day existence. control of the retail trade already filled the minds of our leaders Filipino .............................................
with fears and misgivings, and the year of the enactment of the
nationalization of the retail trade act (1954), official statistics Chinese ..............................................
b. The alien retailer's trait. —
unmistakably point out to the ever-increasing dominance and
control by the alien of the retail trade, as witness the following Others ...............................................
The alien retailer must have started plying his trades in this tables:
country in the bigger centers of population (Time there was when 1947:
he was unknown in provincial towns and villages). Slowly but
gradually be invaded towns and villages; now he predominates in Assets Filipino .............................................
the cities and big centers of population. He even pioneers, in far Year and Retailers No.-
away nooks where the beginnings of community life appear, Pesos
Nationality Establishments Chinese ...........................................
ministering to the daily needs of the residents and purchasing
1941:
their agricultural produce for sale in the towns. It is an undeniable Others ..............................................
fact that in many communities the alien has replaced the native Filipino .......... 106,671 200,323,138
5
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
1948: (Census)
Filipino .............................................
Chinese .............................................
Others ..............................................
1949:
Filipino .............................................
Chinese ..............................................
Others ..............................................
1951:
Filipino .............................................
Chinese .............................................
Others ...............................................
(Estimated Assets and Gross Sales of Retail
Establishments, By Year and Nationality of Owners,
Benchmark: 1948 Census, issued by the Bureau of
Census and Statistics, Department of Commerce and
Industry; pp. 18-19 of Answer.)
The above statistics do not include corporations and partnerships,
while the figures on Filipino establishments already include mere
market vendors, whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests
and gross sales, alien participation has steadily increased during
the years. It is true, of course, that Filipinos have the edge in the
number of retailers, but aliens more than make up for the
numerical gap through their assests and gross sales which average
between six and seven times those of the very many Filipino
retailers. Numbers in retailers, here, do not imply superiority; the
alien invests more capital, buys and sells six to seven times more,
and gains much more. The same official report, pointing out to the
known predominance of foreign elements in the retail trade,
remarks that the Filipino retailers were largely engaged in minor
retailer enterprises. As observed by respondents, the native
investment is thinly spread, and the Filipino retailer is practically
helpless in matters of capital, credit, price and supply.
d. Alien control and threat, subject of apprehension in
Constitutional convention. —
It is this domination and control, which we believe has been
sufficiently shown to exist, that is the legislature's target in the
enactment of the disputed nationalization would never have been
adopted. The framers of our Constitution also believed in the
existence of this alien dominance and control when they
approved a resolution categorically declaring among other things,
that "it is the sense of the Convention that the public interest
requires the nationalization of the retail trade; . . . ." (II Aruego,
The Framing of the Philippine Constitution, 662-663, quoted on
page 67 of Petitioner.) That was twenty-two years ago; and the
events since then have not been either pleasant or comforting.
Dean Sinco of the University of the Philippines College of Law,
commenting on the patrimony clause of the Preamble opines that
the fathers of our Constitution were merely translating the
general preoccupation of Filipinos "of the dangers from alien
interests that had already brought under their control the
commercial and other economic activities of the country" (Sinco,
Phil. Political Law, 10th ed., p. 114); and analyzing the concern of
the members of the constitutional convention for the economic
life of the citizens, in connection with the nationalistic provisions
of the Constitution, he says:
But there has been a general feeling that alien
dominance over the economic life of the country is not
desirable and that if such a situation should remain,
political independence alone is no guarantee to
national stability and strength. Filipino private capital is
not big enough to wrest from alien hands the control
of the national economy. Moreover, it is but of recent
formation and hence, largely inexperienced, timid and
hesitant. Under such conditions, the government as
the instrumentality of the national will, has to step in
and assume the initiative, if not the leadership, in the
struggle for the economic freedom of the nation in
somewhat the same way that it did in the crusade for
political freedom. Thus . . . it (the Constitution)
envisages an organized movement for the protection
of the nation not only against the possibilities of armed
invasion but also against its economic subjugation by
alien interests in the economic field. (Phil. Political Law
by Sinco, 10th ed., p. 476.)
Belief in the existence of alien control and predominance is felt in
other quarters. Filipino businessmen, manufacturers and
producers believe so; they fear the dangers coming from alien
control, and they express sentiments of economic independence.
Witness thereto is Resolution No. 1, approved on July 18, 1953, of
the Fifth National convention of Filipino Businessmen, and a
similar resolution, approved on March 20, 1954, of the Second
National Convention of Manufacturers and Producers. The man in
TROPANG POTCHI
the street also believes, and fears, alien predominance and
control; so our newspapers, which have editorially pointed out
not only to control but to alien stranglehold. We, therefore, find
alien domination and control to be a fact, a reality proved by
official statistics, and felt by all the sections and groups that
compose the Filipino community.
e. Dangers of alien control and dominance in retail. —
But the dangers arising from alien participation in the retail trade
does not seem to lie in the predominance alone; there is a
prevailing feeling that such predominance may truly endanger the
national interest. With ample capital, unity of purpose and action
and thorough organization, alien retailers and merchants can act
in such complete unison and concert on such vital matters as the
fixing of prices, the determination of the amount of goods or
articles to be made available in the market, and even the choice
of the goods or articles they would or would not patronize or
distribute, that fears of dislocation of the national economy and
of the complete subservience of national economy and of the
consuming public are not entirely unfounded. Nationals,
producers and consumers alike can be placed completely at their
mercy. This is easily illustrated. Suppose an article of daily use is
desired to be prescribed by the aliens, because the producer or
importer does not offer them sufficient profits, or because a new
competing article offers bigger profits for its introduction. All that
aliens would do is to agree to refuse to sell the first article,
eliminating it from their stocks, offering the new one as a
substitute. Hence, the producers or importers of the prescribed
article, or its consumers, find the article suddenly out of the
prescribed article, or its consumers, find the article suddenly out
of circulation. Freedom of trade is thus curtailed and free
enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the
pernicious influences of alien domination. Grave abuses have
characterized the exercise of the retail trade by aliens. It is a fact
within judicial notice, which courts of justice may not properly
overlook or ignore in the interests of truth and justice, that there
exists a general feeling on the part of the public that alien
participation in the retail trade has been attended by a pernicious
and intolerable practices, the mention of a few of which would
suffice for our purposes; that at some time or other they have
cornered the market of essential commodities, like corn and rice,
creating artificial scarcities to justify and enhance profits to
unreasonable proportions; that they have hoarded essential foods
to the inconvenience and prejudice of the consuming public, so
much so that the Government has had to establish the National
Rice and Corn Corporation to save the public from their
continuous hoarding practices and tendencies; that they have
violated price control laws, especially on foods and essential
commodities, such that the legislature had to enact a law (Sec. 9,
Republic Act No. 1168), authorizing their immediate and
6
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
automatic deportation for price control convictions; that they
have secret combinations among themselves to control prices,
cheating the operation of the law of supply and demand; that
they have connived to boycott honest merchants and traders who
would not cater or yield to their demands, in unlawful restraint of
freedom of trade and enterprise. They are believed by the public
to have evaded tax laws, smuggled goods and money into and out
of the land, violated import and export prohibitions, control laws
and the like, in derision and contempt of lawful authority. It is also
believed that they have engaged in corrupting public officials with
fabulous bribes, indirectly causing the prevalence of graft and
corruption in the Government. As a matter of fact appeals to
unscrupulous aliens have been made both by the Government
and by their own lawful diplomatic representatives, action which
impliedly admits a prevailing feeling about the existence of many
of the above practices.
The circumstances above set forth create well founded fears that
worse things may come in the future. The present dominance of
the alien retailer, especially in the big centers of population,
therefore, becomes a potential source of danger on occasions of
war or other calamity. We do not have here in this country
isolated groups of harmless aliens retailing goods among
nationals; what we have are well organized and powerful groups
that dominate the distribution of goods and commodities in the
communities and big centers of population. They owe no
allegiance or loyalty to the State, and the State cannot rely upon
them in times of crisis or emergency. While the national holds his
life, his person and his property subject to the needs of his
country, the alien may even become the potential enemy of the
State.
f. Law enacted in interest of national economic survival and
security. —
We are fully satisfied upon a consideration of all the facts and
circumstances that the disputed law is not the product of racial
hostility, prejudice or discrimination, but the expression of the
legitimate desire and determination of the people, thru their
authorized representatives, to free the nation from the economic
situation that has unfortunately been saddled upon it rightly or
wrongly, to its disadvantage. The law is clearly in the interest of
the public, nay of the national security itself, and indisputably falls
within the scope of police power, thru which and by which the
State insures its existence and security and the supreme welfare
of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. — The next
question that now poses solution is, Does the law deny the equal
protection of the laws? As pointed out above, the mere fact of
alienage is the root and cause of the distinction between the alien
and the national as a trader. The alien resident owes allegiance to
the country of his birth or his adopted country; his stay here is for
personal convenience; he is attracted by the lure of gain and
profit. His aim or purpose of stay, we admit, is neither illegitimate
nor immoral, but he is naturally lacking in that spirit of loyalty and
enthusiasm for this country where he temporarily stays and
makes his living, or of that spirit of regard, sympathy and
consideration for his Filipino customers as would prevent him
from taking advantage of their weakness and exploiting them. The
faster he makes his pile, the earlier can the alien go back to his
beloved country and his beloved kin and countrymen. The
experience of the country is that the alien retailer has shown such
utter disregard for his customers and the people on whom he
makes his profit, that it has been found necessary to adopt the
legislation, radical as it may seem.
Another objection to the alien retailer in this country is that he
never really makes a genuine contribution to national income and
wealth. He undoubtedly contributes to general distribution, but
the gains and profits he makes are not invested in industries that
would help the country's economy and increase national wealth.
The alien's interest in this country being merely transient and
temporary, it would indeed be ill-advised to continue entrusting
the very important function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution,
as already pointed out above, their secret manipulations of stocks
of commodities and prices, their utter disregard of the welfare of
their customers and of the ultimate happiness of the people of
the nation of which they are mere guests, which practices,
manipulations and disregard do not attend the exercise of the
trade by the nationals, show the existence of real and actual,
positive and fundamental differences between an alien and a
national which fully justify the legislative classification adopted in
the retail trade measure. These differences are certainly a valid
reason for the State to prefer the national over the alien in the
retail trade. We would be doing violence to fact and reality were
we to hold that no reason or ground for a legitimate distinction
can be found between one and the other.
b. Difference in alien aims and purposes sufficient basis for
distinction. —
The above objectionable characteristics of the exercise of the
retail trade by the aliens, which are actual and real, furnish
sufficient grounds for legislative classification of retail traders into
nationals and aliens. Some may disagree with the wisdom of the
legislature's classification. To this we answer, that this is the
prerogative of the law-making power. Since the Court finds that
the classification is actual, real and reasonable, and all persons of
one class are treated alike, and as it cannot be said that the
TROPANG POTCHI
classification is patently unreasonable and unfounded, it is in duty
bound to declare that the legislature acted within its legitimate
prerogative and it can not declare that the act transcends the limit
of equal protection established by the Constitution.
Broadly speaking, the power of the legislature to make
distinctions and classifications among persons is not curtailed or
denied by the equal protection of the laws clause. The legislative
power admits of a wide scope of discretion, and a law can be
violative of the constitutional limitation only when the
classification is without reasonable basis. In addition to the
authorities we have earlier cited, we can also refer to the case
of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which
clearly and succinctly defined the application of equal protection
clause to a law sought to be voided as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth
Amendment does not take from the state the power to
classify in the adoption of police laws, but admits of
the exercise of the wide scope of discretion in that
regard, and avoids what is done only when it is without
any reasonable basis, and therefore is purely arbitrary.
2. A classification having some reasonable basis does
not offend against that clause merely because it is not
made with mathematical nicety, or because in practice
it results in some inequality. 3. When the classification
in such a law is called in question, if any state of facts
reasonably can be conceived that would sustain it, the
existence of that state of facts at the time the law was
enacted must be assumed. 4. One who assails the
classification in such a law must carry the burden of
showing that it does not rest upon any reasonable
basis but is essentially arbitrary."
c. Authorities recognizing citizenship as basis for classification. —
The question as to whether or not citizenship is a legal and valid
ground for classification has already been affirmatively decided in
this jurisdiction as well as in various courts in the United States. In
the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the
validity of Act No. 2761 of the Philippine Legislature was in issue,
because of a condition therein limiting the ownership of vessels
engaged in coastwise trade to corporations formed by citizens of
the Philippine Islands or the United States, thus denying the right
to aliens, it was held that the Philippine Legislature did not violate
the equal protection clause of the Philippine Bill of Rights. The
legislature in enacting the law had as ultimate purpose the
encouragement of Philippine shipbuilding and the safety for these
Islands from foreign interlopers. We held that this was a valid
exercise of the police power, and all presumptions are in favor of
its constitutionality. In substance, we held that the limitation of
domestic ownership of vessels engaged in coastwise trade to
7
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
citizens of the Philippines does not violate the equal protection of
the law and due process or law clauses of the Philippine Bill of
Rights. In rendering said decision we quoted with approval the
concurring opinion of Justice Johnson in the case of Gibbons vs.
Ogden, 9 Wheat., I, as follows:
"Licensing acts, in fact, in legislation, are universally
restraining acts; as, for example, acts licensing gaming
houses, retailers of spirituous liquors, etc. The act, in
this instance, is distinctly of that character, and forms
part of an extensive system, the object of which is to
encourage American shipping, and place them on an
equal footing with the shipping of other nations.
Almost every commercial nation reserves to its own
subjects a monopoly of its coasting trade; and a
countervailing privilege in favor of American shipping is
contemplated, in the whole legislation of the United
States on this subject. It is not to give the vessel an
American character, that the license is granted; that
effect has been correctly attributed to the act of her
enrollment. But it is to confer on her American
privileges, as contra distinguished from foreign; and to
preserve the Government from fraud by foreigners; in
surreptitiously intruding themselves into the American
commercial marine, as well as frauds upon the revenue
in the trade coastwise, that this whole system is
projected."
The rule in general is as follows:
Aliens are under no special constitutional protection
which forbids a classification otherwise justified simply
because the limitation of the class falls along the lines
of nationality. That would be requiring a higher degree
of protection for aliens as a class than for similar
classes than for similar classes of American citizens.
Broadly speaking, the difference in status between
citizens and aliens constitutes a basis for reasonable
classification in the exercise of police power. (2 Am.,
Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a
statute on the licensing of hawkers and peddlers, which provided
that no one can obtain a license unless he is, or has declared his
intention, to become a citizen of the United States, was held valid,
for the following reason: It may seem wise to the legislature to
limit the business of those who are supposed to have regard for
the welfare, good order and happiness of the community, and the
court cannot question this judgment and conclusion.
In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which
prevented certain persons, among them aliens, from engaging in
the traffic of liquors, was found not to be the result of race
hatred, or in hospitality, or a deliberate purpose to discriminate,
but was based on the belief that an alien cannot be sufficiently
acquainted with "our institutions and our life as to enable him to
appreciate the relation of this particular business to our entire
social fabric", and was not, therefore, invalid. In Ohio ex
rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed. 115 (1926), the
U.S. Supreme Court had under consideration an ordinance of the
city of Cincinnati prohibiting the issuance of licenses (pools and
billiard rooms) to aliens. It held that plainly irrational
discrimination against aliens is prohibited, but it does not follow
that alien race and allegiance may not bear in some instances
such a relation to a legitimate object of legislation as to be made
the basis of permitted classification, and that it could not state
that the legislation is clearly wrong; and that latitude must be
allowed for the legislative appraisement of local conditions and
for the legislative choice of methods for controlling an
apprehended evil. The case of State vs. Carrol, 124 N. E. 129
(Ohio, 1919) is a parallel case to the one at bar. In Asakura vs. City
of Seattle, 210 P. 30 (Washington, 1922), the business of pawn
brooking was considered as having tendencies injuring public
interest, and limiting it to citizens is within the scope of police
power. A similar statute denying aliens the right to engage in
auctioneering was also sustained in Wright vs. May, L.R.A., 1915
P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F.
340 (Oregon, 1924), the court said that aliens are judicially known
to have different interests, knowledge, attitude, psychology and
loyalty, hence the prohibitions of issuance of licenses to them for
the business of pawnbroker, pool, billiard, card room, dance hall,
is not an infringement of constitutional rights. In Templar vs.
Michigan State Board of Examiners, 90 N.W. 1058 (Michigan,
1902), a law prohibiting the licensing of aliens as barbers was held
void, but the reason for the decision was the court's findings that
the exercise of the business by the aliens does not in any way
affect the morals, the health, or even the convenience of the
community. In Takahashi vs. Fish and Game Commission, 92 L. ed.
1479 (1947), a California statute banning the issuance of
commercial fishing licenses to person ineligible to citizenship was
held void, because the law conflicts with Federal power over
immigration, and because there is no public interest in the mere
claim of ownership of the waters and the fish in them, so there
was no adequate justification for the discrimination. It further
added that the law was the outgrowth of antagonism toward the
persons of Japanese ancestry. However, two Justices dissented on
the theory that fishing rights have been treated traditionally as
natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed.
257 (Pennsylvania, 1897), a state law which imposed a tax on
every employer of foreign-born unnaturalized male persons over
21 years of age, was declared void because the court found that
there was no reason for the classification and the tax was an
arbitrary deduction from the daily wage of an employee.
d. Authorities contra explained. —
TROPANG POTCHI
It is true that some decisions of the Federal court and of the State
courts in the United States hold that the distinction between
aliens and citizens is not a valid ground for classification. But in
this decision the laws declared invalid were found to be either
arbitrary, unreasonable or capricious, or were the result or
product of racial antagonism and hostility, and there was no
question of public interest involved or pursued. In Yu Cong Eng vs.
Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court
declared invalid a Philippine law making unlawful the keeping of
books of account in any language other than English, Spanish or
any other local dialect, but the main reasons for the decisions are:
(1) that if Chinese were driven out of business there would be no
other system of distribution, and (2) that the Chinese would fall
prey to all kinds of fraud, because they would be deprived of their
right to be advised of their business and to direct its conduct. The
real reason for the decision, therefore, is the court's belief that no
public benefit would be derived from the operations of the law
and on the other hand it would deprive Chinese of something
indispensable for carrying on their business. In Yick Wo vs.
Hopkins, 30 L. ed 220 (1885) an ordinance conferring powers on
officials to withhold consent in the operation of laundries both as
to persons and place, was declared invalid, but the court said that
the power granted was arbitrary, that there was no reason for the
discrimination which attended the administration and
implementation of the law, and that the motive thereof was mere
racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900),
a law prohibiting aliens to engage as hawkers and peddlers was
declared void, because the discrimination bore no reasonable and
just relation to the act in respect to which the classification was
proposed.
The case at bar is radically different, and the facts make them so.
As we already have said, aliens do not naturally possess the
sympathetic consideration and regard for the customers with
whom they come in daily contact, nor the patriotic desire to help
bolster the nation's economy, except in so far as it enhances their
profit, nor the loyalty and allegiance which the national owes to
the land. These limitations on the qualifications of the aliens have
been shown on many occasions and instances, especially in times
of crisis and emergency. We can do no better than borrow the
language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home
the reality and significance of the distinction between the alien
and the national, thus:
. . . . It may be judicially known, however, that alien
coming into this country are without the intimate
knowledge of our laws, customs, and usages that our
own people have. So it is likewise known that certain
classes of aliens are of different psychology from our
fellow countrymen. Furthermore, it is natural and
reasonable to suppose that the foreign born, whose
allegiance is first to their own country, and whose
ideals of governmental environment and control have
8
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
been engendered and formed under entirely different
regimes and political systems, have not the same
inspiration for the public weal, nor are they as well
disposed toward the United States, as those who by
citizenship, are a part of the government itself. Further
enlargement, is unnecessary. I have said enough so
that obviously it cannot be affirmed with absolute
confidence that the Legislature was without plausible
reason for making the classification, and therefore
appropriate discriminations against aliens as it relates
to the subject of legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by
legislature decisive. —
We now come to due process as a limitation on the exercise of
the police power. It has been stated by the highest authority in
the United States that:
. . . . And the guaranty of due process, as has often
been held, demands only that the law shall not be
unreasonable, arbitrary or capricious, and that the
means selected shall have a real and substantial
relation to the subject sought to be attained. . . . .
xxx     xxx     xxx
So far as the requirement of due process is concerned
and in the absence of other constitutional restriction a
state is free to adopt whatever economic policy may
reasonably be deemed to promote public welfare, and
to enforce that policy by legislation adapted to its
purpose. The courts are without authority either to
declare such policy, or, when it is declared by the
legislature, to override it. If the laws passed are seen to
have a reasonable relation to a proper legislative
purpose, and are neither arbitrary nor discriminatory,
the requirements of due process are satisfied, and
judicial determination to that effect renders a
court functus officio. . . . (Nebbia vs. New York, 78 L.
ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the
word "reasonable" in considering the scope of the
police power in a constitutional sense, for the test
used to determine the constitutionality of the means
employed by the legislature is to inquire whether the
restriction it imposes on rights secured to individuals
by the Bill of Rights are unreasonable, and not whether
it imposes any restrictions on such rights. . . .
xxx     xxx     xxx
. . . . A statute to be within this power must also be
reasonable in its operation upon the persons whom it
affects, must not be for the annoyance of a particular
class, and must not be unduly oppressive. (11 Am. Jur.
Sec. 302., 1:1)- 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also
held:
. . . . To justify the state in thus interposing its authority
in behalf of the public, it must appear, first, that the
interests of the public generally, as distinguished from
those of a particular class, require such interference;
and second, that the means are reasonably necessary
for the accomplishment of the purpose, and not
unduly oppressive upon individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR,
389, 395, fixes this test of constitutionality:
In determining whether a given act of the Legislature,
passed in the exercise of the police power to regulate
the operation of a business, is or is not constitutional,
one of the first questions to be considered by the court
is whether the power as exercised has a sufficient
foundation in reason in connection with the matter
involved, or is an arbitrary, oppressive, and capricious
use of that power, without substantial relation to the
health, safety, morals, comfort, and general welfare of
the public.
b. Petitioner's argument considered. —
Petitioner's main argument is that retail is a common, ordinary
occupation, one of those privileges long ago recognized as
essential to the orderly pursuant of happiness by free men; that it
is a gainful and honest occupation and therefore beyond the
power of the legislature to prohibit and penalized. This arguments
overlooks fact and reality and rests on an incorrect assumption
and premise, i.e., that in this country where the occupation is
engaged in by petitioner, it has been so engaged by him, by the
alien in an honest creditable and unimpeachable manner, without
harm or injury to the citizens and without ultimate danger to their
economic peace, tranquility and welfare. But the Legislature has
found, as we have also found and indicated, that the privilege has
TROPANG POTCHI
been so grossly abused by the alien, thru the illegitimate use of
pernicious designs and practices, that he now enjoys a
monopolistic control of the occupation and threatens a deadly
stranglehold on the nation's economy endangering the national
security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by
petitioner, which overlooks and ignores the facts and
circumstances, but this, Is the exclusion in the future of aliens
from the retail trade unreasonable. Arbitrary capricious, taking
into account the illegitimate and pernicious form and manner in
which the aliens have heretofore engaged therein? As thus
correctly stated the answer is clear. The law in question is deemed
absolutely necessary to bring about the desired legislative
objective, i.e., to free national economy from alien control and
dominance. It is not necessarily unreasonable because it affects
private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test
of reasonableness of a law is the appropriateness or adequacy
under all circumstances of the means adopted to carry out its
purpose into effect (Id.) Judged by this test, disputed legislation,
which is not merely reasonable but actually necessary, must be
considered not to have infringed the constitutional limitation of
reasonableness.
The necessity of the law in question is explained in the
explanatory note that accompanied the bill, which later was
enacted into law:
This bill proposes to regulate the retail business. Its
purpose is to prevent persons who are not citizens of
the Philippines from having a strangle hold upon our
economic life. If the persons who control this vital
artery of our economic life are the ones who owe no
allegiance to this Republic, who have no profound
devotion to our free institutions, and who have no
permanent stake in our people's welfare, we are not
really the masters of our destiny. All aspects of our life,
even our national security, will be at the mercy of
other people.
In seeking to accomplish the foregoing purpose, we do
not propose to deprive persons who are not citizens of
the Philippines of their means of livelihood. While this
bill seeks to take away from the hands of persons who
are not citizens of the Philippines a power that can be
wielded to paralyze all aspects of our national life and
endanger our national security it respects existing
rights.
The approval of this bill is necessary for our national
survival.
9
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
If political independence is a legitimate aspiration of a people,
then economic independence is none the less legitimate.
Freedom and liberty are not real and positive if the people are
subject to the economic control and domination of others,
especially if not of their own race or country. The removal and
eradication of the shackles of foreign economic control and
domination, is one of the noblest motives that a national
legislature may pursue. It is impossible to conceive that legislation
that seeks to bring it about can infringe the constitutional
limitation of due process. The attainment of a legitimate
aspiration of a people can never be beyond the limits of legislative
authority.
c. Law expressly held by Constitutional Convention to be within
the sphere of legislative action. —
The framers of the Constitution could not have intended to
impose the constitutional restrictions of due process on the
attainment of such a noble motive as freedom from economic
control and domination, thru the exercise of the police power.
The fathers of the Constitution must have given to the legislature
full authority and power to enact legislation that would promote
the supreme happiness of the people, their freedom and liberty.
On the precise issue now before us, they expressly made their
voice clear; they adopted a resolution expressing their belief that
the legislation in question is within the scope of the legislative
power. Thus they declared the their Resolution:
That it is the sense of the Convention that the public
interest requires the nationalization of retail trade; but
it abstain from approving the amendment introduced
by the Delegate for Manila, Mr. Araneta, and others on
this matter because it is convinced that the National
Assembly is authorized to promulgate a law which
limits to Filipino and American citizens the privilege to
engage in the retail trade. (11 Aruego, The Framing of
the Philippine Constitution, quoted on pages 66 and 67
of the Memorandum for the Petitioner.)
It would do well to refer to the nationalistic tendency manifested
in various provisions of the Constitution. Thus in the preamble, a
principle objective is the conservation of the patrimony of the
nation and as corollary the provision limiting to citizens of the
Philippines the exploitation, development and utilization of its
natural resources. And in Section 8 of Article XIV, it is provided
that "no franchise, certificate, or any other form of authorization
for the operation of the public utility shall be granted except to
citizens of the Philippines." The nationalization of the retail trade
is only a continuance of the nationalistic protective policy laid
down as a primary objective of the Constitution. Can it be said
that a law imbued with the same purpose and spirit underlying
many of the provisions of the Constitution is unreasonable, invalid
and unconstitutional?
The seriousness of the Legislature's concern for the plight of the
nationals as manifested in the approval of the radical measures is,
therefore, fully justified. It would have been recreant to its duties
towards the country and its people would it view the sorry plight
of the nationals with the complacency and refuse or neglect to
adopt a remedy commensurate with the demands of public
interest and national survival. As the repository of the sovereign
power of legislation, the Legislature was in duty bound to face the
problem and meet, through adequate measures, the danger and
threat that alien domination of retail trade poses to national
economy.
d. Provisions of law not unreasonable. —
A cursory study of the provisions of the law immediately reveals
how tolerant, how reasonable the Legislature has been. The law is
made prospective and recognizes the right and privilege of those
already engaged in the occupation to continue therein during the
rest of their lives; and similar recognition of the right to continue
is accorded associations of aliens. The right or privilege is denied
to those only upon conviction of certain offenses. In the
deliberations of the Court on this case, attention was called to the
fact that the privilege should not have been denied to children
and heirs of aliens now engaged in the retail trade. Such provision
would defeat the law itself, its aims and purposes. Beside, the
exercise of legislative discretion is not subject to judicial review. It
is well settled that the Court will not inquire into the motives of
the Legislature, nor pass upon general matters of legislative
judgment. The Legislature is primarily the judge of the necessity
of an enactment or of any of its provisions, and every
presumption is in favor of its validity, and though the Court may
hold views inconsistent with the wisdom of the law, it may not
annul the legislation if not palpably in excess of the legislative
power. Furthermore, the test of the validity of a law attacked as a
violation of due process, is not its reasonableness, but its
unreasonableness, and we find the provisions are not
unreasonable. These principles also answer various other
arguments raised against the law, some of which are: that the law
does not promote general welfare; that thousands of aliens would
be thrown out of employment; that prices will increase because of
the elimination of competition; that there is no need for the
legislation; that adequate replacement is problematical; that
there may be general breakdown; that there would be
repercussions from foreigners; etc. Many of these arguments are
directed against the supposed wisdom of the law which lies solely
within the legislative prerogative; they do not import invalidity.
VIII. Alleged defect in the title of the law
TROPANG POTCHI
A subordinate ground or reason for the alleged invalidity of the
law is the claim that the title thereof is misleading or deceptive, as
it conceals the real purpose of the bill which is to nationalize the
retail business and prohibit aliens from engaging therein. The
constitutional provision which is claimed to be violated in Section
21 (1) of Article VI, which reads:
No bill which may be enacted in the law shall embrace
more than one subject which shall be expressed in the
title of the bill.
What the above provision prohibits is duplicity, that is, if its title
completely fails to appraise the legislators or the public of the
nature, scope and consequences of the law or its operation (I
Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory
consideration of the title and the provisions of the bill fails to
show the presence of duplicity. It is true that the term "regulate"
does not and may not readily and at first glance convey the idea
of "nationalization" and "prohibition", which terms express the
two main purposes and objectives of the law. But "regulate" is a
broader term than either prohibition or nationalization. Both of
these have always been included within the term regulation.
Under the title of an act to "regulate", the sale of
intoxicating liquors, the Legislature may prohibit the
sale of intoxicating liquors. (Sweet vs. City of Wabash,
41 Ind., 7; quoted in page 41 of Answer.)
Within the meaning of the Constitution requiring that
the subject of every act of the Legislature shall be
stated in the tale, the title to regulate the sale of
intoxicating liquors, etc." sufficiently expresses the
subject of an act prohibiting the sale of such liquors to
minors and to persons in the habit of getting
intoxicated; such matters being properly included
within the subject of regulating the sale. (Williams vs.
State, 48 Ind. 306, 308, quoted in p. 42 of Answer.)
The word "regulate" is of broad import, and
necessarily implies some degree of restraint and
prohibition of acts usually done in connection with the
thing to be regulated. While word regulate does not
ordinarily convey meaning of prohibit, there is no
absolute reason why it should not have such meaning
when used in delegating police power in connection
with a thing the best or only efficacious regulation of
which involves suppression. (State vs. Morton, 162 So.
718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill;
it has also been said that the title need not be an index to the
10
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
entire contents of the law (I Sutherland, Statutory Construction,
See. 4803, p. 345.) The above rule was followed the title of the
Act in question adopted the more general term "regulate" instead
of "nationalize" or "prohibit". Furthermore, the law also contains
other rules for the regulation of the retail trade which may not be
included in the terms "nationalization" or "prohibition"; so were
the title changed from "regulate" to "nationalize" or "prohibit",
there would have been many provisions not falling within the
scope of the title which would have made the Act invalid. The use
of the term "regulate", therefore, is in accord with the principle
governing the drafting of statutes, under which a simple or
general term should be adopted in the title, which would include
all other provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a
bill should be embraced in its title is to apprise the legislators of
the purposes, the nature and scope of its provisions, and prevent
the enactment into law of matters which have received the
notice, action and study of the legislators or of the public. In the
case at bar it cannot be claimed that the legislators have been
appraised of the nature of the law, especially the nationalization
and the prohibition provisions. The legislators took active interest
in the discussion of the law, and a great many of the persons
affected by the prohibitions in the law conducted a campaign
against its approval. It cannot be claimed, therefore, that the
reasons for declaring the law invalid ever existed. The objection
must therefore, be overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is
the supposed violation thereby of the Charter of the United
Nations and of the Declaration of the Human Rights adopted by
the United Nations General Assembly. We find no merit in the
Nations Charter imposes no strict or legal obligations regarding
the rights and freedom of their subjects (Hans Kelsen, The Law of
the United Nations, 1951 ed. pp. 29-32), and the Declaration of
Human Rights contains nothing more than a mere
recommendation or a common standard of achievement for all
peoples and all nations (Id. p. 39.) That such is the import of the
United Nations Charter aid of the Declaration of Human Rights
can be inferred the fact that members of the United Nations
Organizations, such as Norway and Denmark, prohibit foreigners
from engaging in retail trade, and in most nations of the world
laws against foreigners engaged in domestic trade are adopted.
The Treaty of Amity between the Republic of the Philippines and
the Republic of China of April 18, 1947 is also claimed to be
violated by the law in question. All that the treaty guarantees is
equality of treatment to the Chinese nationals "upon the same
terms as the nationals of any other country." But the nationals of
China are not discriminating against because nationals of all other
countries, except those of the United States, who are granted
special rights by the Constitution, are all prohibited from engaging
in the retail trade. But even supposing that the law infringes upon
the said treaty, the treaty is always subject to qualification or
amendment by a subsequent law (U. S. vs. Thompson, 258, Fed.
257, 260), and the same may never curtail or restrict the scope of
the police power of the State (plaston vs. Pennsylvania, 58 L. ed.
539.)
X. Conclusion
Resuming what we have set forth above we hold that the
disputed law was enacted to remedy a real actual threat and
danger to national economy posed by alien dominance and
control of the retail business and free citizens and country from
dominance and control; that the enactment clearly falls within the
scope of the police power of the State, thru which and by which it
protects its own personality and insures its security and future;
that the law does not violate the equal protection clause of the
Constitution because sufficient grounds exist for the distinction
between alien and citizen in the exercise of the occupation
regulated, nor the due process of law clause, because the law is
prospective in operation and recognizes the privilege of aliens
already engaged in the occupation and reasonably protects their
privilege; that the wisdom and efficacy of the law to carry out its
objectives appear to us to be plainly evident — as a matter of fact
it seems not only appropriate but actually necessary — and that in
any case such matter falls within the prerogative of the
Legislature, with whose power and discretion the Judicial
department of the Government may not interfere; that the
provisions of the law are clearly embraced in the title, and this
suffers from no duplicity and has not misled the legislators or the
segment of the population affected; and that it cannot be said to
be void for supposed conflict with treaty obligations because no
treaty has actually been entered into on the subject and the
police power may not be curtailed or surrendered by any treaty or
any other conventional agreement.
Some members of the Court are of the opinion that the radical
effects of the law could have been made less harsh in its impact
on the aliens. Thus it is stated that the more time should have
been given in the law for the liquidation of existing businesses
when the time comes for them to close. Our legal duty, however,
is merely to determine if the law falls within the scope of
legislative authority and does not transcend the limitations of due
process and equal protection guaranteed in the Constitution.
Remedies against the harshness of the law should be addressed to
the Legislature; they are beyond our power and jurisdiction.
The petition is hereby denied, with costs against petitioner.
TROPANG POTCHI
Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion,
Reyes, J.B.L., Endencia and Felix, JJ., concur.
Separate Opinions
PADILLA, J., concurring and dissenting:
I agree to the proposition, principle or rule that courts may not
inquire into the wisdom of an the Act passed by the Congress and
duly approved by the President of the Republic. But the rule does
not preclude courts from inquiring and determining whether the
Act offends against a provision or provisions of the Constitution. I
am satisfied that the Act assailed as violative of the due process of
law and the equal protection of the laws clauses of the
Constitution does not infringe upon them, insofar as it affects
associations, partnership or corporations, the capital of which is
not wholly owned by the citizens of the Philippines, and aliens,
who are not and have not been engaged in the retail business. I
am, however, unable to persuade myself that it does not violate
said clauses insofar as the Act applies to associations and
partnerships referred to in the Act and to aliens, who are and
have heretofore been engaged in said business. When they did
engage in the retail business there was no prohibition on or
against them to engage in it. They assumed and believed in good
faith they were entitled to engaged in the business. The Act allows
aliens to continue in business until their death or voluntary
retirement from the business or forfeiture of their license; and
corporations, associations or partnership, the capital of which is
not wholly owned by the citizens of the Philippines to continue in
the business for a period of ten years from the date of the
approval of the Act (19 June 1954) or until the expiry of term of
the existence of the association or partnership or corporation,
whichever event comes first. The prohibition on corporations, the
capital of which is not wholly owned by citizens of the Philippines,
to engage in the retail business for a period of more than ten
years from the date of the approval of the Act or beyond the term
of their corporate existence, whichever event comes first, is valid
and lawful, because the continuance of the existence of such
corporations is subject to whatever the Congress may impose
reasonably upon them by subsequent legislation.1 But the
prohibition to engage in the retail business by associations and
partnerships, the capital of which is not wholly owned by citizen
of the Philippines, after ten years from the date of the approval of
the Act, even before the end of the term of their existence as
agreed upon by the associates and partners, and by alien heirs to
whom the retail business is transmitted by the death of an alien
engaged in the business, or by his executor or administrator,
amounts to a deprivation of their property without due process of
law. To my mind, the ten-year period from the date of the
11
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
approval of the Act or until the expiration of the term of the
existence of the association and partnership, whichever event
comes first, and the six-month period granted to alien heirs of a
deceased alien, his executor or administrator, to liquidate the
business, do not cure the defect of the law, because the effect of
the prohibition is to compel them to sell or dispose of their
business. The price obtainable at such forced sale of the business
would be inadequate to reimburse and compensate the
associates or partners of the associations or partnership, and the
alien heirs of a deceased alien, engaged in the retail business for
the capital invested in it. The stock of merchandise bought and
sold at retail does not alone constitute the business. The goodwill
that the association, partnership and the alien had built up during
a long period of effort, patience and perseverance forms part of
such business. The constitutional provisions that no person shall
be deprived of his property without due process of law2 and that
no person shall be denied the equal protection of the laws3 would
have no meaning as applied to associations or partnership and
alien heirs of an alien engaged in the retail business if they were
to be compelled to sell or dispose of their business within ten
years from the date of the approval of the Act and before the end
of the term of the existence of the associations and partnership as
agreed upon by the associations and partners and within six
months after the death of their predecessor-in-interest.
The authors of the Constitution were vigilant, careful and zealous
in the safeguard of the ownership of private agricultural lands
which together with the lands of the public domain constitute the
priceless patrimony and mainstay of the nation; yet, they did not
deem it wise and prudent to deprive aliens and their heirs of such
lands.4
For these reasons, I am of the opinion that section 1 of the Act,
insofar as it compels associations and partnership referred to
therein to wind up their retail business within ten years from the
date of the approval of the Act even before the expiry of the term
of their existence as agreed upon by the associates and partners
and section 3 of the Act, insofar as it compels the aliens engaged
in the retail business in his lifetime his executor or administrator,
to liquidate the business, are invalid, for they violate the due
process of law and the equal protection of the laws clauses of the
Constitution.
G.R. No. L-7859        December 22, 1955
WALTER LUTZ, as Judicial Administrator of the Intestate Estate
of the deceased Antonio Jayme Ledesma, plaintiff-appellant, 
vs.
J. ANTONIO ARANETA, as the Collector of Internal
Revenue, defendant-appellee.
Ernesto J. Gonzaga for appellant.
Office of the Solicitor General Ambrosio Padilla, First Assistant
Solicitor General Guillermo E. Torres and Solicitor Felicisimo R.
Rosete for appellee.
 
REYES, J.B L., J.:
This case was initiated in the Court of First Instance of Negros
Occidental to test the legality of the taxes imposed by
Commonwealth Act No. 567, otherwise known as the Sugar
Adjustment Act.
Promulgated in 1940, the law in question opens (section 1) with a
declaration of emergency, due to the threat to our industry by the
imminent imposition of export taxes upon sugar as provided in
the Tydings-McDuffe Act, and the "eventual loss of its preferential
position in the United States market"; wherefore, the national
policy was expressed "to obtain a readjustment of the benefits
derived from the sugar industry by the component elements
thereof" and "to stabilize the sugar industry so as to prepare it for
the eventuality of the loss of its preferential position in the United
States market and the imposition of the export taxes."
In section 2, Commonwealth Act 567 provides for an increase of
the existing tax on the manufacture of sugar, on a graduated
basis, on each picul of sugar manufactured; while section 3 levies
on owners or persons in control of lands devoted to the
cultivation of sugar cane and ceded to others for a consideration,
on lease or otherwise —
a tax equivalent to the difference between the money
value of the rental or consideration collected and the
amount representing 12 per centum of the assessed
value of such land.
According to section 6 of the law —
SEC. 6. All collections made under this Act shall accrue
to a special fund in the Philippine Treasury, to be
known as the 'Sugar Adjustment and Stabilization
Fund,' and shall be paid out only for any or all of the
following purposes or to attain any or all of the
following objectives, as may be provided by law.
First, to place the sugar industry in a position to
maintain itself, despite the gradual loss of the
preferntial position of the Philippine sugar in the
United States market, and ultimately to insure its
TROPANG POTCHI
continued existence notwithstanding the loss of that
market and the consequent necessity of meeting
competition in the free markets of the world;
Second, to readjust the benefits derived from the
sugar industry by all of the component elements
thereof — the mill, the landowner, the planter of the
sugar cane, and the laborers in the factory and in the
field — so that all might continue profitably to engage
therein;lawphi1.net
Third, to limit the production of sugar to areas more
economically suited to the production thereof; and
Fourth, to afford labor employed in the industry a
living wage and to improve their living and working
conditions: Provided, That the President of the
Philippines may, until the adjourment of the next
regular session of the National Assembly, make the
necessary disbursements from the fund herein created
(1) for the establishment and operation of sugar
experiment station or stations and the undertaking of
researchers (a) to increase the recoveries of the
centrifugal sugar factories with the view of reducing
manufacturing costs, (b) to produce and propagate
higher yielding varieties of sugar cane more adaptable
to different district conditions in the Philippines, (c) to
lower the costs of raising sugar cane, (d) to improve
the buying quality of denatured alcohol from molasses
for motor fuel, (e) to determine the possibility of
utilizing the other by-products of the industry, (f) to
determine what crop or crops are suitable for rotation
and for the utilization of excess cane lands, and (g) on
other problems the solution of which would help
rehabilitate and stabilize the industry, and (2) for the
improvement of living and working conditions in sugar
mills and sugar plantations, authorizing him to
organize the necessary agency or agencies to take
charge of the expenditure and allocation of said funds
to carry out the purpose hereinbefore enumerated,
and, likewise, authorizing the disbursement from the
fund herein created of the necessary amount or
amounts needed for salaries, wages, travelling
expenses, equipment, and other sundry expenses of
said agency or agencies.
Plaintiff, Walter Lutz, in his capacity as Judicial Administrator of
the Intestate Estate of Antonio Jayme Ledesma, seeks to recover
from the Collector of Internal Revenue the sum of P14,666.40
paid by the estate as taxes, under section 3 of the Act, for the
crop years 1948-1949 and 1949-1950; alleging that such tax is
unconstitutional and void, being levied for the aid and support of
12
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
the sugar industry exclusively, which in plaintiff's opinion is not a
public purpose for which a tax may be constitutioally levied. The
action having been dismissed by the Court of First Instance, the
plaintifs appealed the case directly to this Court (Judiciary Act,
section 17).
The basic defect in the plaintiff's position is his assumption that
the tax provided for in Commonwealth Act No. 567 is a pure
exercise of the taxing power. Analysis of the Act, and particularly
of section 6 (heretofore quoted in full), will show that the tax is
levied with a regulatory purpose, to provide means for the
rehabilitation and stabilization of the threatened sugar industry.
In other words, the act is primarily an exercise of the police
power.
This Court can take judicial notice of the fact that sugar
production is one of the great industries of our nation, sugar
occupying a leading position among its export products; that it
gives employment to thousands of laborers in fields and factories;
that it is a great source of the state's wealth, is one of the
important sources of foreign exchange needed by our
government, and is thus pivotal in the plans of a regime
committed to a policy of currency stability. Its promotion,
protection and advancement, therefore redounds greatly to the
general welfare. Hence it was competent for the legislature to
find that the general welfare demanded that the sugar industry
should be stabilized in turn; and in the wide field of its police
power, the lawmaking body could provide that the distribution of
benefits therefrom be readjusted among its components to
enable it to resist the added strain of the increase in taxes that it
had to sustain (Sligh vs. Kirkwood, 237 U. S. 52, 59 L. Ed. 835;
Johnson vs. State ex rel. Marey, 99 Fla. 1311, 128 So. 853; Maxcy
Inc. vs. Mayo, 103 Fla. 552, 139 So. 121).
As stated in Johnson vs. State ex rel. Marey, with reference to the
citrus industry in Florida —
The protection of a large industry constituting one of
the great sources of the state's wealth and therefore
directly or indirectly affecting the welfare of so great a
portion of the population of the State is affected to
such an extent by public interests as to be within the
police power of the sovereign. (128 Sp. 857).
Once it is conceded, as it must, that the protection and promotion
of the sugar industry is a matter of public concern, it follows that
the Legislature may determine within reasonable bounds what is
necessary for its protection and expedient for its promotion. Here,
the legislative discretion must be allowed fully play, subject only
to the test of reasonableness; and it is not contended that the
means provided in section 6 of the law (above quoted) bear no
relation to the objective pursued or are oppressive in character. If
objective and methods are alike constitutionally valid, no reason is
seen why the state may not levy taxes to raise funds for their
prosecution and attainment. Taxation may be made the
implement of the state's police power (Great Atl. & Pac. Tea Co.
vs. Grosjean, 301 U. S. 412, 81 L. Ed. 1193; U. S. vs. Butler, 297 U.
S. 1, 80 L. Ed. 477; M'Culloch vs. Maryland, 4 Wheat. 316, 4 L. Ed.
579).
That the tax to be levied should burden the sugar producers
themselves can hardly be a ground of complaint; indeed, it
appears rational that the tax be obtained precisely from those
who are to be benefited from the expenditure of the funds
derived from it. At any rate, it is inherent in the power to tax that
a state be free to select the subjects of taxation, and it has been
repeatedly held that "inequalities which result from a singling out
of one particular class for taxation, or exemption infringe no
constitutional limitation" (Carmichael vs. Southern Coal & Coke
Co., 301 U. S. 495, 81 L. Ed. 1245, citing numerous authorities, at
p. 1251).
From the point of view we have taken it appears of no moment
that the funds raised under the Sugar Stabilization Act, now in
question, should be exclusively spent in aid of the sugar industry,
since it is that very enterprise that is being protected. It may be
that other industries are also in need of similar protection; that
the legislature is not required by the Constitution to adhere to a
policy of "all or none." As ruled in Minnesota ex rel. Pearson vs.
Probate Court, 309 U. S. 270, 84 L. Ed. 744, "if the law presumably
hits the evil where it is most felt, it is not to be overthrown
because there are other instances to which it might have been
applied;" and that "the legislative authority, exerted within its
proper field, need not embrace all the evils within its reach" (N. L.
R. B. vs. Jones & Laughlin Steel Corp. 301 U. S. 1, 81 L. Ed. 893).
Even from the standpoint that the Act is a pure tax measure, it
cannot be said that the devotion of tax money to experimental
stations to seek increase of efficiency in sugar production,
utilization of by-products and solution of allied problems, as well
as to the improvements of living and working conditions in sugar
mills or plantations, without any part of such money being
channeled directly to private persons, constitutes expenditure of
tax money for private purposes, (compare Everson vs. Board of
Education, 91 L. Ed. 472, 168 ALR 1392, 1400).
The decision appealed from is affirmed, with costs against
appellant. So ordered.
G.R. No. 78742 July 14, 1989
ASSOCIATION OF SMALL LANDOWNERS IN THE PHILIPPINES,
INC., JUANITO D. GOMEZ, GERARDO B. ALARCIO, FELIPE A.
TROPANG POTCHI
GUICO, JR., BERNARDO M. ALMONTE, CANUTO RAMIR B.
CABRITO, ISIDRO T. GUICO, FELISA I. LLAMIDO, FAUSTO J. SALVA,
REYNALDO G. ESTRADA, FELISA C. BAUTISTA, ESMENIA J. CABE,
TEODORO B. MADRIAGA, AUREA J. PRESTOSA, EMERENCIANA J.
ISLA, FELICISIMA C. ARRESTO, CONSUELO M. MORALES,
BENJAMIN R. SEGISMUNDO, CIRILA A. JOSE & NAPOLEON S.
FERRER, petitioners, 
vs.
HONORABLE SECRETARY OF AGRARIAN REFORM, respondent.
G.R. No. 79310 July 14, 1989
ARSENIO AL. ACUNA, NEWTON JISON, VICTORINO FERRARIS,
DENNIS JEREZA, HERMINIGILDO GUSTILO, PAULINO D.
TOLENTINO and PLANTERS' COMMITTEE, INC., Victorias Mill
District, Victorias, Negros Occidental, petitioners, 
vs.
JOKER ARROYO, PHILIP E. JUICO and PRESIDENTIAL AGRARIAN
REFORM COUNCIL, respondents.
G.R. No. 79744 July 14, 1989
INOCENTES PABICO, petitioner, 
vs.
HON. PHILIP E. JUICO, SECRETARY OF THE DEPARTMENT OF
AGRARIAN REFORM, HON. JOKER ARROYO, EXECUTIVE
SECRETARY OF THE OFFICE OF THE PRESIDENT, and Messrs.
SALVADOR TALENTO, JAIME ABOGADO, CONRADO AVANCENA
and ROBERTO TAAY, respondents.
G.R. No. 79777 July 14, 1989
NICOLAS S. MANAAY and AGUSTIN HERMANO, JR., petitioners, 
vs.
HON. PHILIP ELLA JUICO, as Secretary of Agrarian Reform, and
LAND BANK OF THE PHILIPPINES,respondents.
CRUZ, J.:
In ancient mythology, Antaeus was a terrible giant who blocked
and challenged Hercules for his life on his way to Mycenae after
performing his eleventh labor. The two wrestled mightily and
Hercules flung his adversary to the ground thinking him dead, but
Antaeus rose even stronger to resume their struggle. This
happened several times to Hercules' increasing amazement.
Finally, as they continued grappling, it dawned on Hercules that
Antaeus was the son of Gaea and could never die as long as any
part of his body was touching his Mother Earth. Thus forewarned,
13
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Hercules then held Antaeus up in the air, beyond the reach of the
sustaining soil, and crushed him to death.
Mother Earth. The sustaining soil. The giver of life, without whose
invigorating touch even the powerful Antaeus weakened and
died.
The cases before us are not as fanciful as the foregoing tale. But
they also tell of the elemental forces of life and death, of men and
women who, like Antaeus need the sustaining strength of the
precious earth to stay alive.
"Land for the Landless" is a slogan that underscores the acute
imbalance in the distribution of this precious resource among our
people. But it is more than a slogan. Through the brooding
centuries, it has become a battle-cry dramatizing the increasingly
urgent demand of the dispossessed among us for a plot of earth
as their place in the sun.
Recognizing this need, the Constitution in 1935 mandated the
policy of social justice to "insure the well-being and economic
security of all the people," 1 especially the less privileged. In 1973,
the new Constitution affirmed this goal adding specifically that
"the State shall regulate the acquisition, ownership, use,
enjoyment and disposition of private property and equitably
diffuse property ownership and profits." 2 Significantly, there was
also the specific injunction to "formulate and implement an
agrarian reform program aimed at emancipating the tenant from
the bondage of the soil." 3
The Constitution of 1987 was not to be outdone. Besides echoing
these sentiments, it also adopted one whole and separate Article
XIII on Social Justice and Human Rights, containing grandiose but
undoubtedly sincere provisions for the uplift of the common
people. These include a call in the following words for the
adoption by the State of an agrarian reform program:
SEC. 4. The State shall, by law, undertake an
agrarian reform program founded on the
right of farmers and regular farmworkers,
who are landless, to own directly or
collectively the lands they till or, in the case
of other farmworkers, to receive a just
share of the fruits thereof. To this end, the
State shall encourage and undertake the
just distribution of all agricultural lands,
subject to such priorities and reasonable
retention limits as the Congress may
prescribe, taking into account ecological,
developmental, or equity considerations
and subject to the payment of just
compensation. In determining retention
limits, the State shall respect the right of
small landowners. The State shall further
provide incentives for voluntary land-
sharing.
Earlier, in fact, R.A. No. 3844, otherwise known as the Agricultural
Land Reform Code, had already been enacted by the Congress of
the Philippines on August 8, 1963, in line with the above-stated
principles. This was substantially superseded almost a decade
later by P.D. No. 27, which was promulgated on October 21, 1972,
along with martial law, to provide for the compulsory acquisition
of private lands for distribution among tenant-farmers and to
specify maximum retention limits for landowners.
The people power revolution of 1986 did not change and indeed
even energized the thrust for agrarian reform. Thus, on July 17,
1987, President Corazon C. Aquino issued E.O. No. 228, declaring
full land ownership in favor of the beneficiaries of P.D. No. 27 and
providing for the valuation of still unvalued lands covered by the
decree as well as the manner of their payment. This was followed
on July 22, 1987 by Presidential Proclamation No. 131, instituting
a comprehensive agrarian reform program (CARP), and E.O. No.
229, providing the mechanics for its implementation.
Subsequently, with its formal organization, the revived Congress
of the Philippines took over legislative power from the President
and started its own deliberations, including extensive public
hearings, on the improvement of the interests of farmers. The
result, after almost a year of spirited debate, was the enactment
of R.A. No. 6657, otherwise known as the Comprehensive
Agrarian Reform Law of 1988, which President Aquino signed on
June 10, 1988. This law, while considerably changing the earlier
mentioned enactments, nevertheless gives them suppletory effect
insofar as they are not inconsistent with its provisions. 4
The above-captioned cases have been consolidated because they
involve common legal questions, including serious challenges to
the constitutionality of the several measures mentioned above.
They will be the subject of one common discussion and resolution,
The different antecedents of each case will require separate
treatment, however, and will first be explained hereunder.
G.R. No. 79777
Squarely raised in this petition is the constitutionality of P.D. No.
27, E.O. Nos. 228 and 229, and R.A. No. 6657.
The subjects of this petition are a 9-hectare riceland worked by
four tenants and owned by petitioner Nicolas Manaay and his
wife and a 5-hectare riceland worked by four tenants and owned
TROPANG POTCHI
by petitioner Augustin Hermano, Jr. The tenants were declared
full owners of these lands by E.O. No. 228 as qualified farmers
under P.D. No. 27.
The petitioners are questioning P.D. No. 27 and E.O. Nos. 228 and
229 on grounds inter alia of separation of powers, due process,
equal protection and the constitutional limitation that no private
property shall be taken for public use without just compensation.
They contend that President Aquino usurped legislative power
when she promulgated E.O. No. 228. The said measure is invalid
also for violation of Article XIII, Section 4, of the Constitution, for
failure to provide for retention limits for small landowners.
Moreover, it does not conform to Article VI, Section 25(4) and the
other requisites of a valid appropriation.
In connection with the determination of just compensation, the
petitioners argue that the same may be made only by a court of
justice and not by the President of the Philippines. They invoke
the recent cases of EPZA v. Dulay  5and Manotok v. National Food
Authority. 6 Moreover, the just compensation contemplated by
the Bill of Rights is payable in money or in cash and not in the
form of bonds or other things of value.
In considering the rentals as advance payment on the land, the
executive order also deprives the petitioners of their property
rights as protected by due process. The equal protection clause is
also violated because the order places the burden of solving the
agrarian problems on the owners only of agricultural lands. No
similar obligation is imposed on the owners of other properties.
The petitioners also maintain that in declaring the beneficiaries
under P.D. No. 27 to be the owners of the lands occupied by
them, E.O. No. 228 ignored judicial prerogatives and so violated
due process. Worse, the measure would not solve the agrarian
problem because even the small farmers are deprived of their
lands and the retention rights guaranteed by the Constitution.
In his Comment, the Solicitor General stresses that P.D. No. 27 has
already been upheld in the earlier cases ofChavez v.
Zobel,  7 Gonzales v. Estrella,  8 and Association of Rice and Corn
Producers of the Philippines, Inc. v. The National Land Reform
Council.  9 The determination of just compensation by the
executive authorities conformably to the formula prescribed
under the questioned order is at best initial or preliminary only. It
does not foreclose judicial intervention whenever sought or
warranted. At any rate, the challenge to the order is premature
because no valuation of their property has as yet been made by
the Department of Agrarian Reform. The petitioners are also not
proper parties because the lands owned by them do not exceed
the maximum retention limit of 7 hectares.
14
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Replying, the petitioners insist they are proper parties because
P.D. No. 27 does not provide for retention limits on tenanted
lands and that in any event their petition is a class suit brought in
behalf of landowners with landholdings below 24 hectares. They
maintain that the determination of just compensation by the
administrative authorities is a final ascertainment. As for the cases
invoked by the public respondent, the constitutionality of P.D. No.
27 was merely assumed in Chavez, while what was decided
in Gonzales was the validity of the imposition of martial law.
In the amended petition dated November 22, 1588, it is
contended that P.D. No. 27, E.O. Nos. 228 and 229 (except
Sections 20 and 21) have been impliedly repealed by R.A. No.
6657. Nevertheless, this statute should itself also be declared
unconstitutional because it suffers from substantially the same
infirmities as the earlier measures.
A petition for intervention was filed with leave of court on June 1,
1988 by Vicente Cruz, owner of a 1. 83- hectare land, who
complained that the DAR was insisting on the implementation of
P.D. No. 27 and E.O. No. 228 despite a compromise agreement he
had reached with his tenant on the payment of rentals. In a
subsequent motion dated April 10, 1989, he adopted the
allegations in the basic amended petition that the above-
mentioned enactments have been impliedly repealed by R.A. No.
6657.
G.R. No. 79310
The petitioners herein are landowners and sugar planters in the
Victorias Mill District, Victorias, Negros Occidental. Co-petitioner
Planters' Committee, Inc. is an organization composed of 1,400
planter-members. This petition seeks to prohibit the
implementation of Proc. No. 131 and E.O. No. 229.
The petitioners claim that the power to provide for a
Comprehensive Agrarian Reform Program as decreed by the
Constitution belongs to Congress and not the President. Although
they agree that the President could exercise legislative power
until the Congress was convened, she could do so only to enact
emergency measures during the transition period. At that, even
assuming that the interim legislative power of the President was
properly exercised, Proc. No. 131 and E.O. No. 229 would still
have to be annulled for violating the constitutional provisions on
just compensation, due process, and equal protection.
They also argue that under Section 2 of Proc. No. 131 which
provides:
Agrarian Reform Fund.-There is hereby created a special fund, to
be known as the Agrarian Reform Fund, an initial amount of FIFTY
BILLION PESOS (P50,000,000,000.00) to cover the estimated cost
of the Comprehensive Agrarian Reform Program from 1987 to
1992 which shall be sourced from the receipts of the sale of the
assets of the Asset Privatization Trust and Receipts of sale of ill-
gotten wealth received through the Presidential Commission on
Good Government and such other sources as government may
deem appropriate. The amounts collected and accruing to this
special fund shall be considered automatically appropriated for
the purpose authorized in this Proclamation the amount
appropriated is in futuro, not in esse. The money needed to cover
the cost of the contemplated expropriation has yet to be raised
and cannot be appropriated at this time.
Furthermore, they contend that taking must be simultaneous with
payment of just compensation as it is traditionally understood,
i.e., with money and in full, but no such payment is contemplated
in Section 5 of the E.O. No. 229. On the contrary, Section 6,
thereof provides that the Land Bank of the Philippines "shall
compensate the landowner in an amount to be established by the
government, which shall be based on the owner's declaration of
current fair market value as provided in Section 4 hereof, but
subject to certain controls to be defined and promulgated by the
Presidential Agrarian Reform Council." This compensation may
not be paid fully in money but in any of several modes that may
consist of part cash and part bond, with interest, maturing
periodically, or direct payment in cash or bond as may be
mutually agreed upon by the beneficiary and the landowner or as
may be prescribed or approved by the PARC.
The petitioners also argue that in the issuance of the two
measures, no effort was made to make a careful study of the
sugar planters' situation. There is no tenancy problem in the sugar
areas that can justify the application of the CARP to them. To the
extent that the sugar planters have been lumped in the same
legislation with other farmers, although they are a separate group
with problems exclusively their own, their right to equal
protection has been violated.
A motion for intervention was filed on August 27,1987 by the
National Federation of Sugarcane Planters (NASP) which claims a
membership of at least 20,000 individual sugar planters all over
the country. On September 10, 1987, another motion for
intervention was filed, this time by Manuel Barcelona, et al.,
representing coconut and riceland owners. Both motions were
granted by the Court.
NASP alleges that President Aquino had no authority to fund the
Agrarian Reform Program and that, in any event, the
appropriation is invalid because of uncertainty in the amount
appropriated. Section 2 of Proc. No. 131 and Sections 20 and 21 of
E.O. No. 229 provide for an initial appropriation of fifty billion
pesos and thus specifies the minimum rather than the maximum
TROPANG POTCHI
authorized amount. This is not allowed. Furthermore, the stated
initial amount has not been certified to by the National Treasurer
as actually available.
Two additional arguments are made by Barcelona, to wit, the
failure to establish by clear and convincing evidence the necessity
for the exercise of the powers of eminent domain, and the
violation of the fundamental right to own property.
The petitioners also decry the penalty for non-registration of the
lands, which is the expropriation of the said land for an amount
equal to the government assessor's valuation of the land for tax
purposes. On the other hand, if the landowner declares his own
valuation he is unjustly required to immediately pay the
corresponding taxes on the land, in violation of the uniformity
rule.
In his consolidated Comment, the Solicitor General first invokes
the presumption of constitutionality in favor of Proc. No. 131 and
E.O. No. 229. He also justifies the necessity for the expropriation
as explained in the "whereas" clauses of the Proclamation and
submits that, contrary to the petitioner's contention, a pilot
project to determine the feasibility of CARP and a general survey
on the people's opinion thereon are not indispensable
prerequisites to its promulgation.
On the alleged violation of the equal protection clause, the sugar
planters have failed to show that they belong to a different class
and should be differently treated. The Comment also suggests the
possibility of Congress first distributing public agricultural lands
and scheduling the expropriation of private agricultural lands
later. From this viewpoint, the petition for prohibition would be
premature.
The public respondent also points out that the constitutional
prohibition is against the payment of public money without the
corresponding appropriation. There is no rule that only money
already in existence can be the subject of an appropriation law.
Finally, the earmarking of fifty billion pesos as Agrarian Reform
Fund, although denominated as an initial amount, is actually the
maximum sum appropriated. The word "initial" simply means that
additional amounts may be appropriated later when necessary.
On April 11, 1988, Prudencio Serrano, a coconut planter, filed a
petition on his own behalf, assailing the constitutionality of E.O.
No. 229. In addition to the arguments already raised, Serrano
contends that the measure is unconstitutional because:
(1) Only public lands should be included in
the CARP;
15
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
(2) E.O. No. 229 embraces more than one
subject which is not expressed in the title;
(3) The power of the President to legislate
was terminated on July 2, 1987; and
(4) The appropriation of a P50 billion special
fund from the National Treasury did not
originate from the House of
Representatives.
G.R. No. 79744
The petitioner alleges that the then Secretary of Department of
Agrarian Reform, in violation of due process and the requirement
for just compensation, placed his landholding under the coverage
of Operation Land Transfer. Certificates of Land Transfer were
subsequently issued to the private respondents, who then refused
payment of lease rentals to him.
On September 3, 1986, the petitioner protested the erroneous
inclusion of his small landholding under Operation Land transfer
and asked for the recall and cancellation of the Certificates of
Land Transfer in the name of the private respondents. He claims
that on December 24, 1986, his petition was denied without
hearing. On February 17, 1987, he filed a motion for
reconsideration, which had not been acted upon when E.O. Nos.
228 and 229 were issued. These orders rendered his motion moot
and academic because they directly effected the transfer of his
land to the private respondents.
The petitioner now argues that:
(1) E.O. Nos. 228 and 229 were invalidly
issued by the President of the Philippines.
(2) The said executive orders are violative of
the constitutional provision that no private
property shall be taken without due process
or just compensation.
(3) The petitioner is denied the right of
maximum retention provided for under the
1987 Constitution.
The petitioner contends that the issuance of E.0. Nos. 228 and 229
shortly before Congress convened is anomalous and arbitrary,
besides violating the doctrine of separation of powers. The
legislative power granted to the President under the Transitory
Provisions refers only to emergency measures that may be
promulgated in the proper exercise of the police power.
The petitioner also invokes his rights not to be deprived of his
property without due process of law and to the retention of his
small parcels of riceholding as guaranteed under Article XIII,
Section 4 of the Constitution. He likewise argues that, besides
denying him just compensation for his land, the provisions of E.O.
No. 228 declaring that:
Lease rentals paid to the landowner by the
farmer-beneficiary after October 21, 1972
shall be considered as advance payment for
the land.
is an unconstitutional taking of a vested property right. It is also
his contention that the inclusion of even small landowners in the
program along with other landowners with lands consisting of
seven hectares or more is undemocratic.
In his Comment, the Solicitor General submits that the petition is
premature because the motion for reconsideration filed with the
Minister of Agrarian Reform is still unresolved. As for the validity
of the issuance of E.O. Nos. 228 and 229, he argues that they were
enacted pursuant to Section 6, Article XVIII of the Transitory
Provisions of the 1987 Constitution which reads:
The incumbent president shall continue to exercise legislative
powers until the first Congress is convened.
On the issue of just compensation, his position is that when P.D.
No. 27 was promulgated on October 21. 1972, the tenant-farmer
of agricultural land was deemed the owner of the land he was
tilling. The leasehold rentals paid after that date should therefore
be considered amortization payments.
In his Reply to the public respondents, the petitioner maintains
that the motion he filed was resolved on December 14, 1987. An
appeal to the Office of the President would be useless with the
promulgation of E.O. Nos. 228 and 229, which in effect sanctioned
the validity of the public respondent's acts.
G.R. No. 78742
The petitioners in this case invoke the right of retention granted
by P.D. No. 27 to owners of rice and corn lands not exceeding
seven hectares as long as they are cultivating or intend to
cultivate the same. Their respective lands do not exceed the
statutory limit but are occupied by tenants who are actually
cultivating such lands.
TROPANG POTCHI
According to P.D. No. 316, which was promulgated in
implementation of P.D. No. 27:
No tenant-farmer in agricultural lands
primarily devoted to rice and corn shall be
ejected or removed from his farmholding
until such time as the respective rights of
the tenant- farmers and the landowner
shall have been determined in accordance
with the rules and regulations
implementing P.D. No. 27.
The petitioners claim they cannot eject their tenants and so are
unable to enjoy their right of retention because the Department
of Agrarian Reform has so far not issued the implementing rules
required under the above-quoted decree. They therefore ask the
Court for a writ of mandamus to compel the respondent to issue
the said rules.
In his Comment, the public respondent argues that P.D. No. 27
has been amended by LOI 474 removing any right of retention
from persons who own other agricultural lands of more than 7
hectares in aggregate area or lands used for residential,
commercial, industrial or other purposes from which they derive
adequate income for their family. And even assuming that the
petitioners do not fall under its terms, the regulations
implementing P.D. No. 27 have already been issued, to wit, the
Memorandum dated July 10, 1975 (Interim Guidelines on
Retention by Small Landowners, with an accompanying Retention
Guide Table), Memorandum Circular No. 11 dated April 21, 1978,
(Implementation Guidelines of LOI No. 474), Memorandum
Circular No. 18-81 dated December 29,1981 (Clarificatory
Guidelines on Coverage of P.D. No. 27 and Retention by Small
Landowners), and DAR Administrative Order No. 1, series of 1985
(Providing for a Cut-off Date for Landowners to Apply for
Retention and/or to Protest the Coverage of their Landholdings
under Operation Land Transfer pursuant to P.D. No. 27). For
failure to file the corresponding applications for retention under
these measures, the petitioners are now barred from invoking this
right.
The public respondent also stresses that the petitioners have
prematurely initiated this case notwithstanding the pendency of
their appeal to the President of the Philippines. Moreover, the
issuance of the implementing rules, assuming this has not yet
been done, involves the exercise of discretion which cannot be
controlled through the writ of mandamus. This is especially true if
this function is entrusted, as in this case, to a separate
department of the government.
In their Reply, the petitioners insist that the above-cited measures
are not applicable to them because they do not own more than
16
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
seven hectares of agricultural land. Moreover, assuming arguendo
that the rules were intended to cover them also, the said
measures are nevertheless not in force because they have not
been published as required by law and the ruling of this Court
in Tanada v. Tuvera. 10 As for LOI 474, the same is ineffective for
the additional reason that a mere letter of instruction could not
have repealed the presidential decree.
I or reverse it on that issue. As for the power of President Aquino
Although holding neither purse nor sword and so regarded as the
weakest of the three departments of the government, the
judiciary is nonetheless vested with the power to annul the acts of
either the legislative or the executive or of both when not
conformable to the fundamental law. This is the reason for what
some quarters call the doctrine of judicial supremacy. Even so,
this power is not lightly assumed or readily exercised. The
doctrine of separation of powers imposes upon the courts a
proper restraint, born of the nature of their functions and of their
respect for the other departments, in striking down the acts of the
legislative and the executive as unconstitutional. The policy,
indeed, is a blend of courtesy and caution. To doubt is to sustain.
The theory is that before the act was done or the law was
enacted, earnest studies were made by Congress or the President,
or both, to insure that the Constitution would not be breached.
In addition, the Constitution itself lays down stringent conditions
for a declaration of unconstitutionality, requiring therefor the
concurrence of a majority of the members of the Supreme Court
who took part in the deliberations and voted on the issue during
their session en banc. 11 And as established by judge made
doctrine, the Court will assume jurisdiction over a constitutional
question only if it is shown that the essential requisites of a
judicial inquiry into such a question are first satisfied. Thus, there
must be an actual case or controversy involving a conflict of legal
rights susceptible of judicial determination, the constitutional
question must have been opportunely raised by the proper party,
and the resolution of the question is unavoidably necessary to the
decision of the case itself. 12
With particular regard to the requirement of proper party as
applied in the cases before us, we hold that the same is satisfied
by the petitioners and intervenors because each of them has
sustained or is in danger of sustaining an immediate injury as a
result of the acts or measures complained of. 13 And even if,
strictly speaking, they are not covered by the definition, it is still
within the wide discretion of the Court to waive the requirement
and so remove the impediment to its addressing and resolving the
serious constitutional questions raised.
In the first Emergency Powers Cases, 14 ordinary citizens and
taxpayers were allowed to question the constitutionality of
several executive orders issued by President Quirino although
they were invoking only an indirect and general interest shared in
common with the public. The Court dismissed the objection that
they were not proper parties and ruled that "the transcendental
importance to the public of these cases demands that they be
settled promptly and definitely, brushing aside, if we must,
technicalities of procedure." We have since then applied this
exception in many other cases. 15
The other above-mentioned requisites have also been met in the
present petitions.
In must be stressed that despite the inhibitions pressing upon the
Court when confronted with constitutional issues like the ones
now before it, it will not hesitate to declare a law or act invalid
when it is convinced that this must be done. In arriving at this
conclusion, its only criterion will be the Constitution as God and
its conscience give it the light to probe its meaning and discover
its purpose. Personal motives and political considerations are
irrelevancies that cannot influence its decision. Blandishment is as
ineffectual as intimidation.
For all the awesome power of the Congress and the Executive, the
Court will not hesitate to "make the hammer fall, and heavily," to
use Justice Laurel's pithy language, where the acts of these
departments, or of any public official, betray the people's will as
expressed in the Constitution.
It need only be added, to borrow again the words of Justice
Laurel, that —
... when the judiciary mediates to allocate
constitutional boundaries, it does not assert
any superiority over the other departments;
it does not in reality nullify or invalidate an
act of the Legislature, but only asserts the
solemn and sacred obligation assigned to it
by the Constitution to determine conflicting
claims of authority under the Constitution
and to establish for the parties in an actual
controversy the rights which that
instrument secures and guarantees to
them. This is in truth all that is involved in
what is termed "judicial supremacy" which
properly is the power of judicial review
under the Constitution. 16
The cases before us categorically raise constitutional questions
that this Court must categorically resolve. And so we shall.
II
TROPANG POTCHI
We proceed first to the examination of the preliminary issues
before resolving the more serious challenges to the
constitutionality of the several measures involved in these
petitions.
The promulgation of P.D. No. 27 by President Marcos in the
exercise of his powers under martial law has already been
sustained in Gonzales v. Estrella and we find no reason to modify
to promulgate Proc. No. 131 and E.O. Nos. 228 and 229, the same
was authorized under Section 6 of the Transitory Provisions of the
1987 Constitution, quoted above.
The said measures were issued by President Aquino before July
27, 1987, when the Congress of the Philippines was formally
convened and took over legislative power from her. They are not
"midnight" enactments intended to pre-empt the legislature
because E.O. No. 228 was issued on July 17, 1987, and the other
measures, i.e., Proc. No. 131 and E.O. No. 229, were both issued
on July 22, 1987. Neither is it correct to say that these measures
ceased to be valid when she lost her legislative power for, like any
statute, they continue to be in force unless modified or repealed
by subsequent law or declared invalid by the courts. A statute
does not ipso facto become inoperative simply because of the
dissolution of the legislature that enacted it. By the same token,
President Aquino's loss of legislative power did not have the effect
of invalidating all the measures enacted by her when and as long
as she possessed it.
Significantly, the Congress she is alleged to have undercut has not
rejected but in fact substantially affirmed the challenged
measures and has specifically provided that they shall be
suppletory to R.A. No. 6657 whenever not inconsistent with its
provisions. 17 Indeed, some portions of the said measures, like the
creation of the P50 billion fund in Section 2 of Proc. No. 131, and
Sections 20 and 21 of E.O. No. 229, have been incorporated by
reference in the CARP Law.18
That fund, as earlier noted, is itself being questioned on the
ground that it does not conform to the requirements of a valid
appropriation as specified in the Constitution. Clearly, however,
Proc. No. 131 is not an appropriation measure even if it does
provide for the creation of said fund, for that is not its principal
purpose. An appropriation law is one the primary and specific
purpose of which is to authorize the release of public funds from
the treasury.19 The creation of the fund is only incidental to the
main objective of the proclamation, which is agrarian reform.
It should follow that the specific constitutional provisions invoked,
to wit, Section 24 and Section 25(4) of Article VI, are not
applicable. With particular reference to Section 24, this obviously
could not have been complied with for the simple reason that the
17
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
House of Representatives, which now has the exclusive power to
initiate appropriation measures, had not yet been convened when
the proclamation was issued. The legislative power was then
solely vested in the President of the Philippines, who embodied,
as it were, both houses of Congress.
The argument of some of the petitioners that Proc. No. 131 and
E.O. No. 229 should be invalidated because they do not provide
for retention limits as required by Article XIII, Section 4 of the
Constitution is no longer tenable. R.A. No. 6657 does provide for
such limits now in Section 6 of the law, which in fact is one of its
most controversial provisions. This section declares:
Retention Limits. — Except as otherwise
provided in this Act, no person may own or
retain, directly or indirectly, any public or
private agricultural land, the size of which
shall vary according to factors governing a
viable family-sized farm, such as commodity
produced, terrain, infrastructure, and soil
fertility as determined by the Presidential
Agrarian Reform Council (PARC) created
hereunder, but in no case shall retention by
the landowner exceed five (5) hectares.
Three (3) hectares may be awarded to each
child of the landowner, subject to the
following qualifications: (1) that he is at
least fifteen (15) years of age; and (2) that
he is actually tilling the land or directly
managing the farm; Provided, That
landowners whose lands have been covered
by Presidential Decree No. 27 shall be
allowed to keep the area originally retained
by them thereunder, further, That original
homestead grantees or direct compulsory
heirs who still own the original homestead
at the time of the approval of this Act shall
retain the same areas as long as they
continue to cultivate said homestead.
The argument that E.O. No. 229 violates the constitutional
requirement that a bill shall have only one subject, to be
expressed in its title, deserves only short attention. It is settled
that the title of the bill does not have to be a catalogue of its
contents and will suffice if the matters embodied in the text are
relevant to each other and may be inferred from the title. 20
The Court wryly observes that during the past dictatorship, every
presidential issuance, by whatever name it was called, had the
force and effect of law because it came from President Marcos.
Such are the ways of despots. Hence, it is futile to argue, as the
petitioners do in G.R. No. 79744, that LOI 474 could not have
repealed P.D. No. 27 because the former was only a letter of
instruction. The important thing is that it was issued by President
Marcos, whose word was law during that time.
But for all their peremptoriness, these issuances from the
President Marcos still had to comply with the requirement for
publication as this Court held in Tanada v. Tuvera. 21 Hence, unless
published in the Official Gazette in accordance with Article 2 of
the Civil Code, they could not have any force and effect if they
were among those enactments successfully challenged in that
case. LOI 474 was published, though, in the Official Gazette dated
November 29,1976.)
Finally, there is the contention of the public respondent in G.R.
No. 78742 that the writ of mandamus cannot issue to compel the
performance of a discretionary act, especially by a specific
department of the government. That is true as a general
proposition but is subject to one important qualification. Correctly
and categorically stated, the rule is that mandamus will lie to
compel the discharge of the discretionary duty itself but not to
control the discretion to be exercised. In other words, mandamus
can issue to require action only but not specific action.
Whenever a duty is imposed upon a public
official and an unnecessary and
unreasonable delay in the exercise of such
duty occurs, if it is a clear duty imposed by
law, the courts will intervene by the
extraordinary legal remedy of mandamus to
compel action. If the duty is purely
ministerial, the courts will require specific
action. If the duty is purely discretionary,
the courts by mandamus will require action
only. For example, if an inferior court,
public official, or board should, for an
unreasonable length of time, fail to decide a
particular question to the great detriment
of all parties concerned, or a court should
refuse to take jurisdiction of a cause when
the law clearly gave it jurisdiction
mandamus will issue, in the first case to
require a decision, and in the second to
require that jurisdiction be taken of the
cause. 22
And while it is true that as a rule the writ will not be proper as
long as there is still a plain, speedy and adequate remedy
available from the administrative authorities, resort to the courts
may still be permitted if the issue raised is a question of law. 23
III
TROPANG POTCHI
There are traditional distinctions between the police power and
the power of eminent domain that logically preclude the
application of both powers at the same time on the same subject.
In the case of City of Baguio v. NAWASA, 24 for example, where a
law required the transfer of all municipal waterworks systems to
the NAWASA in exchange for its assets of equivalent value, the
Court held that the power being exercised was eminent domain
because the property involved was wholesome and intended for a
public use. Property condemned under the police power is
noxious or intended for a noxious purpose, such as a building on
the verge of collapse, which should be demolished for the public
safety, or obscene materials, which should be destroyed in the
interest of public morals. The confiscation of such property is not
compensable, unlike the taking of property under the power of
expropriation, which requires the payment of just compensation
to the owner.
In the case of Pennsylvania Coal Co. v. Mahon, 25 Justice Holmes
laid down the limits of the police power in a famous aphorism:
"The general rule at least is that while property may be regulated
to a certain extent, if regulation goes too far it will be recognized
as a taking." The regulation that went "too far" was a law
prohibiting mining which might cause the subsidence of structures
for human habitation constructed on the land surface. This was
resisted by a coal company which had earlier granted a deed to
the land over its mine but reserved all mining rights thereunder,
with the grantee assuming all risks and waiving any damage claim.
The Court held the law could not be sustained without
compensating the grantor. Justice Brandeis filed a lone dissent in
which he argued that there was a valid exercise of the police
power. He said:
Every restriction upon the use of property
imposed in the exercise of the police power
deprives the owner of some right
theretofore enjoyed, and is, in that sense,
an abridgment by the State of rights in
property without making compensation.
But restriction imposed to protect the
public health, safety or morals from dangers
threatened is not a taking. The restriction
here in question is merely the prohibition of
a noxious use. The property so restricted
remains in the possession of its owner. The
state does not appropriate it or make any
use of it. The state merely prevents the
owner from making a use which interferes
with paramount rights of the public.
Whenever the use prohibited ceases to be
noxious — as it may because of further
changes in local or social conditions — the
restriction will have to be removed and the
18
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
owner will again be free to enjoy his
property as heretofore.
Recent trends, however, would indicate not a polarization but a
mingling of the police power and the power of eminent domain,
with the latter being used as an implement of the former like the
power of taxation. The employment of the taxing power to
achieve a police purpose has long been accepted. 26 As for the
power of expropriation, Prof. John J. Costonis of the University of
Illinois College of Law (referring to the earlier case of Euclid v.
Ambler Realty Co., 272 US 365, which sustained a zoning law
under the police power) makes the following significant remarks:
Euclid, moreover, was decided in an era
when judges located the Police and
eminent domain powers on different
planets. Generally speaking, they viewed
eminent domain as encompassing public
acquisition of private property for
improvements that would be available for
public use," literally construed. To the
police power, on the other hand, they
assigned the less intrusive task of
preventing harmful externalities a point
reflected in the Euclid opinion's reliance on
an analogy to nuisance law to bolster its
support of zoning. So long as suppression of
a privately authored harm bore a plausible
relation to some legitimate "public
purpose," the pertinent measure need have
afforded no compensation whatever. With
the progressive growth of government's
involvement in land use, the distance
between the two powers has contracted
considerably. Today government often
employs eminent domain interchangeably
with or as a useful complement to the
police power-- a trend expressly approved
in the Supreme Court's 1954 decision in
Berman v. Parker, which broadened the
reach of eminent domain's "public use" test
to match that of the police power's
standard of "public purpose." 27
The Berman case sustained a redevelopment project and the
improvement of blighted areas in the District of Columbia as a
proper exercise of the police power. On the role of eminent
domain in the attainment of this purpose, Justice Douglas
declared:
If those who govern the District of Columbia
decide that the Nation's Capital should be
beautiful as well as sanitary, there is
nothing in the Fifth Amendment that stands
in the way.
Once the object is within the authority of
Congress, the right to realize it through the
exercise of eminent domain is clear.
For the power of eminent domain is merely
the means to the end. 28
In Penn Central Transportation Co. v. New York City,  29 decided by
a 6-3 vote in 1978, the U.S Supreme Court sustained the
respondent's Landmarks Preservation Law under which the
owners of the Grand Central Terminal had not been allowed to
construct a multi-story office building over the Terminal, which
had been designated a historic landmark. Preservation of the
landmark was held to be a valid objective of the police power. The
problem, however, was that the owners of the Terminal would be
deprived of the right to use the airspace above it although other
landowners in the area could do so over their respective
properties. While insisting that there was here no taking, the
Court nonetheless recognized certain compensatory rights
accruing to Grand Central Terminal which it said would
"undoubtedly mitigate" the loss caused by the regulation. This
"fair compensation," as he called it, was explained by Prof.
Costonis in this wise:
In return for retaining the Terminal site in its pristine landmark
status, Penn Central was authorized to transfer to neighboring
properties the authorized but unused rights accruing to the site
prior to the Terminal's designation as a landmark — the rights
which would have been exhausted by the 59-story building that
the city refused to countenance atop the Terminal. Prevailing bulk
restrictions on neighboring sites were proportionately relaxed,
theoretically enabling Penn Central to recoup its losses at the
Terminal site by constructing or selling to others the right to
construct larger, hence more profitable buildings on the
transferee sites. 30
The cases before us present no knotty complication insofar as the
question of compensable taking is concerned. To the extent that
the measures under challenge merely prescribe retention limits
for landowners, there is an exercise of the police power for the
regulation of private property in accordance with the
Constitution. But where, to carry out such regulation, it becomes
necessary to deprive such owners of whatever lands they may
own in excess of the maximum area allowed, there is definitely a
taking under the power of eminent domain for which payment of
just compensation is imperative. The taking contemplated is not a
mere limitation of the use of the land. What is required is the
surrender of the title to and the physical possession of the said
TROPANG POTCHI
excess and all beneficial rights accruing to the owner in favor of
the farmer-beneficiary. This is definitely an exercise not of the
police power but of the power of eminent domain.
Whether as an exercise of the police power or of the power of
eminent domain, the several measures before us are challenged
as violative of the due process and equal protection clauses.
The challenge to Proc. No. 131 and E.O. Nos. 228 and 299 on the
ground that no retention limits are prescribed has already been
discussed and dismissed. It is noted that although they excited
many bitter exchanges during the deliberation of the CARP Law in
Congress, the retention limits finally agreed upon are, curiously
enough, not being questioned in these petitions. We therefore do
not discuss them here. The Court will come to the other claimed
violations of due process in connection with our examination of
the adequacy of just compensation as required under the power
of expropriation.
The argument of the small farmers that they have been denied
equal protection because of the absence of retention limits has
also become academic under Section 6 of R.A. No. 6657.
Significantly, they too have not questioned the area of such limits.
There is also the complaint that they should not be made to share
the burden of agrarian reform, an objection also made by the
sugar planters on the ground that they belong to a particular class
with particular interests of their own. However, no evidence has
been submitted to the Court that the requisites of a valid
classification have been violated.
Classification has been defined as the grouping of persons or
things similar to each other in certain particulars and different
from each other in these same particulars. 31 To be valid, it must
conform to the following requirements: (1) it must be based on
substantial distinctions; (2) it must be germane to the purposes of
the law; (3) it must not be limited to existing conditions only; and
(4) it must apply equally to all the members of the class. 32 The
Court finds that all these requisites have been met by the
measures here challenged as arbitrary and discriminatory.
Equal protection simply means that all persons or things similarly
situated must be treated alike both as to the rights conferred and
the liabilities imposed. 33 The petitioners have not shown that they
belong to a different class and entitled to a different treatment.
The argument that not only landowners but also owners of other
properties must be made to share the burden of implementing
land reform must be rejected. There is a substantial distinction
between these two classes of owners that is clearly visible except
to those who will not see. There is no need to elaborate on this
matter. In any event, the Congress is allowed a wide leeway in
providing for a valid classification. Its decision is accorded
19
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
recognition and respect by the courts of justice except only where
its discretion is abused to the detriment of the Bill of Rights.
It is worth remarking at this juncture that a statute may be
sustained under the police power only if there is a concurrence of
the lawful subject and the lawful method. Put otherwise, the
interests of the public generally as distinguished from those of a
particular class require the interference of the State and, no less
important, the means employed are reasonably necessary for the
attainment of the purpose sought to be achieved and not unduly
oppressive upon individuals. 34 As the subject and purpose of
agrarian reform have been laid down by the Constitution itself, we
may say that the first requirement has been satisfied. What
remains to be examined is the validity of the method employed to
achieve the constitutional goal.
One of the basic principles of the democratic system is that where
the rights of the individual are concerned, the end does not justify
the means. It is not enough that there be a valid objective; it is
also necessary that the means employed to pursue it be in
keeping with the Constitution. Mere expediency will not excuse
constitutional shortcuts. There is no question that not even the
strongest moral conviction or the most urgent public need,
subject only to a few notable exceptions, will excuse the
bypassing of an individual's rights. It is no exaggeration to say that
a, person invoking a right guaranteed under Article III of the
Constitution is a majority of one even as against the rest of the
nation who would deny him that right.
That right covers the person's life, his liberty and his property
under Section 1 of Article III of the Constitution. With regard to his
property, the owner enjoys the added protection of Section 9,
which reaffirms the familiar rule that private property shall not be
taken for public use without just compensation.
This brings us now to the power of eminent domain.
IV
Eminent domain is an inherent power of the
State that enables it to forcibly acquire
private lands intended for public use upon
payment of just compensation to the
owner. Obviously, there is no need to
expropriate where the owner is willing to
sell under terms also acceptable to the
purchaser, in which case an ordinary deed
of sale may be agreed upon by the
parties. 35 It is only where the owner is
unwilling to sell, or cannot accept the price
or other conditions offered by the vendee,
that the power of eminent domain will
come into play to assert the paramount
authority of the State over the interests of
the property owner. Private rights must
then yield to the irresistible demands of the
public interest on the time-honored
justification, as in the case of the police
power, that the welfare of the people is the
supreme law.
But for all its primacy and urgency, the power of expropriation is
by no means absolute (as indeed no power is absolute). The
limitation is found in the constitutional injunction that "private
property shall not be taken for public use without just
compensation" and in the abundant jurisprudence that has
evolved from the interpretation of this principle. Basically, the
requirements for a proper exercise of the power are: (1) public
use and (2) just compensation.
Let us dispose first of the argument raised by the petitioners in
G.R. No. 79310 that the State should first distribute public
agricultural lands in the pursuit of agrarian reform instead of
immediately disturbing property rights by forcibly acquiring
private agricultural lands. Parenthetically, it is not correct to say
that only public agricultural lands may be covered by the CARP as
the Constitution calls for "the just distribution of all agricultural
lands." In any event, the decision to redistribute private
agricultural lands in the manner prescribed by the CARP was
made by the legislative and executive departments in the exercise
of their discretion. We are not justified in reviewing that
discretion in the absence of a clear showing that it has been
abused.
A becoming courtesy admonishes us to respect the decisions of
the political departments when they decide what is known as the
political question. As explained by Chief Justice Concepcion in the
case of Tañada v. Cuenco: 36
The term "political question" connotes what
it means in ordinary parlance, namely, a
question of policy. It refers to "those
questions which, under the Constitution,
are to be decided by the people in their
sovereign capacity; or in regard to which
full discretionary authority has been
delegated to the legislative or executive
branch of the government." It is concerned
with issues dependent upon the wisdom,
not legality, of a particular measure.
It is true that the concept of the political question has been
constricted with the enlargement of judicial power, which now
TROPANG POTCHI
includes the authority of the courts "to determine whether or not
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality
of the Government." 37 Even so, this should not be construed as a
license for us to reverse the other departments simply because
their views may not coincide with ours.
The legislature and the executive have been seen fit, in their
wisdom, to include in the CARP the redistribution of private
landholdings (even as the distribution of public agricultural lands
is first provided for, while also continuing apace under the Public
Land Act and other cognate laws). The Court sees no justification
to interpose its authority, which we may assert only if we believe
that the political decision is not unwise, but illegal. We do not find
it to be so.
In U.S. v. Chandler-Dunbar Water Power Company, 38 it was held:
Congress having determined, as it did by
the Act of March 3,1909 that the entire St.
Mary's river between the American bank
and the international line, as well as all of
the upland north of the present ship canal,
throughout its entire length, was "necessary
for the purpose of navigation of said
waters, and the waters connected
therewith," that determination is conclusive
in condemnation proceedings instituted by
the United States under that Act, and there
is no room for judicial review of the
judgment of Congress ... .
As earlier observed, the requirement for public use has already
been settled for us by the Constitution itself No less than the 1987
Charter calls for agrarian reform, which is the reason why private
agricultural lands are to be taken from their owners, subject to
the prescribed maximum retention limits. The purposes specified
in P.D. No. 27, Proc. No. 131 and R.A. No. 6657 are only an
elaboration of the constitutional injunction that the State adopt
the necessary measures "to encourage and undertake the just
distribution of all agricultural lands to enable farmers who are
landless to own directly or collectively the lands they till." That
public use, as pronounced by the fundamental law itself, must be
binding on us.
The second requirement, i.e., the payment of just compensation,
needs a longer and more thoughtful examination.
Just compensation is defined as the full and fair equivalent of the
property taken from its owner by the expropriator. 39 It has been
repeatedly stressed by this Court that the measure is not the
20
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

taker's gain but the owner's loss.40 The word "just" is used to ... the DAR shall conduct summary choice is always limited to the lower of the
intensify the meaning of the word "compensation" to convey the administrative proceedings to determine two. The court cannot exercise its discretion
idea that the equivalent to be rendered for the property to be the compensation for the land by requiring or independence in determining what is just
taken shall be real, substantial, full, ample. 41 the landowner, the LBP and other or fair. Even a grade school pupil could
interested parties to submit evidence as to substitute for the judge insofar as the
the just compensation for the land, within determination of constitutional just
It bears repeating that the measures challenged in these petitions
fifteen (15) days from the receipt of the compensation is concerned.
contemplate more than a mere regulation of the use of private
notice. After the expiration of the above
lands under the police power. We deal here with an actual taking
period, the matter is deemed submitted for
of private agricultural lands that has dispossessed the owners of xxx
decision. The DAR shall decide the case
their property and deprived them of all its beneficial use and
within thirty (30) days after it is submitted
enjoyment, to entitle them to the just compensation mandated by
for decision. In the present petition, we are once again
the Constitution.
confronted with the same question of
whether the courts under P.D. No. 1533,
To be sure, the determination of just compensation is a function
As held in Republic of the Philippines v. Castellvi, 42 there is which contains the same provision on just
addressed to the courts of justice and may not be usurped by any
compensable taking when the following conditions concur: (1) the compensation as its predecessor decrees,
other branch or official of the government. EPZA v.
expropriator must enter a private property; (2) the entry must be still have the power and authority to
Dulay 44 resolved a challenge to several decrees promulgated by
for more than a momentary period; (3) the entry must be under determine just compensation, independent
President Marcos providing that the just compensation for
warrant or color of legal authority; (4) the property must be of what is stated by the decree and to this
property under expropriation should be either the assessment of
devoted to public use or otherwise informally appropriated or effect, to appoint commissioners for such
the property by the government or the sworn valuation thereof
injuriously affected; and (5) the utilization of the property for purpose.
by the owner, whichever was lower. In declaring these decrees
public use must be in such a way as to oust the owner and deprive
unconstitutional, the Court held through Mr. Justice Hugo E.
him of beneficial enjoyment of the property. All these requisites
Gutierrez, Jr.: This time, we answer in the affirmative.
are envisioned in the measures before us.

The method of ascertaining just xxx

Where the State itself is the expropriator, it is not necessary for it
compensation under the aforecited decrees
to make a deposit upon its taking possession of the condemned
constitutes impermissible encroachment on It is violative of due process to deny the
property, as "the compensation is a public charge, the good faith
judicial prerogatives. It tends to render this owner the opportunity to prove that the
of the public is pledged for its payment, and all the resources of
Court inutile in a matter which under this valuation in the tax documents is unfair or
taxation may be employed in raising the amount." 43 Nevertheless,
Constitution is reserved to it for final wrong. And it is repulsive to the basic
Section 16(e) of the CARP Law provides that:
determination. concepts of justice and fairness to allow the
haphazard work of a minor bureaucrat or
Upon receipt by the landowner of the
Thus, although in an expropriation clerk to absolutely prevail over the
corresponding payment or, in case of
proceeding the court technically would still judgment of a court promulgated only after
rejection or no response from the
have the power to determine the just expert commissioners have actually viewed
landowner, upon the deposit with an
compensation for the property, following the property, after evidence and arguments
accessible bank designated by the DAR of
the applicable decrees, its task would be pro and con have been presented, and after
the compensation in cash or in LBP bonds in
relegated to simply stating the lower value all factors and considerations essential to a
accordance with this Act, the DAR shall take
of the property as declared either by the fair and just determination have been
immediate possession of the land and shall
owner or the assessor. As a necessary judiciously evaluated.
request the proper Register of Deeds to
consequence, it would be useless for the
issue a Transfer Certificate of Title (TCT) in
court to appoint commissioners under Rule A reading of the aforecited Section 16(d) will readily show that it
the name of the Republic of the Philippines.
67 of the Rules of Court. Moreover, the does not suffer from the arbitrariness that rendered the
The DAR shall thereafter proceed with the
need to satisfy the due process clause in the challenged decrees constitutionally objectionable. Although the
redistribution of the land to the qualified
taking of private property is seemingly proceedings are described as summary, the landowner and other
beneficiaries.
fulfilled since it cannot be said that a interested parties are nevertheless allowed an opportunity to
judicial proceeding was not had before the submit evidence on the real value of the property. But more
Objection is raised, however, to the manner of fixing the just actual taking. However, the strict importantly, the determination of the just compensation by the
compensation, which it is claimed is entrusted to the application of the decrees during the DAR is not by any means final and conclusive upon the landowner
administrative authorities in violation of judicial prerogatives. proceedings would be nothing short of a or any other interested party, for Section 16(f) clearly provides:
Specific reference is made to Section 16(d), which provides that in mere formality or charade as the court has
case of the rejection or disregard by the owner of the offer of the only to choose between the valuation of the
government to buy his land- owner and that of the assessor, and its
21
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

Any party who disagrees with the decision b a

may bring the matter to the court of proper o r
jurisdiction for final determination of just v a
compensation. e g
e
The determination made by the DAR is only preliminary unless f
accepted by all parties concerned. Otherwise, the courts of justice i i
will still have the right to review with finality the said f s
determination in the exercise of what is admittedly a judicial t
function. y c
o
The second and more serious objection to the provisions on just ( n
compensation is not as easily resolved. 5 c
0 e
) r
This refers to Section 18 of the CARP Law providing in full as
n
follows:
e
h
d
e
SEC. 18. Valuation and Mode of
c
Compensation. — The LBP shall
t —
compensate the landowner in such amount
a
as may be agreed upon by the landowner
r
and the DAR and the LBP, in accordance T
e
with the criteria provided for in Sections 16 w
s
and 17, and other pertinent provisions e
,
hereof, or as may be finally determined by n
i
the court, as the just compensation for the t
n
land. y
s -
o
f
The compensation shall be paid in one of f i
the following modes, at the option of the a
v
landowner: r e

(1) Cash payment, under the following a

p
terms and conditions: s e
r
( t c
a h e
) e n
t
F e
o x (
r c 2
e 5
l s %
a s )
n
d h c
s e a
c s
a t h
22
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

, r
t u
t
h m w
e e
e
n n
t
b t
s
a y
l -
a n f
n e o
c g u
e o r
t
i
t (
a
o 2
b 4
l
)
b e
e
h
a
e
p t c
a
t
i
a a
d
n r
y e
i s
n
t
i a
g m n
o e d
v .
e
u
r
( p
n
m b
e ) t
n o
t F
o f
f r i
i f
n l t
a a y
n n
c d (
i s 5
a 0
l
a )
i
b
n
o h
s
v e
t
e
23
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

c e
t
a
a p t
r
a
e i
s a
d n
y
— i
n t
T
i
h g m
i
o e
r v .
t
e
y r
(
n
c
p m
)
e e
r n
c t F
e o
n r
f
t
i
n l
( a a
3 n n
0 c d
% i s
) a
l t
i w
c
n e
a
s n
s
t t
h
r y
,
u -
t
m f
h
e o
e
n u
t r
b s
a
l (
n 2
a
e 4
n
g )
c
o
e
t
i h
t a e
o b c
l t
e a
b
24
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

r b s
e a
s l n
a
e
n
a g
c
n o
e
d t
i
t a
b
o b
e
l
l
e
o b
w e
a
t
— p
a
i a
T
d n
h
y
i
r i
t n t
y i
- m
g
f e
o
i .
v
v
e
e r (2) Shares of stock in government-owned or
n controlled corporations, LBP preferred
p m shares, physical assets or other qualified
e e investments in accordance with guidelines
r n set by the PARC;
c t
e
(3) Tax credits which can be used against
n f any tax liability;
t
i
n
(4) LBP bonds, which shall have the
( a
following features:
3 n
5 c
% i (
) a a
l )
i
c
n M
a
s a
s
t r
h
r k
,
u e
t
m t
h
e
e
n
t i
25
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

n . s
t T h
e e a
r n l
e l
s m
p
t a
e
t
r
u
r c
r
a e
e
t n
e t
s e
v
(
e
a 1
r
l 0
y
i %
g )
n y
e e
o
d a
f
r
w
t
i f
h
t r
e
h o
m
f
9
a
1 t
c
- h
e
d e
a
y v
d
a
a
l
t t
u
r e
e
e
a o
s o
f
u f
r
y i
t
s
h
s
b e
u
i a
l b n
l o c
r n e
a d
t s
e u
s n
26
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

t n n
i d
l o f
t w
u
h n l
e e
l
r o
t r
e c
n h i
t o
n
h o
s
e p
(
a
1 r
0 t
t
t o ,
h
h
) f e
o
y r
s
e e h
a g
a
r o l
:
l
P t b
r
h e
o e
v
i p
d c a
e a i
d s d
, h
T c
h p o
a o r
t r r
t e
s i s
h o p
o n o
u , n
l w d
d h i
e n
t g
t
h l
h e y
e
r
i
l i n
a
27
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

c e
h s
L
s
B
o
P L
r
B
s
P
b -
o i
n b n
d o -
s n
; d
i
s
n
( t
b m e
) a r
y e
T s
r b t
a e
n o
s u r
f s
e e h
r d i
a
s
b
i b
l y a
i s
t t s
y h i
e g
n
a
s
n l ,
d a u
n p
n d
e o
w t
g
n o
o
t e
i r t
a , h
b h e
i i
l s
a
i m
t s o
y u u
. c n
S c t
u
28
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

o A g
f c o
q v
u e
t
i r
h
s n
e
i m
i
t e
r
i n
o t
f n ,
a i
c n
o
e c
f
l
v u
l d
a
a i
l
n n
u
d g
e
,
f o a
o r s
r s
o e
a t t
n h s
y e
r u
o n
f r d
e e
a r
t
l
h
p t
e
r h
o e
f p
o e
l A
r
l s
t
o s
i
w e
e
i t
s
n
g P
o
: r
f
i
( v
t a
i
h t
)
e i
29
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

z n
a m
r
t e e
i n
g
o t i
n
o
f n
P i
r n
w
o a h
g n
e
r c r
a i
e
m a
l
i t
a
n h
n
s e
d
t
i l
o t a
t u n
h t d
e i s
r o
n
s f
a
o
s r
s i
e n
t w
s h
t i
h c
f e h
o
r
s t
e
a h
c
m e
l
e
o
s b
e p o
d r n
o d
v s
b
i
y
n
c w
g e e
o r
v e
o
e
r
r p
30
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

a c
i k
s
d h
o a
a f r
r e
e s
g
o
s v o
i e f
t r
u n
s
a m t
t e
o
e n c
d t
k
; -
o
w o
( w
n
i n
e
i e
d
) d
o
A b
r
c y
q
u c
i o t
s n h
i t e
t r
i o g
o l o
n l v
e e
d r
o
f n
c m
o e
s n
r
h t
p
a
o
r
r i
e
a n
s
t
i
o o p
f n r
s i
v
s a
t o t
o r
31
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

e i s
l ,
b o
c
o r
o
n
r
d
p f
s
o o
r r
a f
t o p
i r
e
o r
n
t f
s h o
;
e r
m
( a
p
i n
r
i c
o
i e
v
) i
s b
S i o
u o n
b n d
s a s
t l ;
i r
t e
(
u l
i
t e
v
i a
)
o s
n e
S
e
f o
c
o f
u
r
r
a i
s c t
u c y
r u
e s
f
t e
o
y d
r

o p
l
r e
o
r
a
s
b n
o
a s
n
32
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

h o
e n
w
o
i
m
t p
i
h r
c
o
c
a
e e
n
e n
y
d t
s e
g r
o p
o
v r
f
e i
r s
n t e
m h ,
e e p
n r
t e
l
o f
f a e
i n r
n s a
a b
n l
s y
c h
i
a
a i
l
l n
l
i b
n
e a
s
t
i i s
t n m
u v a
t e l
i s l
o t a
n e n
, d d
p
r i m
o n e
v
d
i
a i
d
n u
e m
d
-
e
t c
s
33
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

c r
a
l
l a v
e
n a
d r
i i
n o
f
d u
o
u s
r
s
t
t
r w
a
y h
x
, i
e
i c
s
n h

a
t t
n
h h
d
e e

f
s b
e
a o
e
m n
s
e d
s
t
p o
r a
o r
v e g
i o
n v
p
c e
a
e r
i
n
d
m
o ;
e
r
n
( t
r v :
e ) P
g r
i P o
o a v
n y i
m d
e e
a
n d
s
t ,
T
t h
h f a
e o t
34
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

l b
i a
t
m l
h
i a
e
t n
e c
u d e
s
e
t o
o f
o
f
a t
h
t e
c
h
e
e
r f
s
t i
e
a n
i a
b n n
o c
n i
p
d a
e
s l
r
i
c
f n
e
o s
n
r t
t
r
a
u
t g
m
h e
e
e n
s o t
e f s
;
p t P
u h r
r e o
p v
o i
o d
s
u e
e
t d
s
s ,
t f
w a u
i n r
l d t
l i h
b n e
e g r
,
35
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

T e e
h d d
a i
t a
a
t
b
e
t o
h v
e e f
; a
m
P
i
A (
l
R v
y
C i
)
o
s
f
h P
a a
l y t
l m h
d e e
e n
t t o
e
r
r
f i
m
o g
i
r i
n
n
e a
t
l
u
t b
i
h o
t
e n
i
d
o
h
p n
o
e
l
r
f d
c
e e
e
e r
n
s
t
a i
g o n
e f
s g
t o
m h v
e e e
n r
t i n
i m m
o m e
n n
36
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

t i a
t m
u i
u
t l
n
i y
i
o
v
n
e o
s
r f
;
s
i t
t ( h
i v e
e i
s i
, ) o
c r
o i
P g
l
a i
l
y n
e
m a
g
e l
e
n b
s
t o
,
t n
r f d
a o h
d r o
e l
d
f
e
s e
r
c e
h s
o i
o n
o
l f
s g
, o
a t
v
n h
e
d e
r
n
o i m
t m e
h m n
e e t
r d
i
h
a
i o
t
n s
e
s p
t i
f t
37
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

a m sustained, which is the measure of the

l indemnity, not whatever gain would accrue
s to the expropriating entity. The market
t
; value of the land taken is the just
i
a compensation to which the owner of
m
n condemned property is entitled, the market
e
d value being that sum of money which a
person desirous, but not compelled to buy,
t and an owner, willing, but not compelled to
( o sell, would agree on as a price to be given
v
and received for such property. (Emphasis
i
t supplied.)
i
i i
) m In the United States, where much of our jurisprudence on the
e subject has been derived, the weight of authority is also to the
effect that just compensation for property expropriated is payable
S
a only in money and not otherwise. Thus —
u
c l
h l The medium of payment of compensation is
o ready money or cash. The condemnor
w cannot compel the owner to accept
o .
t anything but money, nor can the owner
h compel or require the condemnor to pay
e The contention of the petitioners in G.R. No. 79777 is that the him on any other basis than the value of the
r above provision is unconstitutional insofar as it requires the property in money at the time and in the
owners of the expropriated properties to accept just manner prescribed by the Constitution and
compensation therefor in less than money, which is the only the statutes. When the power of eminent
u domain is resorted to, there must be a
medium of payment allowed. In support of this contention, they
s standard medium of payment, binding upon
cite jurisprudence holding that:
e both parties, and the law has fixed that
s standard as money in cash. 47 (Emphasis
The fundamental rule in expropriation supplied.)
matters is that the owner of the property
a
expropriated is entitled to a just
s Part cash and deferred payments are not
compensation, which should be neither
more nor less, whenever it is possible to and cannot, in the nature of things, be
t make the assessment, than the money regarded as a reliable and constant
h equivalent of said property. Just standard of compensation. 48
e compensation has always been understood
to be the just and complete equivalent of "Just compensation" for property taken by
P the loss which the owner of the thing condemnation means a fair equivalent in
A expropriated has to suffer by reason of the money, which must be paid at least within a
R expropriation . 45 (Emphasis supplied.) reasonable time after the taking, and it is
C not within the power of the Legislature to
In J.M. Tuazon Co. v. Land Tenure Administration, 46 this Court substitute for such payment future
held: obligations, bonds, or other valuable
m advantage. 49 (Emphasis supplied.)
a
y It is well-settled that just compensation
means the equivalent for the value of the It cannot be denied from these cases that the traditional medium
property at the time of its taking. Anything for the payment of just compensation is money and no other. And
f
beyond that is more, and anything short of so, conformably, has just compensation been paid in the past
r
that is less, than just compensation. It solely in that medium. However, we do not deal here with the
o
means a fair and full equivalent for the loss traditional excercise of the power of eminent domain. This is not
38
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
an ordinary expropriation where only a specific property of
relatively limited area is sought to be taken by the State from its
owner for a specific and perhaps local purpose.
What we deal with here is a revolutionary kind of expropriation.
The expropriation before us affects all private agricultural lands
whenever found and of whatever kind as long as they are in
excess of the maximum retention limits allowed their owners. This
kind of expropriation is intended for the benefit not only of a
particular community or of a small segment of the population but
of the entire Filipino nation, from all levels of our society, from
the impoverished farmer to the land-glutted owner. Its purpose
does not cover only the whole territory of this country but goes
beyond in time to the foreseeable future, which it hopes to secure
and edify with the vision and the sacrifice of the present
generation of Filipinos. Generations yet to come are as involved in
this program as we are today, although hopefully only as
beneficiaries of a richer and more fulfilling life we will guarantee
to them tomorrow through our thoughtfulness today. And, finally,
let it not be forgotten that it is no less than the Constitution itself
that has ordained this revolution in the farms, calling for "a just
distribution" among the farmers of lands that have heretofore
been the prison of their dreams but can now become the key at
least to their deliverance.
Such a program will involve not mere millions of pesos. The cost
will be tremendous. Considering the vast areas of land subject to
expropriation under the laws before us, we estimate that
hundreds of billions of pesos will be needed, far more indeed than
the amount of P50 billion initially appropriated, which is already
staggering as it is by our present standards. Such amount is in fact
not even fully available at this time.
We assume that the framers of the Constitution were aware of
this difficulty when they called for agrarian reform as a top
priority project of the government. It is a part of this assumption
that when they envisioned the expropriation that would be
needed, they also intended that the just compensation would
have to be paid not in the orthodox way but a less conventional if
more practical method. There can be no doubt that they were
aware of the financial limitations of the government and had no
illusions that there would be enough money to pay in cash and in
full for the lands they wanted to be distributed among the
farmers. We may therefore assume that their intention was to
allow such manner of payment as is now provided for by the CARP
Law, particularly the payment of the balance (if the owner cannot
be paid fully with money), or indeed of the entire amount of the
just compensation, with other things of value. We may also
suppose that what they had in mind was a similar scheme of
payment as that prescribed in P.D. No. 27, which was the law in
force at the time they deliberated on the new Charter and with
which they presumably agreed in principle.
The Court has not found in the records of the Constitutional
Commission any categorical agreement among the members
regarding the meaning to be given the concept of just
compensation as applied to the comprehensive agrarian reform
program being contemplated. There was the suggestion to "fine
tune" the requirement to suit the demands of the project even as
it was also felt that they should "leave it to Congress" to
determine how payment should be made to the landowner and
reimbursement required from the farmer-beneficiaries. Such
innovations as "progressive compensation" and "State-subsidized
compensation" were also proposed. In the end, however, no
special definition of the just compensation for the lands to be
expropriated was reached by the Commission. 50
On the other hand, there is nothing in the records either that
militates against the assumptions we are making of the general
sentiments and intention of the members on the content and
manner of the payment to be made to the landowner in the light
of the magnitude of the expenditure and the limitations of the
expropriator.
With these assumptions, the Court hereby declares that the
content and manner of the just compensation provided for in the
afore- quoted Section 18 of the CARP Law is not violative of the
Constitution. We do not mind admitting that a certain degree of
pragmatism has influenced our decision on this issue, but after all
this Court is not a cloistered institution removed from the realities
and demands of society or oblivious to the need for its
enhancement. The Court is as acutely anxious as the rest of our
people to see the goal of agrarian reform achieved at last after
the frustrations and deprivations of our peasant masses during all
these disappointing decades. We are aware that invalidation of
the said section will result in the nullification of the entire
program, killing the farmer's hopes even as they approach
realization and resurrecting the spectre of discontent and dissent
in the restless countryside. That is not in our view the intention of
the Constitution, and that is not what we shall decree today.
Accepting the theory that payment of the just compensation is
not always required to be made fully in money, we find further
that the proportion of cash payment to the other things of value
constituting the total payment, as determined on the basis of the
areas of the lands expropriated, is not unduly oppressive upon the
landowner. It is noted that the smaller the land, the bigger the
payment in money, primarily because the small landowner will be
needing it more than the big landowners, who can afford a bigger
balance in bonds and other things of value. No less importantly,
the government financial instruments making up the balance of
the payment are "negotiable at any time." The other modes,
TROPANG POTCHI
which are likewise available to the landowner at his option, are
also not unreasonable because payment is made in shares of
stock, LBP bonds, other properties or assets, tax credits, and other
things of value equivalent to the amount of just compensation.
Admittedly, the compensation contemplated in the law will cause
the landowners, big and small, not a little inconvenience. As
already remarked, this cannot be avoided. Nevertheless, it is
devoutly hoped that these countrymen of ours, conscious as we
know they are of the need for their forebearance and even
sacrifice, will not begrudge us their indispensable share in the
attainment of the ideal of agrarian reform. Otherwise, our pursuit
of this elusive goal will be like the quest for the Holy Grail.
The complaint against the effects of non-registration of the land
under E.O. No. 229 does not seem to be viable any more as it
appears that Section 4 of the said Order has been superseded by
Section 14 of the CARP Law. This repeats the requisites of
registration as embodied in the earlier measure but does not
provide, as the latter did, that in case of failure or refusal to
register the land, the valuation thereof shall be that given by the
provincial or city assessor for tax purposes. On the contrary, the
CARP Law says that the just compensation shall be ascertained on
the basis of the factors mentioned in its Section 17 and in the
manner provided for in Section 16.
The last major challenge to CARP is that the landowner is divested
of his property even before actual payment to him in full of just
compensation, in contravention of a well- accepted principle of
eminent domain.
The recognized rule, indeed, is that title to the property
expropriated shall pass from the owner to the expropriator only
upon full payment of the just compensation. Jurisprudence on this
settled principle is consistent both here and in other democratic
jurisdictions. Thus:
Title to property which is the subject of condemnation
proceedings does not vest the condemnor until the judgment
fixing just compensation is entered and paid, but the condemnor's
title relates back to the date on which the petition under the
Eminent Domain Act, or the commissioner's report under the
Local Improvement Act, is filed. 51
... although the right to appropriate and use land taken for a canal
is complete at the time of entry, title to the property taken
remains in the owner until payment is actually made. 52 (Emphasis
supplied.)
In Kennedy v. Indianapolis, 53 the US Supreme Court cited several
cases holding that title to property does not pass to the
39
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
condemnor until just compensation had actually been made. In
fact, the decisions appear to be uniformly to this effect. As early
as 1838, in Rubottom v. McLure, 54 it was held that "actual
payment to the owner of the condemned property was a
condition precedent to the investment of the title to the property
in the State" albeit "not to the appropriation of it to public use."
In Rexford v. Knight, 55 the Court of Appeals of New York said that
the construction upon the statutes was that the fee did not vest in
the State until the payment of the compensation although the
authority to enter upon and appropriate the land was complete
prior to the payment. Kennedy further said that "both on principle
and authority the rule is ... that the right to enter on and use the
property is complete, as soon as the property is actually
appropriated under the authority of law for a public use, but that
the title does not pass from the owner without his consent, until
just compensation has been made to him."
Our own Supreme Court has held in Visayan Refining Co. v. Camus
and Paredes,  56 that:
If the laws which we have exhibited or cited
in the preceding discussion are attentively
examined it will be apparent that the
method of expropriation adopted in this
jurisdiction is such as to afford absolute
reassurance that no piece of land can be
finally and irrevocably taken from an
unwilling owner until compensation is
paid ... . (Emphasis supplied.)
It is true that P.D. No. 27 expressly ordered the emancipation of
tenant-farmer as October 21, 1972 and declared that he shall "be
deemed the owner" of a portion of land consisting of a family-
sized farm except that "no title to the land owned by him was to
be actually issued to him unless and until he had become a full-
fledged member of a duly recognized farmers' cooperative." It
was understood, however, that full payment of the just
compensation also had to be made first, conformably to the
constitutional requirement.
When E.O. No. 228, categorically stated in its Section 1 that:
All qualified farmer-beneficiaries are now
deemed full owners as of October 21, 1972
of the land they acquired by virtue of
Presidential Decree No. 27. (Emphasis
supplied.)
it was obviously referring to lands already validly acquired under
the said decree, after proof of full-fledged membership in the
farmers' cooperatives and full payment of just compensation.
Hence, it was also perfectly proper for the Order to also provide in
its Section 2 that the "lease rentals paid to the landowner by the
farmer- beneficiary after October 21, 1972 (pending transfer of
ownership after full payment of just compensation), shall be
considered as advance payment for the land."
The CARP Law, for its part, conditions the transfer of possession
and ownership of the land to the government on receipt by the
landowner of the corresponding payment or the deposit by the
DAR of the compensation in cash or LBP bonds with an accessible
bank. Until then, title also remains with the landowner. 57 No
outright change of ownership is contemplated either.
Hence, the argument that the assailed measures violate due
process by arbitrarily transferring title before the land is fully paid
for must also be rejected.
It is worth stressing at this point that all rights acquired by the
tenant-farmer under P.D. No. 27, as recognized under E.O. No.
228, are retained by him even now under R.A. No. 6657. This
should counter-balance the express provision in Section 6 of the
said law that "the landowners whose lands have been covered by
Presidential Decree No. 27 shall be allowed to keep the area
originally retained by them thereunder, further, That original
homestead grantees or direct compulsory heirs who still own the
original homestead at the time of the approval of this Act shall
retain the same areas as long as they continue to cultivate said
homestead."
In connection with these retained rights, it does not appear in
G.R. No. 78742 that the appeal filed by the petitioners with the
Office of the President has already been resolved. Although we
have said that the doctrine of exhaustion of administrative
remedies need not preclude immediate resort to judicial action,
there are factual issues that have yet to be examined on the
administrative level, especially the claim that the petitioners are
not covered by LOI 474 because they do not own other
agricultural lands than the subjects of their petition.
Obviously, the Court cannot resolve these issues. In any event,
assuming that the petitioners have not yet exercised their
retention rights, if any, under P.D. No. 27, the Court holds that
they are entitled to the new retention rights provided for by R.A.
No. 6657, which in fact are on the whole more liberal than those
granted by the decree.
V their rights of retention under P.D. No. 27
The CARP Law and the other enactments also involved in these
cases have been the subject of bitter attack from those who point
to the shortcomings of these measures and ask that they be
TROPANG POTCHI
scrapped entirely. To be sure, these enactments are less than
perfect; indeed, they should be continuously re-examined and
rehoned, that they may be sharper instruments for the better
protection of the farmer's rights. But we have to start
somewhere. In the pursuit of agrarian reform, we do not tread on
familiar ground but grope on terrain fraught with pitfalls and
expected difficulties. This is inevitable. The CARP Law is not a tried
and tested project. On the contrary, to use Justice Holmes's
words, "it is an experiment, as all life is an experiment," and so we
learn as we venture forward, and, if necessary, by our own
mistakes. We cannot expect perfection although we should strive
for it by all means. Meantime, we struggle as best we can in
freeing the farmer from the iron shackles that have
unconscionably, and for so long, fettered his soul to the soil.
By the decision we reach today, all major legal obstacles to the
comprehensive agrarian reform program are removed, to clear
the way for the true freedom of the farmer. We may now glimpse
the day he will be released not only from want but also from the
exploitation and disdain of the past and from his own feelings of
inadequacy and helplessness. At last his servitude will be ended
forever. At last the farm on which he toils will be his farm. It will
be his portion of the Mother Earth that will give him not only the
staff of life but also the joy of living. And where once it bred for
him only deep despair, now can he see in it the fruition of his
hopes for a more fulfilling future. Now at last can he banish from
his small plot of earth his insecurities and dark resentments and
"rebuild in it the music and the dream."
WHEREFORE, the Court holds as follows:
1. R.A. No. 6657, P.D. No. 27, Proc. No. 131,
and E.O. Nos. 228 and 229 are SUSTAINED
against all the constitutional objections
raised in the herein petitions.
2. Title to all expropriated properties shall
be transferred to the State only upon full
payment of compensation to their
respective owners.
3. All rights previously acquired by the
tenant- farmers under P.D. No. 27 are
retained and recognized.
4. Landowners who were unable to exercise
shall enjoy the retention rights granted by
R.A. No. 6657 under the conditions therein
prescribed.
40
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
5. Subject to the above-mentioned rulings
all the petitions are DISMISSED, without
pronouncement as to costs.
SO ORDERED
G.R. No. L-63419 December 18, 1986
FLORENTINA A. LOZANO, petitioner,  153, Court of First Instance of Pasig, Metro Manila, respondent.
vs.
THE HONORABLE ANTONIO M. MARTINEZ, in his capacity as
Presiding Judge, Regional Trial Court, National Capital Judicial
Region, Branch XX, Manila, and the HONORABLE JOSE B.
FLAMINIANO, in his capacity as City Fiscal of
Manila, respondents.
G.R. No. L-66839-42 December 18, 1986
LUZVIMINDA F. LOBATON petitioner,  motions to quash, these orders being interlocutory. While this is
vs.
HONORABLE GLICERIO L. CRUZ, in his capacity as Presiding
Executive Judge, Branch V, Region IV, Regional Trial Court, sitting
at Lemery, Batangas, THE PROVINCIAL FISCAL OF BATANGAS,
and MARIA LUISA TORDECILLA, respondents.
G.R No. 71654 December 18, 1986
ANTONIO DATUIN and SUSAN DATUIN, petitioners, 
vs.
HONORABLE JUDGE ERNANI C. PANO, Regional Trial Court,
Quezon City, Branch LXXXVIII, HONORABLE ClTY FISCAL OF
QUEZON CITY, respondents.
G.R. No. 74524-25 December 18, 1986
OSCAR VIOLAGO, petitioner, 
vs.
HONORABLE JUDGE ERNANI C. PAÑ;O Regional Trial Court,
Quezon City, Branch LXXXVIII, HONORABLE CITY FISCAL OF
QUEZON CITY, respondents.
G.R. No. 75122-49 December 18, 1986
ELINOR ABAD, petitioner,  the same reason had not the drawer, without any valid reason,
vs.
THE HONORABLE NICOLAS A. GEROCHI, JR., in his capacity as
Presiding Judge, Regional Trial Court, National Capital Judicial
Region, Branch 139, Makati and FEDERICO L. MELOCOTTON JR.,
in his capacity as Trial Fiscal Regional Trial Court, Branch 139,
Makati, respondents.
G.R No. 75812-13 December 18, 1986
AMABLE R. AGUILUZ VII and SYLVIA V. AGUILUZ,
spouses, petitioners, 
vs.
HONORABLE PRESIDING JUDGE OF BRANCH 154, now vacant but
temporarily presided by HONORABLE ASAALI S. ISNANI Branch
G.R No. 75765-67 December 18, 1986
LUIS M. HOJAS, petitioner,  to us for relief.
vs.
HON. JUDGE SENEN PENARANDA, Presiding Judge, Regional Trial
Court of Cagayan de Oro City, Branch XX, HONORABLE JUDGE
ALFREDO LAGAMON, Presiding Judge, Regional Trial Court of
Cagayan de Oro City, Branch XXII, HONORABLE CITY FISCAL NOLI
T. CATHI, City Fiscal of Cagayan de Oro City,respondents.
G.R. No. 75789 December 18, 1986
THE PEOPLE OF THE PHILIPPINES, petitioner,  constitutional challenge to BP 22 resolved promptly, one way or
vs.
HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial Court,
National Capital Judicial Region, Branch 52, Manila and THELMA
SARMIENTO, respondents.
R.R. Nogales Law Office for petitioner in G.R. No. 63419, G.R. Nos.
74524-25, G.R. Nos. 75812-13, G.R. Nos. 75765-67 and counsel for
respondent in G.R. No. 75789.
Pio S. Canta for petitioner in G.R. Nos. 66839-42.
Hermogenes Datuin, Jr. for petitioner in G.R. No. 71654.
Abinoja, Tabalingcos, Villalon & Associates for petitioner in G.R.
Nos. 75122-49.
The Solicitor General for respondent in G.R. No. 63419, G.R. Nos.
66839-42, G.R. No. 71654, G.R. Nos. 74524-25, G.R. Nos. 75122-
49, G.R. Nos. 75812-13, G.R. Nos. 75765-67 and counsel for
petitioner in G.R. No. 75789.
 
TROPANG POTCHI
YAP, J.:
The constitutionality of Batas Pambansa Bilang 22 (BP 22 for
short), popularly known as the Bouncing Check Law, which was
approved on April 3, 1979, is the sole issue presented by these
petitions for decision. The question is definitely one of first
impression in our jurisdiction.
These petitions arose from cases involving prosecution of offenses
under the statute. The defendants in those cases moved
seasonably to quash the informations on the ground that the acts
charged did not constitute an offense, the statute being
unconstitutional. The motions were denied by the respondent
trial courts, except in one case, which is the subject of G. R. No.
75789, wherein the trial court declared the law unconstitutional
and dismissed the case. The parties adversely affected have come
As a threshold issue the former Solicitor General in his comment
on the petitions, maintained the posture that it was premature for
the accused to elevate to this Court the orders denying their
correct as a general rule, we have in justifiable cases intervened
to review the lower court's denial of a motion to quash. 1 In view
of the importance of the issue involved here, there is no doubt in
our mind that the instant petitions should be entertained and the
the other, in order to put to rest the doubts and uncertainty that
exist in legal and judicial circles and the general public which have
unnecessarily caused a delay in the disposition of cases involving
the enforcement of the statute.
For the purpose of resolving the constitutional issue presented
here, we do not find it necessary to delve into the specifics of the
informations involved in the cases which are the subject of the
petitions before us. 2 The language of BP 22 is broad enough to
cover all kinds of checks, whether present dated or postdated, or
whether issued in payment of pre-existing obligations or given in
mutual or simultaneous exchange for something of value.
I
BP 22 punishes a person "who makes or draws and issues any
check on account or for value, knowing at the time of issue that
he does not have sufficient funds in or credit with the drawee
bank for the payment of said check in full upon presentment,
which check is subsequently dishonored by the drawee bank for
insufficiency of funds or credit or would have been dishonored for
ordered the bank to stop payment." The penalty prescribed for
the offense is imprisonment of not less than 30 days nor more
41
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
than one year or a fine or not less than the amount of the check
nor more than double said amount, but in no case to exceed
P200,000.00, or both such fine and imprisonment at the
discretion of the court. 3
The statute likewise imposes the same penalty on "any person
who, having sufficient funds in or credit with the drawee bank
when he makes or draws and issues a check, shall fail to keep
sufficient funds or to maintain a credit to cover the full amount of
the check if presented within a period of ninety (90) days from the
date appearing thereon, for which reason it is dishonored by the
drawee bank. 4
An essential element of the offense is "knowledge" on the part of
the maker or drawer of the check of the insufficiency of his funds
in or credit with the bank to cover the check upon its
presentment. Since this involves a state of mind difficult to
establish, the statute itself creates a prima facie presumption of
such knowledge where payment of the check "is refused by the
drawee because of insufficient funds in or credit with such bank
when presented within ninety (90) days from the date of the
check. 5 To mitigate the harshness of the law in its application, the
statute provides that such presumption shall not arise if within
five (5) banking days from receipt of the notice of dishonor, the
maker or drawer makes arrangements for payment of the check
by the bank or pays the holder the amount of the check.
Another provision of the statute, also in the nature of a rule of
evidence, provides that the introduction in evidence of the unpaid
and dishonored check with the drawee bank's refusal to pay
"stamped or written thereon or attached thereto, giving the
reason therefor, "shall constitute prima facie proof of "the
making or issuance of said check, and the due presentment to the
drawee for payment and the dishonor thereof ... for the reason
written, stamped or attached by the drawee on such dishonored
check." 6
The presumptions being merely prima facie, it is open to the
accused of course to present proof to the contrary to overcome
the said presumptions.
II
BP 22 is aimed at putting a stop to or curbing the practice of
issuing checks that are worthless, i.e. checks that end up being
rejected or dishonored for payment. The practice, as discussed
later, is proscribed by the state because of the injury it causes to t
public interests.
Before the enactment of BP 22, provisions already existed in our
statute books which penalize the issuance of bouncing or rubber
checks. Criminal law has dealth with the problem within the
context of crimes against property punished as "estafa" or crimes
involving fraud and deceit. The focus of these penal provisions is
on the damage caused to the property rights of the victim.
The Penal Code of Spain, which was in force in the Philippines
from 1887 until it was replaced by the Revised Penal Code in
1932, contained provisions penalizing, among others, the act of
defrauding another through false pretenses. Art. 335 punished a
person who defrauded another "by falsely pretending to possess
any power, influence, qualification, property, credit, agency or
business, or by means of similar deceit." Although no explicit
mention was made therein regarding checks, this provision was
deemed to cover within its ambit the issuance of worthless or
bogus checks in exchange for money. 7
In 1926, an amendment was introduced by the Philippine
Legislature, which added a new clause (paragraph 10) to Article
335 of the old Penal Code, this time referring in explicit terms to
the issuance of worthless checks. The amendment penalized any
person who 1) issues a check in payment of a debt or for other
valuable consideration, knowing at the time of its issuance that he
does not have sufficient funds in the bank to cover its amount, or
2) maliciously signs the check differently from his authentic
signature as registered at the bank in order that the latter would
refuse to honor it; or 3) issues a postdated check and, at the date
set for its payment, does not have sufficient deposit to cover the
same. 8
In 1932, as already adverted to, the old Penal Code was
superseded by the Revised Penal Code. 9 The above provisions, in
amended form, were incorporated in Article 315 of the Revised
Penal Code defining the crime of estafa. The revised text of the
provision read as follows:
Art. 315. Swindling (estafa).—Any person who shall
defraud another by any of the means mentioned
hereinbelow shall be punished by:
xxx xxx xxx
2. By means of any of the following false pretenses or
fraudulent acts executed prior to or simultaneously
with the commis sion of the fraud:
(a) By using fictitious name, or falsely
pretending to possess power, influence,
qualifications, property, credit, agency,
business or imaginary transactions, or by
means of other similar deceits;
TROPANG POTCHI
xxx xxx xxx
(d) By postdating a check, or issuing a check
in payment of an obligation the offender
knowing that at the time he had no funds in
the bank, or the funds deposited by him
were not sufficient to cover the amount of
the cheek without informing the payee of
such circumstances.
The scope of paragraph 2 (d), however, was deemed to exclude
checks issued in payment of pre-existing obligations. 10 The
rationale of this interpretation is that in estafa, the deceit causing
the defraudation must be prior to or simultaneous with the
commission of the fraud. In issuing a check as payment for a pre-
existing debt, the drawer does not derive any material benefit in
return or as consideration for its issuance. On the part of the
payee, he had already parted with his money or property before
the check is issued to him hence, he is not defrauded by means of
any "prior" or "simultaneous" deceit perpetrated on him by the
drawer of the check.
With the intention of remedying the situation and solving the
problem of how to bring checks issued in payment of pre-existing
debts within the ambit of Art. 315, an amendment was introduced
by the Congress of the Philippines in 1967, 11 which was enacted
into law as Republic Act No. 4885, revising the aforesaid proviso
to read as follows:
(d) By postdating a check, or issuing a check in
payment of an obligation when the offender had no
funds in the bank, or his funds deposited therein were
not sufficient to cover the amount of the check. The
failure of the drawer of the check to deposit the
amount necessary to cover his check within three (3)
days from receipt of notice from the bank and/or the
payee or holder that said check has been dishonored
for lack or insufficiency of funds shall be puma facie
evidence of deceit constituting false pretense or
fraudulent act.
However, the adoption of the amendment did not alter the
situation materially. A divided Court held in People vs. Sabio,
Jr.  12 that Article 315, as amended by Republic Act 4885, does not
cover checks issued in payment of pre-existing obligations, again
relying on the concept underlying the crime of estafa through
false pretenses or deceit—which is, that the deceit or false
pretense must be prior to or simultaneous with the commission of
the fraud.
42
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Since statistically it had been shown that the greater bulk of
dishonored checks consisted of those issued in payment of pre-
existing debts, 13 the amended provision evidently failed to cope
with the real problem and to deal effectively with the evil that it
was intended to eliminate or minimize.
With the foregoing factual and legal antecedents as a backdrop,
the then Interim Batasan confronted the problem squarely. It
opted to take a bold step and decided to enact a law dealing with
the problem of bouncing or worthless checks, without attaching
the law's umbilical cord to the existing penal provisions on estafa.
BP 22 addresses the problem directly and frontally and makes the
act of issuing a worthless check malum prohibitum. 14
The question now arises: Is B P 22 a valid law?
Previous efforts to deal with the problem of bouncing checks
within the ambit of the law on estafa did not evoke any
constitutional challenge. In contrast, BP 22 was challenged
promptly.
Those who question the constitutionality of BP 22 insist that: (1) it
offends the constitutional provision forbidding imprisonment for
debt; (2) it impairs freedom of contract; (3) it contravenes the
equal protection clause; (4) it unduly delegates legislative and
executive powers; and (5) its enactment is flawed in that during
its passage the Interim Batasan violated the constitutional
provision prohibiting amendments to a bill on Third Reading.
The constitutional challenge to BP 22 posed by petitioners
deserves a searching and thorough scrutiny and the most
deliberate consideration by the Court, involving as it does the
exercise of what has been described as "the highest and most
delicate function which belongs to the judicial department of the
government." 15
As we enter upon the task of passing on the validity of an act of a
co-equal and coordinate branch of the government, we need not
be reminded of the time-honored principle, deeply ingrained in
our jurisprudence, that a statute is presumed to be valid. Every
presumption must be indulged in favor of its constitutionality.
This is not to say that we approach our task with diffidence or
timidity. Where it is clear that the legislature has overstepped the
limits of its authority under the constitution we should not
hesitate to wield the axe and let it fall heavily, as fall it must, on
the offending statute.
III
Among the constitutional objections raised against BP 22, the
most serious is the alleged conflict between the statute and the
constitutional provision forbidding imprisonment for debt. It is
contended that the statute runs counter to the inhibition in the
Bill of Rights which states, "No person shall be imprisoned for
debt or non-payment of a poll tax." 16 Petitioners insist that, since
the offense under BP 22 is consummated only upon the dishonor
or non-payment of the check when it is presented to the drawee
bank, the statute is really a "bad debt law" rather than a "bad
check law." What it punishes is the non-payment of the check, not
the act of issuing it. The statute, it is claimed, is nothing more
than a veiled device to coerce payment of a debt under the threat
of penal sanction.
First of all it is essential to grasp the essence and scope of the
constitutional inhibition invoked by petitioners. Viewed in its
historical context, the constitutional prohibition against
imprisonment for debt is a safeguard that evolved gradually
during the early part of the nineteenth century in the various
states of the American Union as a result of the people's revulsion
at the cruel and inhumane practice, sanctioned by common law,
which permitted creditors to cause the incarceration of debtors
who could not pay their debts. At common law, money judgments
arising from actions for the recovery of a debt or for damages
from breach of a contract could be enforced against the person or
body of the debtor by writ of capias ad satisfaciendum. By means
of this writ, a debtor could be seized and imprisoned at the
instance of the creditor until he makes the satisfaction awarded.
As a consequence of the popular ground swell against such a
barbarous practice, provisions forbidding imprisonment for debt
came to be generally enshrined in the constitutions of various
states of the Union. 17
This humanitarian provision was transported to our shores by the
Americans at the turn of t0he century and embodied in our
organic laws. 18 Later, our fundamental law outlawed not only
imprisonment for debt, but also the infamous practice, native to
our shore, of throwing people in jail for non-payment of
the cedula or poll tax. 19
The reach and scope of this constitutional safeguard have been
the subject of judicial definition, both by our Supreme Court 20 and
by American State courts. 21 Mr. Justice Malcolm speaking for
the Supreme Court in Ganaway vs. Queen, 22 stated: "The 'debt'
intended to be covered by the constitutional guaranty has a well-
defined meaning. Organic provisions relieving from imprisonment
for debt, were intended to prevent commitment of debtors to
prison for liabilities arising from actions ex contractu The
inhibition was never meant to include damages arising in
actions ex delicto, for the reason that damages recoverable
therein do not arise from any contract entered into between the
parties but are imposed upon the defendant for the wrong he has
done and are considered as punishment, nor to fines and
penalties imposed by the courts in criminal proceedings as
punishments for crime."
TROPANG POTCHI
The law involved in Ganaway was not a criminal statute but the
Code of Procedure in Civil Actions (1909) which authorized the
arrest of the defendant in a civil case on grounds akin to those
which justify the issuance of a writ of attachment under our
present Rules of Court, such as imminent departure of the
defendant from the Philippines with intent to defraud his
creditors, or concealment, removal or disposition of properties in
fraud of creditors, etc. The Court, in that case, declared the
detention of the defendant unlawful, being violative of the
constitutional inhibition against imprisonment for debt, and
ordered his release. The Court, however, refrained from declaring
the statutory provision in question unconstitutional.
Closer to the case at bar is People v. Vera Reyes, 23 wherein a
statutory provision which made illegal and punishable the refusal
of an employer to pay, when he can do so, the salaries of his
employees or laborers on the fifteenth or last day of every month
or on Saturday every week, was challenged for being violative of
the constitutional prohibition against imprisonment for debt. The
constitutionality of the law in question was upheld by the Court, it
being within the authority of the legislature to enact such a law in
the exercise of the police power. It was held that "one of the
purposes of the law is to suppress possible abuses on the part of
the employers who hire laborers or employees without paying
them the salaries agreed upon for their services, thus causing
them financial difficulties. "The law was viewed not as a measure
to coerce payment of an obligation, although obviously such could
be its effect, but to banish a practice considered harmful to public
welfare.
IV
Has BP 22 transgressed the constitutional inhibition against
imprisonment for debt? To answer the question, it is necessary to
examine what the statute prohibits and punishes as an offense. Is
it the failure of the maker of the check to pay a debt? Or is it the
making and issuance of a worthless check in payment of a debt?
What is the gravamen of the offense? This question lies at the
heart of the issue before us.
The gravamen of the offense punished by BP 22 is the act of
making and issuing a worthless check or a check that is
dishonored upon its presentation for payment. It is not the non-
payment of an obligation which the law punishes. The law is not
intended or designed to coerce a debtor to pay his debt. The
thrust of the law is to prohibit, under pain of penal sanctions, the
making of worthless checks and putting them in circulation.
Because of its deleterious effects on the public interest, the
practice is proscribed by the law. The law punishes the act not as
an offense against property, but an offense against public order.
43
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Admittedly, the distinction may seem at first blush to appear
elusive and difficult to conceptualize. But precisely in the failure to
perceive the vital distinction lies the error of those who challenge
the validity of BP 22.
It may be constitutionally impermissible for the legislature to
penalize a person for non-payment of a debt ex contractu But
certainly it is within the prerogative of the lawmaking body to
proscribe certain acts deemed pernicious and inimical to public
welfare. Acts mala in se are not the only acts which the law can
punish. An act may not be considered by society as inherently
wrong, hence, not malum in se but because of the harm that it
inflicts on the community, it can be outlawed and criminally
punished as malum prohibitum. The state can do this in the
exercise of its police power.
The police power of the state has been described as "the most
essential, insistent and illimitable of powers" which enables it to
prohibit all things hurtful to the comfort, safety and welfare of
society. 24 It is a power not emanating from or conferred by the
constitution, but inherent in the state, plenary, "suitably vague
and far from precisely defined, rooted in the conception that man
in organizing the state and imposing upon the government
limitations to safeguard constitutional rights did not intend
thereby to enable individual citizens or group of citizens to
obstruct unreasonably the enactment of such salutary measures
to ensure communal peace, safety, good order and welfare." 25
The enactment of BP 22 is a declaration by the legislature that, as
a matter of public policy, the making and issuance of a worthless
check is deemed public nuisance to be abated by the imposition
of penal sanctions.
It is not for us to question the wisdom or impolicy of the statute.
It is sufficient that a reasonable nexus exists between means and
end. Considering the factual and legal antecedents that led to the
adoption of the statute, it is not difficult to understand the public
concern which prompted its enactment. It had been reported that
the approximate value of bouncing checks per day was close to
200 million pesos, and thereafter when overdrafts were banned
by the Central Bank, it averaged between 50 minion to 80 million
pesos a day. 26
By definition, a check is a bill of exchange drawn on a bank and
payable on demand. 27 It is a written order on a bank, purporting
to be drawn against a deposit of funds for the payment of all
events, of a sum of money to a certain person therein named or
to his order or to cash and payable on demand. 28 Unlike a
promissory note, a check is not a mere undertaking to pay an
amount of money. It is an order addressed to a bank and partakes
of a representation that the drawer has funds on deposit against
which the check is drawn, sufficient to ensure payment upon its
presentation to the bank. There is therefore an element of
certainty or assurance that the instrument wig be paid upon
presentation. For this reason, checks have become widely
accepted as a medium of payment in trade and commerce.
Although not legal tender, checks have come to be perceived as
convenient substitutes for currency in commercial and financial
transactions. The basis or foundation of such perception is
confidence. If such confidence is shakes the usefulness of checks
as currency substitutes would be greatly diminished or may
become nit Any practice therefore tending to destroy that
confidence should be deterred for the proliferation of worthless
checks can only create havoc in trade circles and the banking
community.
Recent statistics of the Central Bank show that one-third of the
entire money supply of the country, roughly totalling P32.3 billion,
consists of peso demand deposits; the remaining two. 29 These de
deposit thirds consists of currency in circulation. ma deposits in
the banks constitute the funds against which among others,
commercial papers like checks, are drawn. The magnitude of the
amount involved amply justifies the legitimate concern of the
state in preserving the integrity of the banking system. Flooding
the system with worthless checks is like pouring garbage into the
bloodstream of the nation's economy.
The effects of the issuance of a worthless check transcends the
private interests of the parties directly involved in the transaction
and touches the interests of the community at large. The mischief
it creates is not only a wrong to the payee or holder, but also an
injury to the public. The harmful practice of putting valueless
commercial papers in circulation, multiplied a thousand fold, can
very wen pollute the channels of trade and commerce, injure the
banking system and eventually hurt the welfare of society and the
public interest. As aptly stated — 30
The 'check flasher' does a great deal more than
contract a debt; he shakes the pillars of business; and
to my mind, it is a mistaken charity of judgment to
place him in the same category with the honest man
who is unable to pay his debts, and for whom the
constitutional inhibition against' imprisonment for
debt, except in cases of fraud was intended as a shield
and not a sword.
In sum, we find the enactment of BP 22 a valid exercise of the
police power and is not repugnant to the constitutional inhibition
against imprisonment for debt.
This Court is not unaware of the conflicting jurisprudence
obtaining in the various states of the United States on the
constitutionality of the "worthless check" acts. 31 It is needless to
warn that foreign jurisprudence must be taken with abundant
TROPANG POTCHI
caution. A caveat to be observed is that substantial differences
exist between our statute and the worthless check acts of those
states where the jurisprudence have evolved. One thing to
remember is that BP 22 was not lifted bodily from any existing
statute. Furthermore, we have to consider that judicial decisions
must be read in the context of the facts and the law involved and,
in a broader sense, of the social economic and political
environment—in short, the milieu—under which they were made.
We recognize the wisdom of the old saying that what is sauce for
the goose may not be sauce for the gander.
As stated elsewhere, police power is a dynamic force that enables
the state to meet the exigencies of changing times. There are
occasions when the police power of the state may even override a
constitutional guaranty. For example, there have been cases
wherein we held that the constitutional provision on non-
impairment of contracts must yield to the police power of the
state. 32 Whether the police power may override the
constitutional inhibition against imprisonment for debt is an issue
we do not have to address. This bridge has not been reached, so
there is no occasion to cross it.
We hold that BP 22 does not conflict with the constitutional
inhibition against imprisonment for debt.
V
We need not detain ourselves lengthily in the examination of the
other constitutional objections raised by petitioners, some of
which are rather flimsy.
We find no valid ground to sustain the contention that BP 22
impairs freedom of contract. The freedom of contract which is
constitutionally protected is freedom to enter into "lawful"
contracts. Contracts which contravene public policy are not
lawful. 33 Besides, we must bear in mind that checks can not be
categorized as mere contracts. It is a commercial instrument
which, in this modem day and age, has become a convenient
substitute for money; it forms part of the banking system and
therefore not entirely free from the regulatory power of the state.
Neither do we find substance in the claim that the statute in
question denies equal protection of the laws or is discriminatory,
since it penalizes the drawer of the check, but not the payee. It is
contended that the payee is just as responsible for the crime as
the drawer of the check, since without the indispensable
participation of the payee by his acceptance of the check there
would be no crime. This argument is tantamount to saying that, to
give equal protection, the law should punish both the swindler
and the swindled. The petitioners' posture ignores the well-
accepted meaning of the clause "equal protection of the laws."
44
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
The clause does not preclude classification of individuals, who
may be accorded different treatment under the law as long as the
classification is no unreasonable or arbitrary. 34
It is also suggested that BP 22 constitutes undue or improper
delegation of legislative powers, on the theory that the offense is
not completed by the sole act of the maker or drawer but is made
to depend on the will of the payee. If the payee does not present
the check to the bank for payment but instead keeps it, there
would be no crime. The logic of the argument stretches to
absurdity the meaning of "delegation of legislative power." What
cannot be delegated is the power to legislate, or the power to
make laws. 35 which means, as applied to the present case, the
power to define the offense sought to be punished and to
prescribe the penalty. By no stretch of logic or imagination can it
be said that the power to define the crime and prescribe the
penalty therefor has been in any manner delegated to the payee.
Neither is there any provision in the statute that can be
construed, no matter how remotely, as undue delegation of
executive power. The suggestion that the statute unlawfully
delegates its enforcement to the offended party is farfetched.
Lastly, the objection has been raised that Section 9 (2) of Article
VII of the 1973 Constitution was violated by the legislative body
when it enacted BP 22 into law. This constitutional provision
prohibits the introduction of amendments to a bill during the
Third Reading. It is claimed that during its Third Reading, the bill
which eventually became BP 22 was amended in that the text of
the second paragraph of Section 1 of the bill as adopted on
Second Reading was altered or changed in the printed text of the
bill submitted for approval on Third Reading.
A careful review of the record of the proceedings of the Interim
Batasan on this matter shows that, indeed, there was some
confusion among Batasan Members on what was the exact text of
the paragraph in question which the body approved on Second
Reading. 36 Part of the confusion was due apparently to the fact
that during the deliberations on Second Reading (the amendment
period), amendments were proposed orally and approved by the
body or accepted by the sponsor, hence, some members might
not have gotten the complete text of the provisions of the bill as
amended and approved on Second Reading. However, it is clear
from the records that the text of the second paragraph of Section
1 of BP 22 is the text which was actually approved by the body on
Second Reading on February 7, 1979, as reflected in the approved
Minutes for that day. In any event, before the bin was submitted
for final approval on Third Reading, the Interim Batasan created a
Special Committee to investigate the matter, and the Committee
in its report, which was approved by the entire body on March 22,
1979, stated that "the clause in question was ... an authorized
amendment of the bill and the printed copy thereof reflects
accurately the provision in question as approved on Second
Reading. 37 We therefore, find no merit in the petitioners' claim
that in the enactment of BP 22 the provisions of Section 9 (2) of
Article VIII of the 1973 Constitution were violated.
WHEREFORE, judgment is rendered granting the petition in G.R.
No. 75789 and setting aside the order of the respondent Judge
dated August 19, 1986. The petitions in G.R. Nos. 63419, 66839-
42, 71654, 74524-25, 75122-49, 75812-13 and 75765-67 are
hereby dismissed and the temporary restraining order issued in
G.R. Nos. 74524-25 is lifted. With costs against private petitioners.
SO ORDERED.
G.R. No. 89572 December 21, 1989
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS)
and DIRECTOR OF CENTER FOR EDUCATIONAL
MEASUREMENT, petitioners,  petition. Judge Teresita Dizon-Capulong held that the petitioner
vs.
ROBERTO REY C. SAN DIEGO and JUDGE TERESITA DIZON-
CAPULONG, in her capacity as Presiding Judge of the Regional
Trial Court of Valenzuela, Metro Manila, Branch
172, respondents.
Ramon M. Guevara for private respondent.
 
CRUZ, J.:
The issue before us is mediocrity. The question is whether a
person who has thrice failed the National Medical Admission Test
(NMAT) is entitled to take it again.
The petitioner contends he may not, under its rule that-
h) A student shall be allowed only three (3)
chances to take the NMAT. After three (3)
successive failures, a student shall not be
allowed to take the NMAT for the fourth
time.
The private respondent insists he can, on constitutional grounds.
But first the facts.
TROPANG POTCHI
The private respondent is a graduate of the University of the East
with a degree of Bachelor of Science in Zoology. The petitioner
claims that he took the NMAT three times and flunked it as many
times. 1 When he applied to take it again, the petitioner rejected
his application on the basis of the aforesaid rule. He then went to
the Regional Trial Court of Valenzuela, Metro Manila, to compel
his admission to the test.
In his original petition for mandamus, he first invoked his
constitutional rights to academic freedom and quality education.
By agreement of the parties, the private respondent was allowed
to take the NMAT scheduled on April 16, 1989, subject to the
outcome of his petition. 2 In an amended petition filed with leave
of court, he squarely challenged the constitutionality of MECS
Order No. 12, Series of 1972, containing the above-cited rule. The
additional grounds raised were due process and equal protection.
After hearing, the respondent judge rendered a decision on July 4,
1989, declaring the challenged order invalid and granting the
had been deprived of his right to pursue a medical education
through an arbitrary exercise of the police power. 3
We cannot sustain the respondent judge. Her decision must be
reversed.
In Tablarin v. Gutierrez, 4 this Court upheld the constitutionality of
the NMAT as a measure intended to limit the admission to
medical schools only to those who have initially proved their
competence and preparation for a medical education. Justice
Florentino P. Feliciano declared for a unanimous Court:
Perhaps the only issue that needs some
consideration is whether there is some
reasonable relation between the
prescribing of passing the NMAT as a
condition for admission to medical school
on the one hand, and the securing of the
health and safety of the general
community, on the other hand. This
question is perhaps most usefully
approached by recalling that the regulation
of the pratice of medicine in all its branches
has long been recognized as a reasonable
method of protecting the health and safety
of the public. That the power to regulate
and control the practice of medicine
includes the power to regulate admission to
the ranks of those authorized to practice
medicine, is also well recognized. Thus,
legislation and administrative regulations
requiring those who wish to practice
45
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
medicine first to take and pass medical
board examinations have long ago been
recognized as valid exercises of
governmental power. Similarly, the
establishment of minimum medical
educational requirements-i.e., the
completion of prescribed courses in a
recognized medical school-for admission to
the medical profession, has also been
sustained as a legitimate exercise of the
regulatory authority of the state. What we
have before us in the instant case is closely
related: the regulation of access to medical
schools. MECS Order No. 52, s. 1985, as
noted earlier, articulates the rationale of
regulation of this type: the improvement of
the professional and technical quality of the
graduates of medical schools, by upgrading
the quality of those admitted to the student
body of the medical schools. That upgrading
is sought by selectivity in the process of
admission, selectivity consisting, among
other things, of limiting admission to those
who exhibit in the required degree the
aptitude for medical studies and eventually
for medical practice. The need to maintain,
and the difficulties of maintaining, high
standards in our professional schools in
general, and medical schools in particular,
in the current state of our social and
economic development, are widely known.
We believe that the government is entitled
to prescribe an admission test like the
NMAT as a means of achieving its stated
objective of "upgrading the selection of
applicants into [our] medical schools" and
of "improv[ing] the quality of medical
education in the country." Given the
widespread use today of such admission
tests in, for instance, medical schools in the
United States of America (the Medical
College Admission Test [MCAT] and quite
probably, in other countries with far more
developed educational resources than our
own, and taking into account the failure or
inability of the petitioners to even attempt
to prove otherwise, we are entitled to hold
that the NMAT is reasonably related to the
securing of the ultimate end of legislation
and regulation in this area. That end, it is
useful to recall, is the protection of the
public from the potentially deadly effects of
incompetence and ignorance in those who
TROPANG POTCHI
would undertake to treat our bodies and as a plumber, he should be so advised and adviced. Of course, he
minds for disease or trauma. may not be forced to be a plumber, but on the other hand he may
not force his entry into the bar. By the same token, a student who
has demonstrated promise as a pianist cannot be shunted aside to
However, the respondent judge agreed with the petitioner that
take a course in nursing, however appropriate this career may be
the said case was not applicable. Her reason was that it upheld
for others.
only the requirement for the admission test and said nothing
about the so-called "three-flunk rule."
The right to quality education invoked by the private respondent
is not absolute. The Constitution also provides that "every citizen
We see no reason why the rationale in the Tablarin case cannot
has the right to choose a profession or course of study, subject to
apply to the case at bar. The issue raised in both cases is the
fair, reasonable and equitable admission and academic
academic preparation of the applicant. This may be gauged at
requirements. 6
least initially by the admission test and, indeed with more
reliability, by the three-flunk rule. The latter cannot be regarded
any less valid than the former in the regulation of the medical The private respondent must yield to the challenged rule and give
profession. way to those better prepared. Where even those who have
qualified may still not be accommodated in our already crowded
medical schools, there is all the more reason to bar those who,
There is no need to redefine here the police power of the State.
like him, have been tested and found wanting.
Suffice it to repeat that the power is validly exercised if (a) the
interests of the public generally, as distinguished from those of a
particular class, require the interference of the State, and (b) the The contention that the challenged rule violates the equal
means employed are reasonably necessary to the attainment of protection clause is not well-taken. A law does not have to
the object sought to be accomplished and not unduly oppressive operate with equal force on all persons or things to be
upon individuals. 5 conformable to Article III, Section 1 of the Constitution.
In other words, the proper exercise of the police power requires There can be no question that a substantial distinction exists
the concurrence of a lawful subject and a lawful method. between medical students and other students who are not
subjected to the NMAT and the three-flunk rule. The medical
profession directly affects the very lives of the people, unlike
The subject of the challenged regulation is certainly within the
other careers which, for this reason, do not require more vigilant
ambit of the police power. It is the right and indeed the
regulation. The accountant, for example, while belonging to an
responsibility of the State to insure that the medical profession is
equally respectable profession, does not hold the same delicate
not infiltrated by incompetents to whom patients may unwarily
responsibility as that of the physician and so need not be similarly
entrust their lives and health.
treated.
The method employed by the challenged regulation is not
There would be unequal protection if some applicants who have
irrelevant to the purpose of the law nor is it arbitrary or
passed the tests are admitted and others who have also qualified
oppressive. The three-flunk rule is intended to insulate the
are denied entrance. In other words, what the equal protection
medical schools and ultimately the medical profession from the
requires is equality among equals.
intrusion of those not qualified to be doctors.
The Court feels that it is not enough to simply invoke the right to
While every person is entitled to aspire to be a doctor, he does
quality education as a guarantee of the Constitution: one must
not have a constitutional right to be a doctor. This is true of any
show that he is entitled to it because of his preparation and
other calling in which the public interest is involved; and the
promise. The private respondent has failed the NMAT five
closer the link, the longer the bridge to one's ambition. The State
times. 7 While his persistence is noteworthy, to say the least, it is
has the responsibility to harness its human resources and to see
certainly misplaced, like a hopeless love.
to it that they are not dissipated or, no less worse, not used at all.
These resources must be applied in a manner that will best
promote the common good while also giving the individual a No depreciation is intended or made against the private
sense of satisfaction. respondent. It is stressed that a person who does not qualify in
the NMAT is not an absolute incompetent unfit for any work or
occupation. The only inference is that he is a probably better, not
A person cannot insist on being a physician if he will be a menace
to his patients. If one who wants to be a lawyer may prove better
46
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
for the medical profession, but for another calling that has not
excited his interest.
In the former, he may be a bungler or at least lackluster; in the
latter, he is more likely to succeed and may even be outstanding.
It is for the appropriate calling that he is entitled to quality
education for the full harnessing of his potentials and the
sharpening of his latent talents toward what may even be a
brilliant future.
We cannot have a society of square pegs in round holes, of
dentists who should never have left the farm and engineers who
should have studied banking and teachers who could be better as
merchants.
It is time indeed that the State took decisive steps to regulate and
enrich our system of education by directing the student to the
course for which he is best suited as determined by initial tests
and evaluations. Otherwise, we may be "swamped with
mediocrity," in the words of Justice Holmes, not because we are
lacking in intelligence but because we are a nation of misfits.
WHEREFORE, the petition is GRANTED. The decision of the
respondent court dated January 13, 1989, is REVERSED, with costs
against the private respondent. It is so ordered.
G.R. No. 74457 March 20, 1987
RESTITUTO YNOT, petitioner, 
vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER,
INTEGRATED NATIONAL POLICE, BAROTAC NUEVO, ILOILO and
THE REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY,
REGION IV, ILOILO CITY, respondents.
Ramon A. Gonzales for petitioner.
 
CRUZ, J.:
The essence of due process is distilled in the immortal cry of
Themistocles to Alcibiades "Strike — but hear me first!" It is this
cry that the petitioner in effect repeats here as he challenges the
constitutionality of Executive Order No. 626-A.
The said executive order reads in full as follows:
WHEREAS, the President has given orders
prohibiting the interprovincial movement of
carabaos and the slaughtering of carabaos
not complying with the requirements of
Executive Order No. 626 particularly with
respect to age;
WHEREAS, it has been observed that
despite such orders the violators still
manage to circumvent the prohibition
against inter-provincial movement of
carabaos by transporting carabeef instead;
and
WHEREAS, in order to achieve the purposes
and objectives of Executive Order No. 626
and the prohibition against interprovincial
movement of carabaos, it is necessary to
strengthen the said Executive Order and
provide for the disposition of the carabaos
and carabeef subject of the violation;
NOW, THEREFORE, I, FERDINAND E.
MARCOS, President of the Philippines, by
virtue of the powers vested in me by the
Constitution, do hereby promulgate the
following:
SECTION 1. Executive Order No. 626 is
hereby amended such that henceforth, no
carabao regardless of age, sex, physical
condition or purpose and no carabeef shall
be transported from one province to
another. The carabao or carabeef
transported in violation of this Executive
Order as amended shall be subject to
confiscation and forfeiture by the
government, to be distributed to charitable
institutions and other similar institutions as
the Chairman of the National Meat
Inspection Commission may ay see fit, in
the case of carabeef, and to deserving
farmers through dispersal as the Director of
Animal Industry may see fit, in the case of
carabaos.
SECTION 2. This Executive Order shall take
effect immediately.
TROPANG POTCHI
Done in the City of Manila, this 25th day of
October, in the year of Our Lord, nineteen
hundred and eighty.
(SGD.) FERD
President
Republic of
The petitioner had transported six carabaos in a pump boat from
Masbate to Iloilo on January 13, 1984, when they were
confiscated by the police station commander of Barotac Nuevo,
Iloilo, for violation of the above measure. 1 The petitioner sued
for recovery, and the Regional Trial Court of Iloilo City issued a
writ of replevin upon his filing of a supersedeas bond of
P12,000.00. After considering the merits of the case, the court
sustained the confiscation of the carabaos and, since they could
no longer be produced, ordered the confiscation of the bond. The
court also declined to rule on the constitutionality of the
executive order, as raise by the petitioner, for lack of authority
and also for its presumed validity. 2
The petitioner appealed the decision to the Intermediate
Appellate Court,* 3 which upheld the trial court, ** and he has
now come before us in this petition for review on certiorari.
The thrust of his petition is that the executive order is
unconstitutional insofar as it authorizes outright confiscation of
the carabao or carabeef being transported across provincial
boundaries. His claim is that the penalty is invalid because it is
imposed without according the owner a right to be heard before a
competent and impartial court as guaranteed by due process. He
complains that the measure should not have been presumed, and
so sustained, as constitutional. There is also a challenge to the
improper exercise of the legislative power by the former
President under Amendment No. 6 of the 1973 Constitution. 4
While also involving the same executive order, the case
of Pesigan v. Angeles  5 is not applicable here. The question raised
there was the necessity of the previous publication of the
measure in the Official Gazette before it could be considered
enforceable. We imposed the requirement then on the basis of
due process of law. In doing so, however, this Court did not, as
contended by the Solicitor General, impliedly affirm the
constitutionality of Executive Order No. 626-A. That is an entirely
different matter.
This Court has declared that while lower courts should observe a
becoming modesty in examining constitutional questions, they are
nonetheless not prevented from resolving the same whenever
47
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
warranted, subject only to review by the highest tribunal. 6 We
have jurisdiction under the Constitution to "review, revise,
reverse, modify or affirm on appeal or certiorari, as the law or
rules of court may provide," final judgments and orders of lower
courts in, among others, all cases involving the constitutionality of
certain measures. 7 This simply means that the resolution of such
cases may be made in the first instance by these lower courts.
And while it is true that laws are presumed to be constitutional,
that presumption is not by any means conclusive and in fact may
be rebutted. Indeed, if there be a clear showing of their invalidity,
and of the need to declare them so, then "will be the time to
make the hammer fall, and heavily," 8 to recall Justice Laurel's
trenchant warning. Stated otherwise, courts should not follow the
path of least resistance by simply presuming the constitutionality
of a law when it is questioned. On the contrary, they should probe
the issue more deeply, to relieve the abscess, paraphrasing
another distinguished jurist, 9 and so heal the wound or excise the
affliction.
Judicial power authorizes this; and when the exercise is
demanded, there should be no shirking of the task for fear of
retaliation, or loss of favor, or popular censure, or any other
similar inhibition unworthy of the bench, especially this Court.
The challenged measure is denominated an executive order but it
is really presidential decree, promulgating a new rule instead of
merely implementing an existing law. It was issued by President
Marcos not for the purpose of taking care that the laws were
faithfully executed but in the exercise of his legislative authority
under Amendment No. 6. It was provided thereunder that
whenever in his judgment there existed a grave emergency or a
threat or imminence thereof or whenever the legislature failed or
was unable to act adequately on any matter that in his judgment
required immediate action, he could, in order to meet the
exigency, issue decrees, orders or letters of instruction that were
to have the force and effect of law. As there is no showing of any
exigency to justify the exercise of that extraordinary power then,
the petitioner has reason, indeed, to question the validity of the
executive order. Nevertheless, since the determination of the
grounds was supposed to have been made by the President "in his
judgment, " a phrase that will lead to protracted discussion not
really necessary at this time, we reserve resolution of this matter
until a more appropriate occasion. For the nonce, we confine
ourselves to the more fundamental question of due process.
It is part of the art of constitution-making that the provisions of
the charter be cast in precise and unmistakable language to avoid
controversies that might arise on their correct interpretation. That
is the Ideal. In the case of the due process clause, however, this
rule was deliberately not followed and the wording was purposely
kept ambiguous. In fact, a proposal to delineate it more clearly
was submitted in the Constitutional Convention of 1934, but it
was rejected by Delegate Jose P. Laurel, Chairman of the
Committee on the Bill of Rights, who forcefully argued against it.
He was sustained by the body. 10
The due process clause was kept intentionally vague so it would
remain also conveniently resilient. This was felt necessary because
due process is not, like some provisions of the fundamental law,
an "iron rule" laying down an implacable and immutable
command for all seasons and all persons. Flexibility must be the
best virtue of the guaranty. The very elasticity of the due process
clause was meant to make it adapt easily to every situation,
enlarging or constricting its protection as the changing times and
circumstances may require.
Aware of this, the courts have also hesitated to adopt their own
specific description of due process lest they confine themselves in
a legal straitjacket that will deprive them of the elbow room they
may need to vary the meaning of the clause whenever indicated.
Instead, they have preferred to leave the import of the protection
open-ended, as it were, to be "gradually ascertained by the
process of inclusion and exclusion in the course of the decision of
cases as they arise." 11 Thus, Justice Felix Frankfurter of the U.S.
Supreme Court, for example, would go no farther than to define
due process — and in so doing sums it all up — as nothing more
and nothing less than "the embodiment of the sporting Idea of
fair play." 12
When the barons of England extracted from their sovereign liege
the reluctant promise that that Crown would thenceforth not
proceed against the life liberty or property of any of its subjects
except by the lawful judgment of his peers or the law of the land,
they thereby won for themselves and their progeny that splendid
guaranty of fairness that is now the hallmark of the free society.
The solemn vow that King John made at Runnymede in 1215 has
since then resounded through the ages, as a ringing reminder to
all rulers, benevolent or base, that every person, when confronted
by the stern visage of the law, is entitled to have his say in a fair
and open hearing of his cause.
The closed mind has no place in the open society. It is part of the
sporting Idea of fair play to hear "the other side" before an
opinion is formed or a decision is made by those who sit in
judgment. Obviously, one side is only one-half of the question; the
other half must also be considered if an impartial verdict is to be
reached based on an informed appreciation of the issues in
contention. It is indispensable that the two sides complement
each other, as unto the bow the arrow, in leading to the correct
ruling after examination of the problem not from one or the other
perspective only but in its totality. A judgment based on less that
this full appraisal, on the pretext that a hearing is unnecessary or
useless, is tainted with the vice of bias or intolerance or
TROPANG POTCHI
ignorance, or worst of all, in repressive regimes, the insolence of
power.
The minimum requirements of due process are notice and
hearing 13 which, generally speaking, may not be dispensed with
because they are intended as a safeguard against official
arbitrariness. It is a gratifying commentary on our judicial system
that the jurisprudence of this country is rich with applications of
this guaranty as proof of our fealty to the rule of law and the
ancient rudiments of fair play. We have consistently declared that
every person, faced by the awesome power of the State, is
entitled to "the law of the land," which Daniel Webster described
almost two hundred years ago in the famous Dartmouth College
Case, 14 as "the law which hears before it condemns, which
proceeds upon inquiry and renders judgment only after trial." It
has to be so if the rights of every person are to be secured beyond
the reach of officials who, out of mistaken zeal or plain arrogance,
would degrade the due process clause into a worn and empty
catchword.
This is not to say that notice and hearing are imperative in every
case for, to be sure, there are a number of admitted exceptions.
The conclusive presumption, for example, bars the admission of
contrary evidence as long as such presumption is based on human
experience or there is a rational connection between the fact
proved and the fact ultimately presumed therefrom. 15 There are
instances when the need for expeditions action will justify
omission of these requisites, as in the summary abatement of a
nuisance per se, like a mad dog on the loose, which may be killed
on sight because of the immediate danger it poses to the safety
and lives of the people. Pornographic materials, contaminated
meat and narcotic drugs are inherently pernicious and may be
summarily destroyed. The passport of a person sought for a
criminal offense may be cancelled without hearing, to compel his
return to the country he has fled. 16Filthy restaurants may be
summarily padlocked in the interest of the public health and
bawdy houses to protect the public morals. 17 In such instances,
previous judicial hearing may be omitted without violation of due
process in view of the nature of the property involved or the
urgency of the need to protect the general welfare from a clear
and present danger.
The protection of the general welfare is the particular function of
the police power which both restraints and is restrained by due
process. The police power is simply defined as the power inherent
in the State to regulate liberty and property for the promotion of
the general welfare. 18 By reason of its function, it extends to all
the great public needs and is described as the most pervasive, the
least limitable and the most demanding of the three inherent
powers of the State, far outpacing taxation and eminent domain.
The individual, as a member of society, is hemmed in by the police
power, which affects him even before he is born and follows him
still after he is dead — from the womb to beyond the tomb — in
48
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
practically everything he does or owns. Its reach is virtually
limitless. It is a ubiquitous and often unwelcome intrusion. Even
so, as long as the activity or the property has some relevance to
the public welfare, its regulation under the police power is not
only proper but necessary. And the justification is found in the
venerable Latin maxims, Salus populi est suprema lex and Sic
utere tuo ut alienum non laedas, which call for the subordination
of individual interests to the benefit of the greater number.
It is this power that is now invoked by the government to justify
Executive Order No. 626-A, amending the basic rule in Executive
Order No. 626, prohibiting the slaughter of carabaos except under
certain conditions. The original measure was issued for the
reason, as expressed in one of its Whereases, that "present
conditions demand that the carabaos and the buffaloes be
conserved for the benefit of the small farmers who rely on them
for energy needs." We affirm at the outset the need for such a
measure. In the face of the worsening energy crisis and the
increased dependence of our farms on these traditional beasts of
burden, the government would have been remiss, indeed, if it had
not taken steps to protect and preserve them.
A similar prohibition was challenged in United States v.
Toribio, 19 where a law regulating the registration, branding and
slaughter of large cattle was claimed to be a deprivation of
property without due process of law. The defendant had been
convicted thereunder for having slaughtered his own carabao
without the required permit, and he appealed to the Supreme
Court. The conviction was affirmed. The law was sustained as a
valid police measure to prevent the indiscriminate killing of
carabaos, which were then badly needed by farmers. An epidemic
had stricken many of these animals and the reduction of their
number had resulted in an acute decline in agricultural output,
which in turn had caused an incipient famine. Furthermore,
because of the scarcity of the animals and the consequent
increase in their price, cattle-rustling had spread alarmingly,
necessitating more effective measures for the registration and
branding of these animals. The Court held that the questioned
statute was a valid exercise of the police power and declared in
part as follows:
To justify the State in thus interposing its
authority in behalf of the public, it must
appear, first, that the interests of the public
generally, as distinguished from those of a
particular class, require such interference;
and second, that the means are reasonably
necessary for the accomplishment of the
purpose, and not unduly oppressive upon
individuals. ...
TROPANG POTCHI
From what has been said, we think it is clear made to apply to it as otherwise, so says executive order, it could
that the enactment of the provisions of the be easily circumvented by simply killing the animal. Perhaps so.
statute under consideration was required However, if the movement of the live animals for the purpose of
by "the interests of the public generally, as preventing their slaughter cannot be prohibited, it should follow
distinguished from those of a particular that there is no reason either to prohibit their transfer as, not to
class" and that the prohibition of the be flippant dead meat.
slaughter of carabaos for human
consumption, so long as these animals are
Even if a reasonable relation between the means and the end
fit for agricultural work or draft purposes
were to be assumed, we would still have to reckon with the
was a "reasonably necessary" limitation on
sanction that the measure applies for violation of the prohibition.
private ownership, to protect the
The penalty is outright confiscation of the carabao or carabeef
community from the loss of the services of
being transported, to be meted out by the executive authorities,
such animals by their slaughter by
usually the police only. In the Toribio Case, the statute was
improvident owners, tempted either by
sustained because the penalty prescribed was fine and
greed of momentary gain, or by a desire to
imprisonment, to be imposed by the court after trial and
enjoy the luxury of animal food, even when
conviction of the accused. Under the challenged measure,
by so doing the productive power of the
significantly, no such trial is prescribed, and the property being
community may be measurably and
transported is immediately impounded by the police and
dangerously affected.
declared, by the measure itself, as forfeited to the government.
In the light of the tests mentioned above, we hold with the
In the instant case, the carabaos were arbitrarily confiscated by
Toribio Case that the carabao, as the poor man's tractor, so to
the police station commander, were returned to the petitioner
speak, has a direct relevance to the public welfare and so is a
only after he had filed a complaint for recovery and given
lawful subject of Executive Order No. 626. The method chosen in
a supersedeas bond of P12,000.00, which was ordered
the basic measure is also reasonably necessary for the purpose
confiscated upon his failure to produce the carabaos when
sought to be achieved and not unduly oppressive upon
ordered by the trial court. The executive order defined the
individuals, again following the above-cited doctrine. There is no
prohibition, convicted the petitioner and immediately imposed
doubt that by banning the slaughter of these animals except
punishment, which was carried out forthright. The measure struck
where they are at least seven years old if male and eleven years
at once and pounced upon the petitioner without giving him a
old if female upon issuance of the necessary permit, the executive
chance to be heard, thus denying him the centuries-old guaranty
order will be conserving those still fit for farm work or breeding
of elementary fair play.
and preventing their improvident depletion.
It has already been remarked that there are occasions when
But while conceding that the amendatory measure has the same
notice and hearing may be validly dispensed with notwithstanding
lawful subject as the original executive order, we cannot say with
the usual requirement for these minimum guarantees of due
equal certainty that it complies with the second
process. It is also conceded that summary action may be validly
requirement, viz., that there be a lawful method. We note that to
taken in administrative proceedings as procedural due process is
strengthen the original measure, Executive Order No. 626-A
not necessarily judicial only. 20 In the exceptional cases accepted,
imposes an absolute ban not on theslaughter of the carabaos but
however. there is a justification for the omission of the right to a
on their movement, providing that "no carabao regardless of age,
previous hearing, to wit, the immediacy of the problem sought to
sex, physical condition or purpose (sic) and no carabeef shall be
be corrected and the urgency of the need to correct it.
transported from one province to another." The object of the
prohibition escapes us. The reasonable connection between the
means employed and the purpose sought to be achieved by the In the case before us, there was no such pressure of time or
questioned measure is missing action calling for the petitioner's peremptory treatment. The
properties involved were not even inimical per se as to require
their instant destruction. There certainly was no reason why the
We do not see how the prohibition of the inter-provincial
offense prohibited by the executive order should not have been
transport of carabaos can prevent their indiscriminate slaughter,
proved first in a court of justice, with the accused being accorded
considering that they can be killed anywhere, with no less
all the rights safeguarded to him under the Constitution.
difficulty in one province than in another. Obviously, retaining the
Considering that, as we held in Pesigan v. Angeles, 21 Executive
carabaos in one province will not prevent their slaughter there,
Order No. 626-A is penal in nature, the violation thereof should
any more than moving them to another province will make it
have been pronounced not by the police only but by a court of
easier to kill them there. As for the carabeef, the prohibition is
49
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
justice, which alone would have had the authority to impose the
prescribed penalty, and only after trial and conviction of the
accused.
We also mark, on top of all this, the questionable manner of the
disposition of the confiscated property as prescribed in the
questioned executive order. It is there authorized that the seized
property shall "be distributed to charitable institutions and other
similar institutions as the Chairman of the National Meat
Inspection Commissionmay see fit, in the case of carabeef, and to
deserving farmers through dispersal as the Director of Animal
Industrymay see fit, in the case of carabaos." (Emphasis supplied.)
The phrase "may see fit" is an extremely generous and dangerous
condition, if condition it is. It is laden with perilous opportunities
for partiality and abuse, and even corruption. One searches in
vain for the usual standard and the reasonable guidelines, or
better still, the limitations that the said officers must observe
when they make their distribution. There is none. Their options
are apparently boundless. Who shall be the fortunate
beneficiaries of their generosity and by what criteria shall they be
chosen? Only the officers named can supply the answer, they and
they alone may choose the grantee as they see fit, and in their
own exclusive discretion. Definitely, there is here a "roving
commission," a wide and sweeping authority that is not "canalized
within banks that keep it from overflowing," in short, a clearly
profligate and therefore invalid delegation of legislative powers.
To sum up then, we find that the challenged measure is an invalid
exercise of the police power because the method employed to
conserve the carabaos is not reasonably necessary to the purpose
of the law and, worse, is unduly oppressive. Due process is
violated because the owner of the property confiscated is denied
the right to be heard in his defense and is immediately
condemned and punished. The conferment on the administrative
authorities of the power to adjudge the guilt of the supposed
offender is a clear encroachment on judicial functions and
militates against the doctrine of separation of powers. There is,
finally, also an invalid delegation of legislative powers to the
officers mentioned therein who are granted unlimited discretion
in the distribution of the properties arbitrarily taken. For these
reasons, we hereby declare Executive Order No. 626-A
unconstitutional.
We agree with the respondent court, however, that the police
station commander who confiscated the petitioner's carabaos is
not liable in damages for enforcing the executive order in
accordance with its mandate. The law was at that time
presumptively valid, and it was his obligation, as a member of the
police, to enforce it. It would have been impertinent of him, being
a mere subordinate of the President, to declare the executive
order unconstitutional and, on his own responsibility alone, refuse
to execute it. Even the trial court, in fact, and the Court of Appeals
itself did not feel they had the competence, for all their superior
authority, to question the order we now annul.
The Court notes that if the petitioner had not seen fit to assert
and protect his rights as he saw them, this case would never have
reached us and the taking of his property under the challenged
measure would have become afait accompli despite its invalidity.
We commend him for his spirit. Without the present challenge,
the matter would have ended in that pump boat in Masbate and
another violation of the Constitution, for all its obviousness,
would have been perpetrated, allowed without protest, and soon
forgotten in the limbo of relinquished rights.
The strength of democracy lies not in the rights it guarantees but
in the courage of the people to invoke them whenever they are
ignored or violated. Rights are but weapons on the wall if, like
expensive tapestry, all they do is embellish and impress. Rights, as
weapons, must be a promise of protection. They become truly
meaningful, and fulfill the role assigned to them in the free
society, if they are kept bright and sharp with use by those who
are not afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared
unconstitutional. Except as affirmed above, the decision of the
Court of Appeals is reversed. The supersedeas bond is cancelled
and the amount thereof is ordered restored to the petitioner. No
costs.
SO ORDERED.
G.R. No. L-34915 June 24, 1983
CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF
QUEZON CITY, petitioners, 
vs.
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First
Instance of Rizal, Quezon City, Branch XVIII; HIMLAYANG
PILIPINO, INC., respondents.
City Fiscal for petitioners.
Manuel Villaruel, Jr. and Feliciano Tumale for respondents.
GUTIERREZ, JR., J.:
TROPANG POTCHI
This is a petition for review which seeks the reversal of the
decision of the Court of First Instance of Rizal, Branch XVIII
declaring Section 9 of Ordinance No. 6118, S-64, of the Quezon
City Council null and void.
Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE
REGULATING THE ESTABLISHMENT, MAINTENANCE AND
OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY OR BURIAL
GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND
PROVIDING PENALTIES FOR THE VIOLATION THEREOF" provides:
Sec. 9. At least six (6) percent of the total
area of the memorial park cemetery shall
be set aside for charity burial of deceased
persons who are paupers and have been
residents of Quezon City for at least 5 years
prior to their death, to be determined by
competent City Authorities. The area so
designated shall immediately be developed
and should be open for operation not later
than six months from the date of approval
of the application.
For several years, the aforequoted section of the Ordinance was
not enforced by city authorities but seven years after the
enactment of the ordinance, the Quezon City Council passed the
following resolution:
RESOLVED by the council of Quezon
assembled, to request, as it does hereby
request the City Engineer, Quezon City, to
stop any further selling and/or transaction
of memorial park lots in Quezon City where
the owners thereof have failed to donate
the required 6% space intended for paupers
burial.
Pursuant to this petition, the Quezon City Engineer notified
respondent Himlayang Pilipino, Inc. in writing that Section 9 of
Ordinance No. 6118, S-64 would be enforced
Respondent Himlayang Pilipino reacted by filing with the Court of
First Instance of Rizal Branch XVIII at Quezon City, a petition for
declaratory relief, prohibition and mandamus with preliminary
injunction (Sp. Proc. No. Q-16002) seeking to annul Section 9 of
the Ordinance in question The respondent alleged that the same
is contrary to the Constitution, the Quezon City Charter, the Local
Autonomy Act, and the Revised Administrative Code.
There being no issue of fact and the questions raised being purely
legal both petitioners and respondent agreed to the rendition of a
50
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

judgment on the pleadings. The respondent court, therefore, be justified under the power granted to euphemistically termed by the respondents,
rendered the decision declaring Section 9 of Ordinance No. 6118, Quezon City to tax, fix the license fee, 'donation'
S-64 null and void. and regulatesuch other business, trades,
and occupation as may be established or
We now come to the question whether or
practised in the City.' (Subsections 'C', Sec.
A motion for reconsideration having been denied, the City not Section 9 of the ordinance in question is
12, R.A. 537).
Government and City Council filed the instant petition. a valid exercise of police power. The police
power of Quezon City is defined in sub-
The power to regulate does not include the section 00, Sec. 12, Rep. Act 537 which
Petitioners argue that the taking of the respondent's property is a
power to prohibit (People vs. Esguerra, 81 reads as follows:
valid and reasonable exercise of police power and that the land is
PhiL 33, Vega vs. Municipal Board of Iloilo,
taken for a public use as it is intended for the burial ground of
L-6765, May 12, 1954; 39 N.J. Law, 70,
paupers. They further argue that the Quezon City Council is (00) To make such
Mich. 396). A fortiori, the power to regulate
authorized under its charter, in the exercise of local police power, further ordinance and
does not include the power to confiscate.
" to make such further ordinances and resolutions not repugnant regulations not
The ordinance in question not only
to law as may be necessary to carry into effect and discharge the repugnant to law as
confiscates but also prohibits the operation
powers and duties conferred by this Act and such as it shall deem may be necessary to
of a memorial park cemetery, because
necessary and proper to provide for the health and safety, carry into effect and
under Section 13 of said ordinance,
promote the prosperity, improve the morals, peace, good order, discharge the powers
'Violation of the provision thereof is
comfort and convenience of the city and the inhabitants thereof, and duties conferred
punishable with a fine and/or imprisonment
and for the protection of property therein." by this act and such
and that upon conviction thereof the permit
as it shall deem
to operate and maintain a private cemetery
necessary and proper
On the other hand, respondent Himlayang Pilipino, Inc. contends shall be revoked or cancelled.' The
to provide for the
that the taking or confiscation of property is obvious because the confiscatory clause and the penal provision
health and safety,
questioned ordinance permanently restricts the use of the in effect deter one from operating a
promote, the
property such that it cannot be used for any reasonable purpose memorial park cemetery. Neither can the
prosperity, improve
and deprives the owner of all beneficial use of his property. ordinance in question be justified under
the morals, peace,
sub- section "t", Section 12 of Republic Act
good order, comfort
The respondent also stresses that the general welfare clause is 537 which authorizes the City Council to-
and convenience of
not available as a source of power for the taking of the property in the city and the
this case because it refers to "the power of promoting the public 'prohibit the burial of inhabitants thereof,
welfare by restraining and regulating the use of liberty and the dead within the and for the
property." The respondent points out that if an owner is deprived center of population protection of
of his property outright under the State's police power, the of the city and property therein; and
property is generally not taken for public use but is urgently and provide for their enforce obedience
summarily destroyed in order to promote the general welfare. burial in such proper thereto with such
The respondent cites the case of a nuisance per se or the place and in such lawful fines or
destruction of a house to prevent the spread of a conflagration. manner as the council penalties as the City
may determine, Council may prescribe
We find the stand of the private respondent as well as the subject to the under the provisions
decision of the respondent Judge to be well-founded. We quote provisions of the of subsection (jj) of
with approval the lower court's ruling which declared null and general law this section.
void Section 9 of the questioned city ordinance: regulating burial
grounds and
We start the discussion with a restatement
cemeteries and
The issue is: Is Section 9 of the ordinance in of certain basic principles. Occupying the
governing funerals
question a valid exercise of the police forefront in the bill of rights is the provision
and disposal of the
power? which states that 'no person shall be
dead.' (Sub-sec. (t),
deprived of life, liberty or property without
Sec. 12, Rep. Act No.
due process of law' (Art. Ill, Section 1
An examination of the Charter of Quezon 537).
subparagraph 1, Constitution).
City (Rep. Act No. 537), does not reveal any
provision that would justify the ordinance in There is nothing in the above provision
question except the provision granting On the other hand, there are three inherent
which authorizes confiscation or as
police power to the City. Section 9 cannot powers of government by which the state

51
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
interferes with the property rights, namely-.
(1) police power, (2) eminent domain, (3)
taxation. These are said to exist
independently of the Constitution as
necessary attributes of sovereignty.
Police power is defined by Freund as 'the
power of promoting the public welfare by
restraining and regulating the use of liberty
and property' (Quoted in Political Law by
Tanada and Carreon, V-11, p. 50). It is
usually exerted in order to merely regulate
the use and enjoyment of property of the
owner. If he is deprived of his property
outright, it is not taken for public use but
rather to destroy in order to promote the
general welfare. In police power, the owner
does not recover from the government for
injury sustained in consequence thereof (12
C.J. 623). It has been said that police power
is the most essential of government
powers, at times the most insistent, and
always one of the least limitable of the
powers of government (Ruby vs. Provincial
Board, 39 PhiL 660; Ichong vs. Hernandez,
1,7995, May 31, 1957). This power
embraces the whole system of public
regulation (U.S. vs. Linsuya Fan, 10 PhiL
104). The Supreme Court has said that
police power is so far-reaching in scope that
it has almost become impossible to limit its
sweep. As it derives its existence from the
very existence of the state itself, it does not
need to be expressed or defined in its
scope. Being coextensive with self-
preservation and survival itself, it is the
most positive and active of all governmental
processes, the most essential insistent and
illimitable Especially it is so under the
modern democratic framework where the
demands of society and nations have
multiplied to almost unimaginable
proportions. The field and scope of police
power have become almost boundless, just
as the fields of public interest and public
welfare have become almost all embracing
and have transcended human foresight.
Since the Courts cannot foresee the needs
and demands of public interest and welfare,
they cannot delimit beforehand the extent
or scope of the police power by which and
through which the state seeks to attain or
achieve public interest and welfare. (Ichong
vs. Hernandez, L-7995, May 31, 1957).
The police power being the most active
power of the government and the due
process clause being the broadest station
on governmental power, the conflict
between this power of government and the
due process clause of the Constitution is
oftentimes inevitable.
It will be seen from the foregoing
authorities that police power is usually
exercised in the form of mere regulation or
restriction in the use of liberty or property
for the promotion of the general welfare. It
does not involve the taking or confiscation
of property with the exception of a few
cases where there is a necessity to
confiscate private property in order to
destroy it for the purpose of protecting the
peace and order and of promoting the
general welfare as for instance, the
confiscation of an illegally possessed article,
such as opium and firearms.
It seems to the court that Section 9 of
Ordinance No. 6118, Series of 1964 of
Quezon City is not a mere police regulation
but an outright confiscation. It deprives a
person of his private property without due
process of law, nay, even without
compensation.
In sustaining the decision of the respondent court, we are not
unmindful of the heavy burden shouldered by whoever challenges
the validity of duly enacted legislation whether national or local
As early as 1913, this Court ruled in Case v. Board of Health (24
PhiL 250) that the courts resolve every presumption in favor of
validity and, more so, where the ma corporation asserts that the
ordinance was enacted to promote the common good and general
welfare.
In the leading case of Ermita-Malate Hotel and Motel Operators
Association Inc. v. City Mayor of Manila (20 SCRA 849) the Court
speaking through the then Associate Justice and now Chief Justice
Enrique M. Fernando stated
Primarily what calls for a reversal of such a
decision is the a of any evidence to offset
the presumption of validity that attaches to
a statute or ordinance. As was expressed
categorically by Justice Malcolm 'The
presumption is all in favor of validity. ... The
action of the elected representatives of the
TROPANG POTCHI
people cannot be lightly set aside. The
councilors must, in the very nature of
things, be familiar with the necessities of
their particular ... municipality and with all
the facts and lances which surround the
subject and necessitate action. The local
legislative body, by enacting the ordinance,
has in effect given notice that the
regulations are essential to the well-being
of the people. ... The Judiciary should not
lightly set aside legislative action when
there is not a clear invasion of personal or
property rights under the guise of police
regulation. (U.S. v. Salaveria (1918], 39 Phil.
102, at p. 111. There was an affirmation of
the presumption of validity of municipal
ordinance as announced in the leading
Salaveria decision in Ebona v. Daet,
[1950]85 Phil. 369.)
We have likewise considered the principles
earlier stated in Case v. Board of
Health supra :
... Under the provisions of municipal
charters which are known as the general
welfare clauses, a city, by virtue of its police
power, may adopt ordinances to the peace,
safety, health, morals and the best and
highest interests of the municipality. It is a
well-settled principle, growing out of the
nature of well-ordered and society, that
every holder of property, however absolute
and may be his title, holds it under the
implied liability that his use of it shall not be
injurious to the equal enjoyment of others
having an equal right to the enjoyment of
their property, nor injurious to the rights of
the community. An property in the state is
held subject to its general regulations,
which are necessary to the common good
and general welfare. Rights of property, like
all other social and conventional rights, are
subject to such reasonable limitations in
their enjoyment as shall prevent them from
being injurious, and to such reasonable
restraints and regulations, established by
law, as the legislature, under the governing
and controlling power vested in them by
the constitution, may think necessary and
expedient. The state, under the police
power, is possessed with plenary power to
deal with all matters relating to the general
52
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
health, morals, and safety of the people, so
long as it does not contravene any positive
inhibition of the organic law and providing
that such power is not exercised in such a
manner as to justify the interference of the
courts to prevent positive wrong and
oppression.
but find them not applicable to the facts of this case.
There is no reasonable relation between the setting aside of at
least six (6) percent of the total area of an private cemeteries for
charity burial grounds of deceased paupers and the promotion of
health, morals, good order, safety, or the general welfare of the
people. The ordinance is actually a taking without compensation
of a certain area from a private cemetery to benefit paupers who
are charges of the municipal corporation. Instead of building or
maintaining a public cemetery for this purpose, the city passes the
burden to private cemeteries.
The expropriation without compensation of a portion of private
cemeteries is not covered by Section 12(t) of Republic Act 537,
the Revised Charter of Quezon City which empowers the city
council to prohibit the burial of the dead within the center of
population of the city and to provide for their burial in a proper
place subject to the provisions of general law regulating burial
grounds and cemeteries. When the Local Government Code, Batas
Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniang
panlungsod may "provide for the burial of the dead in such place
and in such manner as prescribed by law or ordinance" it simply
authorizes the city to provide its own city owned land or to buy or
expropriate private properties to construct public cemeteries. This
has been the law and practise in the past. It continues to the
present. Expropriation, however, requires payment of just
compensation. The questioned ordinance is different from laws
and regulations requiring owners of subdivisions to set aside
certain areas for streets, parks, playgrounds, and other public
facilities from the land they sell to buyers of subdivision lots. The
necessities of public safety, health, and convenience are very clear
from said requirements which are intended to insure the
development of communities with salubrious and wholesome
environments. The beneficiaries of the regulation, in turn, are
made to pay by the subdivision developer when individual lots are
sold to home-owners.
As a matter of fact, the petitioners rely solely on the general
welfare clause or on implied powers of the municipal corporation,
not on any express provision of law as statutory basis of their
exercise of power. The clause has always received broad and
liberal interpretation but we cannot stretch it to cover this
particular taking. Moreover, the questioned ordinance was passed
after Himlayang Pilipino, Inc. had incorporated. received
necessary licenses and permits and commenced operating. The
sequestration of six percent of the cemetery cannot even be
considered as having been impliedly acknowledged by the private
respondent when it accepted the permits to commence
operations.
WHEREFORE, the petition for review is hereby DISMISSED. The
decision of the respondent court is affirmed.
SO ORDERED.
G.R. No. L-14355             October 31, 1919
THE CITY OF MANILA, plaintiff-appellant,  cemetery purposes; that a great number of Chinese were buried
vs.
CHINESE COMMUNITY OF MANILA, ET AL., defendants-appellees.
City Fiscal Diaz for appellant.  new sites, would involve the destruction of existing monuments
Crossfield and O'Brien, Williams, Ferrier and Sycip, Delgado and
Delgado, Filemon Sotto, and Ramon Salinas for appellees.
 
JOHNSON, J.:
The important question presented by this appeal is: In
expropriation proceedings by the city of Manila, may the courts
inquire into, and hear proof upon, the necessity of the
expropriation?
That question arose in the following manner:
On the 11th day of December, 1916, the city of Manila presented
a petition in the Court of First Instance of said city, praying that
certain lands, therein particularly described, be expropriated for
the purpose of constructing a public improvement. The petitioner,
in the second paragraph of the petition, alleged:
That for the purpose of constructing a public
improvement, namely, the extension of Rizal Avenue,
Manila,it is necessary for the plaintiff to acquire
ownership in fee simple of certain parcels of land
situated in the district of Binondo of said city within
Block 83 of said district, and within the jurisdiction of
this court.
TROPANG POTCHI
The defendant, the Comunidad de Chinos de Manila [Chinese
Community of Manila], answering the petition of the plaintiff,
alleged that it was a corporation organized and existing under and
by virtue of the laws of the Philippine Islands, having for its
purpose the benefit and general welfare of the Chinese
Community of the City of Manila; that it was the owner of parcels
one and two of the land described in paragraph 2 of the
complaint; that itdenied that it was either
necessary or expedient that the said parcels be expropriated for
street purposes; that existing street and roads furnished ample
means of communication for the public in the district covered by
such proposed expropriation; that if the construction of the street
or road should be considered a public necessity, other routes
were available, which would fully satisfy the plaintiff's purposes,
at much less expense and without disturbing the resting places of
the dead; that it had a Torrens title for the lands in question; that
the lands in question had been used by the defendant for
in said cemetery; that if said expropriation be carried into effect, it
would disturb the resting places of the dead, would require the
expenditure of a large sum of money in the transfer or removal of
the bodies to some other place or site and in the purchase of such
and the erection of new monuments in their stead, and would
create irreparable loss and injury to the defendant and to all
those persons owning and interested in the graves and
monuments which would have to be destroyed; that the plaintiff
was without right or authority to expropriate said cemetery or
any part or portion thereof for street purposes; and that the
expropriation, in fact, was not necessary as a public improvement.
The defendant Ildefonso Tambunting, answering the petition,
denied each and every allegation of the complaint, and alleged
that said expropriation was not a public improvement; that it
was not necessary for the plaintiff to acquire the parcels of land in
question; that a portion of the lands in question was used as a
cemetery in which were the graves of his ancestors; that
monuments and tombstones of great value were found thereon;
that the land had become quasi-public property of a benevolent
association, dedicated and used for the burial of the dead and
that many dead were buried there; that if the plaintiff deemed it
necessary to extend Rizal Avenue, he had offered and still offers
to grant a right of way for the said extension over other land,
without cost to the plaintiff, in order that the sepulchers, chapels
and graves of his ancestors may not be disturbed; that the land so
offered,free of charge, would answer every public necessity on the
part of the plaintiff.
The defendant Feliza Concepcion de Delgado, with her husband,
Jose Maria Delgado, and each of the other defendants, answering
separately, presented substantially the same defense as that
presented by theComunidad de Chinos de Manila and Ildefonso
Tambunting above referred to.
53
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
The foregoing parts of the defense presented by the defendants
have been inserted in order to show the general character of the
defenses presented by each of the defendants. The plaintiff
alleged that the expropriation was necessary. The defendants
each alleged (a) that no necessity existed for said expropriation
and (b) that the land in question was a cemetery, which had been
used as such for many years, and was covered with sepulchres
and monuments, and that the same should not be converted into
a street for public purposes.
Upon the issue thus presented by the petition and the various
answers, the Honorable Simplicio del Rosario, judge, in a very
elucidated opinion, with very clear and explicit reasons, supported
by ambulance of authorities, decided that there was no
necessity for the expropriation of the particular strip of land in
question, and absolved each and all of the defendants from all
liability under the complaint, without any finding as to costs.
From that judgment the plaintiff appealed and presented the
above question as its principal ground of appeal.
The theory of the plaintiff is, that once it has established the fact,
under the law, that it has authority to expropriate land, it may
expropriate any land it may desire; that the only function of the
court in such proceedings is to ascertain the value of the land in
question; that neither the court nor the owners of the land can
inquire into the advisible purpose of purpose of the expropriation
or ask any questions concerning the necessities therefor; that
the courts are mere appraisers of the land involved in
expropriation proceedings, and, when the value of the land is
fixed by the method adopted by the law, to render a judgment in
favor of the defendant for its value.
That the city of Manila has authority to expropriate private lands
for public purposes, is not denied. Section 2429 of Act No. 2711
(Charter of the city of Manila) provides that "the city (Manila) . . .
may condemn private property for public use."
The Charter of the city of Manila contains no procedure by which
the said authority may be carried into effect. We are driven,
therefore, to the procedure marked out by Act No. 190 to
ascertain how the said authority may be exercised. From an
examination of Act No. 190, in its section 241, we find how the
right of eminent domain may be exercised. Said section 241
provides that, "The Government of the Philippine Islands, or of
any province or department thereof, or of any municipality, and
any person, or public or private corporation having, by law, the
right to condemn private property for public use, shall exercise
that right in the manner hereinafter prescribed."
Section 242 provides that a complaint in expropriation proceeding
shall be presented; that the complaint shall state with certainty
the right of condemnation, with a description of the property
sought to be condemned together with the interest of each
defendant separately.
Section 243 provides that if the court shall find upon trial that
the right to expropriate the land in question exists, it shall then
appoint commissioners.
Sections 244, 245 and 246 provide the method of procedure and
duty of the commissioners. Section 248 provides for an appeal
from the judgment of the Court of First Instance to the Supreme
Court. Said section 248 gives the Supreme Court authority to
inquire into the right of expropriation on the part of the plaintiff.
If the Supreme Court on appeal shall determine that no right of
expropriation existed, it shall remand the cause to the Court of
First Instance with a mandate that the defendant be replaced in
the possession of the property and that he recover whatever
damages he may have sustained by reason of the possession of
the plaintiff.
It is contended on the part of the plaintiff that the phrase in said
section, "and if the court shall find the right to expropriate
exists," means simply that, if the court finds that there is some
law authorizing the plaintiff to expropriate, then the courts have
no other function than to authorize the expropriation and to
proceed to ascertain the value of the land involved; that the
necessity for the expropriation is a legislative and not a judicial
question.
Upon the question whether expropriation is a legislative function
exclusively, and that the courts cannot intervene except for the
purpose of determining the value of the land in question, there is
much legal legislature. Much has been written upon both sides of
that question. A careful examination of the
discussions pro and con will disclose the fact that the decisions
depend largely upon particular constitutional or statutory
provisions. It cannot be denied, if the legislature under proper
authority should grant the expropriation of a certain or particular
parcel of land for some specified public purpose, that the courts
would be without jurisdiction to inquire into the purpose of that
legislation.
If, upon the other hand, however, the Legislature should
grant general authority to a municipal corporation to
expropriate private land for public purposes, we think the courts
have ample authority in this jurisdiction, under the provisions
above quoted, to make inquiry and to hear proof, upon an issue
properly presented, concerning whether or not the lands
were private and whether the purpose was, in fact, public. In
other words, have no the courts in this jurisdiction the right,
TROPANG POTCHI
inasmuch as the questions relating to expropriation must be
referred to them (sec. 241, Act No. 190) for final decision, to ask
whether or not the law has been complied with? Suppose in a
particular case, it should be denied that the property is
not private property but public, may not the courts hear proof
upon that question? Or, suppose the defense is, that the purpose
of the expropriation is not public butprivate, or that there exists
no public purpose at all, may not the courts make inquiry and
hear proof upon that question?
The city of Manila is given authority to expropriate private lands
for public purposes. Can it be possible that said authority confers
the right to determine for itself that the land is private and that
the purpose is public, and that the people of the city of Manila
who pay the taxes for its support, especially those who are
directly affected, may not question one or the other, or both, of
these questions? Can it be successfully contended that the phrase
used in Act No. 190, "and if the court upon trial shall find that
such right exists," means simply that the court shall examine
the statutes simply for the purpose of ascertaining whether a law
exists authorizing the petitioner to exercise the right of eminent
domain? Or, when the case arrives in the Supreme Court, can it be
possible that the phrase, "if the Supreme Court shall determine
that no right of expropriation exists," that that simply means that
the Supreme Court shall also examine the enactments of the
legislature for the purpose of determining whether or not a law
exists permitting the plaintiff to expropriate?
We are of the opinion that the power of the court is not limited to
that question. The right of expropriation is not an inherent power
in a municipal corporation, and before it can exercise the right
some law must exist conferring the power upon it. When the
courts come to determine the question, they must only find (a)
that a law or authority exists for the exercise of the right of
eminent domain, but (b) also that the right or authority is being
exercised in accordance with the law. In the present case there
are two conditions imposed upon the authority conceded to the
City of Manila: First, the land must be private; and, second, the
purpose must be public. If the court, upon trial, finds that neither
of these conditions exists or that either one of them fails,
certainly it cannot be contended that the right is being exercised
in accordance with law.
Whether the purpose for the exercise of the right of eminent
domain is public, is a question of fact. Whether the land is public,
is a question of fact; and, in our opinion, when the legislature
conferred upon the courts of the Philippine Islands the right to
ascertain upon trial whether the right exists for the exercise of
eminent domain, it intended that the courts should inquire into,
and hear proof upon, those questions. Is it possible that the
owner of valuable land in this jurisdiction is compelled to stand
mute while his land is being expropriated for a use not public,
with the right simply to beg the city of Manila to pay him the
54
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
value of his land? Does the law in this jurisdiction permit
municipalities to expropriate lands, without question, simply for
the purpose of satisfying the aesthetic sense of those who happen
for the time being to be in authority? Expropriation of lands
usually calls for public expense. The taxpayers are called upon to
pay the costs. Cannot the owners of land question the public
use or the public necessity?
As was said above, there is a wide divergence of opinion upon the
authority of the court to question the necessity or advisability of
the exercise of the right of eminent domain. The divergence is
usually found to depend upon particular statutory or
constitutional provisions.
It has been contended — and many cases are cited in support of
that contention, and section 158 of volume 10 of Ruling Case Law
is cited as conclusive — that the necessity for taking property
under the right of eminent domain is not a judicial question. But
those who cited said section evidently overlooked the section
immediately following (sec. 159), which adds: "But it is obvious
that if the property is taken in the ostensible behalf of a public
improvement which it can never by any possibility serve, it is
being taken for a use not public, and the owner's constitutional
rights call for protection by the courts. While many courts have
used sweeping expression in the decisions in which they have
disclaimed the power of supervising the power of supervising
the selection of the sites of public improvements, it may be safely
said that the courts of the various states would feel bound to
interfere to prevent an abuse of the discretion delegated by the
legislature, by an attempted appropriation of land in utter
disregard of the possible necessity of its use, or when the alleged
purpose was a cloak to some sinister scheme." (Norwich City vs.
Johnson, 86 Conn., 151; Bell vs. Mattoon Waterworks, etc. Co.,
245 Ill., 544; Wheeling, etc. R. R. Co. vs. Toledo Ry. etc. Co., 72
Ohio St., 368; State vs. Stewart, 74 Wis., 620.)
Said section 158 (10 R. C. L., 183) which is cited as conclusive
authority in support of the contention of the appellant, says:
The legislature, in providing for the exercise of the
power of eminent domain, may directly determine the
necessity for appropriating private property for a
particular improvement for public use, and it may
select the exact location of the improvement. In such a
case, it is well settled that the utility of the proposed
improvement, the extent of the public necessity for its
construction, the expediency of constructing it, the
suitableness of the location selected and the
consequent necessity of taking the land selected for its
site, are all questions exclusively for the legislature to
determine, and the courts have no power to interfere,
or to substitute their own views for those of the
representatives of the people.
Practically every case cited in support of the above doctrine has
been examined, and we are justified in making the statement that
in each case the legislature directly determined the necessity for
the exercise of the right of eminent domain in the particular case.
It is not denied that if the necessity for the exercise of the right of
eminent domain is presented to the legislative department of the
government and that department decides that there exists a
necessity for the exercise of the right in a particular case, that
then and in that case, the courts will not go behind the action of
the legislature and make inquiry concerning the necessity. But, in
the case of Wheeling, etc. R. R. Co. vs. Toledo, Ry, etc., Co. (72
Ohio St., 368 [106 Am. St. rep., 622, 628]), which was cited in
support of the doctrine laid down in section 158 above quoted,
the court said:
But when the statute does not designate the property
to be taken nor how may be taken, then the necessity
of taking particular property is a question for the
courts. Where the application to condemn or
appropriate is made directly to the court, the question
(of necessity) should be raised and decided in limene.
The legislative department of the government was rarely
undertakes to designate the precise property which should be
taken for public use. It has generally, like in the present case,
merely conferred general authority to take land for public use
when a necessity exists therefor. We believe that it can be
confidently asserted that, under such statute, the allegation of the
necessity for the appropriation is an issuable allegation which it is
competent for the courts to decide. (Lynch vs. Forbes, 161 Mass.,
302 [42 Am. St. Rep., 402, 407].)
There is a wide distinction between a legislative declaration that a
municipality is given authority to exercise the right of eminent
domain, and a decision by the municipality that there exist a
necessity for the exercise of that right in a particular case. The
first is a declaration simply that there exist reasons why the right
should be conferred upon municipal corporation, while the
second is the application of the right to a particular case.
Certainly, the legislative declaration relating to the advisability of
granting the power cannot be converted into a declaration that a
necessity exists for its exercise in a particular case, and especially
so when, perhaps, the land in question was not within the
territorial authority was granted.
Whether it was wise, advisable, or necessary to confer upon a
municipality the power to exercise the right of eminent domain, is
a question with which the courts are not concerned. But when
that right or authority is exercised for the purpose of depriving
TROPANG POTCHI
citizens of their property, the courts are authorized, in this
jurisdiction, to make inquiry and to hear proof upon the necessity
in the particular case, and not the general authority.
Volume 15 of the Cyclopedia of Law and Procedure (Cyc.), page
629, is cited as a further conclusive authority upon the question
that the necessity for the exercise of the right of eminent domain
is a legislative and not a judicial question. Cyclopedia, at the page
stated, says:
In the absence of some constitutional or statutory
provision to the contrary,
the necessity and expediency of exercising the right of
eminent domain are questions essentially political and
not judicial in their character. The determination of
those questions (the necessity and the expediency)
belongs to the sovereign power; the legislative
department is final and conclusive, and the courts have
no power to review it (the necessity and the
expediency) . . . . It (the legislature) may designate the
particular property to be condemned, and its
determination in this respect cannot be reviewed by
the courts.
The volume of Cyclopedia, above referred to, cites many cases in
support of the doctrine quoted. While time has not permitted an
examination of all of said citations, many of them have been
examined, and it can be confidently asserted that said cases which
are cited in support of the assertion that, "the necessity and
expediency of exercising the right of eminent domain are
questions essentially political and not judicial," show clearly and
invariably that in each case the legislature itself usually, by a
special law, designated the particular case in which the right of
eminent domain might be exercised by the particular municipal
corporation or entity within the state. (Eastern R. Co. vs. Boston,
etc., R. Co., 11 Mass., 125 [15 Am. Rep., 13]; Brooklyn Park
Com'rs vs. Armstrong, 45 N.Y., 234 [6 Am. Rep., 70];
Hairston vs. Danville, etc. Ry. Co., 208 U. S. 598;
Cincinnati vs. Louisville, etc. Ry. Co., 223 U. S., 390;
U.S. vs. Chandler-Dunbar Water Power Co., 229 U. S., 53;
U.S. vs. Gettysburg, etc. Co., 160 U. S., 668; Traction Co. vs. Mining
Co., 196 U.S., 239; Sears vs. City of Akron, 246 U.S., 351
[erroneously cited as 242 U.S.].)
In the case of Traction Co. vs. Mining Co. (196 U.S., 239), the
Supreme Court of the United States said: "It is erroneous to
suppose that the legislature is beyond the control of the courts in
exercising the power of eminent domain, either as to the nature
of the use or the necessity to the use of any particular property.
For if the use be not public or no necessity for the taking exists,
the legislature cannot authorize the taking of private property
55
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
against the will of the owner, notwithstanding compensation may
be required."
In the case of School Board of Carolina vs. Saldaña (14 Porto Rico,
339, 356), we find the Supreme Court of Porto Rico, speaking
through Justice MacLeary, quoting approvingly the following,
upon the question which we are discussing: "It is well settled that
although the legislature must necessarily determine in the first
instance whether the use for which they (municipalities, etc.)
attempt to exercise the power is a public one or not, their
(municipalities, etc.) determination is not final, but is subject to
correction by the courts, who may undoubtedly declare the
statute unconstitutional, if it shall clearly appear that the use for
which it is proposed to authorize the taking of private property is
in reality not public but private." Many cases are cited in support
of that doctrine.
Later, in the same decision, we find the Supreme Court of Porto
Rico says: "At any rate, the rule is quite well settled that in the
cases under consideration the determination of the necessity of
taking a particular piece or a certain amount of land rests
ultimately with the courts." (Spring Valley etc. Co. vs. San Mateo,
etc. Co., 64 Cal., 123.) .
In the case of Board of Water Com'rs., etc. vs. Johnson (86 Conn.,
571 [41 L. R. A., N. S., 1024]), the Supreme Court of Connecticut
approvingly quoted the following doctrine from Lewis on Eminent
Domain (3d ed.), section 599: "In all such cases the necessity of
public utility of the proposed work or improvement is a judicial
question. In all such cases, where the authority is to take property
necessary for the purpose, the necessity of taking particular
property for a particular purpose is a judicial one, upon which the
owner is entitled to be heard." (Riley vs.Charleston, etc. Co., 71 S.
C., 457, 489 [110 Am. St. Rep., 579]; Henderson vs. Lexington 132
Ky., 390, 403.)
The taking of private property for any use which is not required by
the necessities or convenience of the inhabitants of the state, is
an unreasonable exercise of the right of eminent domain, and
beyond the power of the legislature to delegate.
(Bennett vs. Marion, 106 Iowa, 628, 633; Wilson vs. Pittsburg, etc.
Co., 222 Pa. St., 541, 545; Greasy, etc. Co. vs. Ely, etc. Co., 132 Ky.,
692, 697.)
In the case of New Central Coal Co. vs. George's etc. Co. (37 Md.,
537, 564), the Supreme Court of the State of Maryland, discussing
the question before us, said: "To justify the exercise of this
extreme power (eminent domain) where the legislature has left it
to depend upon the necessity that may be found to exist, in order
to accomplish the purpose of the incorporation, as in this case,
the party claiming the right to the exercise of the power should be
required to show at least a reasonable degree of necessity for its
exercise. Any rule less strict than this, with the large and almost
indiscriminate delegation of the right to corporations, would likely
lead to oppression and the sacrifice of private right to corporate
power."
In the case of Dewey vs. Chicago, etc. Co. (184 Ill., 426, 433), the
court said: "Its right to condemn property is not a general power
of condemnation, but is limited to cases where a necessity for
resort to private property is shown to exist. Such necessity must
appear upon the face of the petition to condemn. If the necessary
is denied the burden is upon the company (municipality) to
establish it." (Highland, etc. Co. vs. Strickley, 116 Fed., 852, 856;
Kiney vs. Citizens' Water & Light Co., 173 Ind., 252, 257 ;
Bell vs. Mattoon Waterworks, etc. Co., 245 Ill., 544 [137 Am. St.
Rep. 338].)
It is true that naby decisions may be found asserting that what is a
public use is a legislative question, and many other decisions
declaring with equal emphasis that it is a judicial question. But, as
long as there is a constitutional or statutory provision denying the
right to take land for any use other than a public use, it occurs to
us that the question whether any particular use is a public one or
not is ultimately, at least, a judicial question. The legislative may,
it is true, in effect declare certain uses to be public, and, under the
operation of the well-known rule that a statute will not be
declared to be unconstitutional except in a case free, or
comparatively free, from doubt, the courts will certainly sustain
the action of the legislature unless it appears that the particular
use is clearly not of a public nature. The decisions must be
understood with this limitation; for, certainly, no court of last
resort will be willing to declare that any and every purpose which
the legislative might happen to designate as a public use shall be
conclusively held to be so, irrespective of the purpose in question
and of its manifestly private character Blackstone in his
Commentaries on the English Law remarks that, so great is the
regard of the law for private property that it will not authorize the
least violation of it, even for the public good, unless there exists a
very great necessity therefor.
In the case of Wilkinson vs. Leland (2 Pet. [U.S.], 657), the
Supreme Court of the United States said: "That government can
scarcely be deemed free where the rights of property are left
solely defendant on the legislative body, without restraint. The
fundamental maxims of free government seem to require that the
rights of personal liberty and private property should be held
sacred. At least no court of justice in this country would be
warranted in assuming that the power to violate and disregard
them — a power so repugnant to the common principles of
justice and civil liberty — lurked in any general grant of legislature
authority, or ought to be implied from any general expression of
the people. The people ought no to be presumed to part with
rights so vital to their security and well-being without very strong
and direct expression of such intention." (Lewis on Eminent
TROPANG POTCHI
Domain, sec. 603; Lecoul vs. Police Jury 20 La. Ann., 308;
Jefferson vs. Jazem, 7 La. Ann., 182.)
Blackstone, in his Commentaries on the English Law said that the
right to own and possess land — a place to live separate and apart
from others — to retain it as a home for the family in a way not to
be molested by others — is one of the most sacred rights that
men are heirs to. That right has been written into the organic law
of every civilized nation. The Acts of Congress of July 1, 1902, and
of August 29, 1916, which provide that "no law shall be enacted in
the Philippine Islands which shall deprive any person of his
property without due process of law," are but a restatement of
the time-honored protection of the absolute right of the
individual to his property. Neither did said Acts of Congress add
anything to the law already existing in the Philippine Islands. The
Spaniard fully recognized the principle and adequately protected
the inhabitants of the Philippine Islands against the encroachment
upon the private property of the individual. Article 349 of the Civil
Code provides that: "No one may be deprived of his property
unless it be by competent authority, for some purpose
of proven public utility, and after payment of the proper
compensation Unless this requisite (proven public utility and
payment) has been complied with, it shall be the duty of the
courts to protect the owner of such property in its possession or
to restore its possession to him , as the case may be."
The exercise of the right of eminent domain, whether directly by
the State, or by its authorized agents, is necessarily in derogation
of private rights, and the rule in that case is that the authority
must be strictly construed. No species of property is held by
individuals with greater tenacity, and none is guarded by the
constitution and laws more sedulously, than the right to the
freehold of inhabitants. When the legislature interferes with that
right, and, for greater public purposes, appropriates the land of an
individual without his consent, the plain meaning of the law
should not be enlarged by doubtly interpretation.
(Bensely vs. Mountainlake Water Co., 13 Cal., 306 and cases cited
[73 Am. Dec., 576].)
The statutory power of taking property from the owner without
his consent is one of the most delicate exercise of government
authority. It is to be watched with jealous scrutiny. Important as
the power may be to the government, the inviolable sanctity
which all free constitutions attach to the right of property of the
citizens, constrains the strict observance of the substantial
provisions of the law which are prescribed as modes of the
exercise of the power, and to protect it from abuse. Not only must
the authority of municipal corporations to take property be
expressly conferred and the use for which it is taken specified, but
the power, with all constitutional limitation and directions for its
exercise, must be strictly pursued. (Dillon on Municipal
Corporations [5th Ed.], sec. 1040, and cases cited;
Tenorio vs. Manila Railroad Co., 22 Phil., 411.)
56
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
It can scarcely be contended that a municipality would be
permitted to take property for some public use unless some
public necessity existed therefor. The right to take private
property for public use originates in the necessity, and the taking
must be limited by such necessity. The appellant contends that
inasmuch as the legislature has given it general authority to take
private property for public use, that the legislature has, therefore,
settled the question of the necessity in every case and that the
courts are closed to the owners of the property upon that
question. Can it be imagined, when the legislature adopted
section 2429 of Act No. 2711, that it thereby declared that it was
necessary to appropriate the property of Juan de la Cruz, whose
property, perhaps, was not within the city limits at the time the
law was adopted? The legislature, then, not having declared the
necessity, can it be contemplated that it intended that a
municipality should be the sole judge of the necessity in every
case, and that the courts, in the face of the provision that "if upon
trial they shall find that a right exists," cannot in that trial inquire
into and hear proof upon the necessity for the appropriation in a
particular case?
The Charter of the city of Manila authorizes the taking
of private property for public use. Suppose the owner of the
property denies and successfully proves that the taking of his
property serves no public use: Would the courts not be justified in
inquiring into that question and in finally denying the petition if
no public purpose was proved? Can it be denied that the courts
have a right to inquire into that question? If the courts can ask
questions and decide, upon an issue properly presented, whether
the use is public or not, is not that tantamount to permitting the
courts to inquire into the necessity of the appropriation? If there
is no public use, then there is no necessity, and if there is no
necessity, it is difficult to understand how a public use can
necessarily exist. If the courts can inquire into the question
whether a public use exists or not, then it seems that it must
follow that they can examine into the question of the necessity.
The very foundation of the right to exercise eminent domain is a
genuine necessity, and that necessity must be of a public
character. The ascertainment of the necessity must precede or
accompany, and not follow, the taking of the
land. (Morrison vs. Indianapolis, etc. Ry. Co., 166 Ind., 511;
Stearns vs. Barre, 73 Vt., 281; Wheeling, etc. R. R. Co. vs. Toledo,
Ry. etc. Co., 72 Ohio St., 368.)
The general power to exercise the right of eminent domain must
not be confused with the right to exercise it in aparticular case.
The power of the legislature to confer, upon municipal
corporations and other entities within the State, general authority
to exercise the right of eminent domain cannot be questioned by
the courts, but that general authority of municipalities or entities
must not be confused with the right to exercise it in particular
instances. The moment the municipal corporation or entity
attempts to exercise the authority conferred, it must comply with
the conditions accompanying the authority. The
necessity for conferring the authority upon a municipal
corporation to exercise the right of eminent domain is admittedly
within the power of the legislature. But whether or not the
municipal corporation or entity is exercising the right in a
particular case under the conditions imposed by the general
authority, is a question which the courts have the right to inquire
into.
The conflict in the authorities upon the question whether
the necessity for the exercise of the right of eminent domain is
purely legislative and not judicial, arises generally in the wisdom
and propriety of the legislature in authorizing the exercise of the
right of eminent domain instead of in the question of the right to
exercise it in a particular case. (Creston Waterworks
Co. vs. McGrath, 89 Iowa, 502.)
By the weight of authorities, the courts have the power of
restricting the exercise of eminent domain to the actual
reasonable necessities of the case and for the purposes
designated by the law. (Fairchild vs. City of St. Paul. 48 Minn.,
540.)
And, moreover, the record does not show conclusively that the
plaintiff has definitely decided that their exists a necessity for the
appropriation of the particular land described in the complaint.
Exhibits 4, 5, 7, and E clearly indicate that the municipal board
believed at one time that other land might be used for the
proposed improvement, thereby avoiding the necessity of
distributing the quiet resting place of the dead.
Aside from insisting that there exists no necessity for the alleged
improvements, the defendants further contend that the street in
question should not be opened through the cemetery. One of the
defendants alleges that said cemetery is public property. If that
allegations is true, then, of course, the city of Manila cannot
appropriate it for public use. The city of Manila can only
expropriate private property.
It is a well known fact that cemeteries may be public or private.
The former is a cemetery used by the general community, or
neighborhood, or church, while the latter is used only by a family,
or a small portion of the community or neighborhood. (11 C. J.,
50.)
Where a cemetery is open to public, it is a public use and no part
of the ground can be taken for other public uses under a general
authority. And this immunity extends to the unimproved and
unoccupied parts which are held in good faith for future use.
(Lewis on Eminent Domain, sec. 434, and cases cited.)
TROPANG POTCHI
The cemetery in question seems to have been established under
governmental authority. The Spanish Governor-General, in an
order creating the same, used the following language:
The cemetery and general hospital for indigent Chinese
having been founded and maintained by the
spontaneous and fraternal contribution of their
protector, merchants and industrials, benefactors of
mankind, in consideration of their services to the
Government of the Islands its internal administration,
government and regime must necessarily be adjusted
to the taste and traditional practices of those born and
educated in China in order that the sentiments which
animated the founders may be perpetually
effectuated.
It is alleged, and not denied, that the cemetery in question may
be used by the general community of Chinese, which fact, in the
general acceptation of the definition of a public cemetery, would
make the cemetery in question public property. If that is true,
then, of course, the petition of the plaintiff must be denied, for
the reason that the city of Manila has no authority or right under
the law to expropriate public property.
But, whether or not the cemetery is public or private property, its
appropriation for the uses of a public street, especially during the
lifetime of those specially interested in its maintenance as a
cemetery, should be a question of great concern, and its
appropriation should not be made for such purposes until it is
fully established that the greatest necessity exists therefor.
While we do not contend that the dead must not give place to the
living, and while it is a matter of public knowledge that in the
process of time sepulchres may become the seat of cities and
cemeteries traversed by streets and daily trod by the feet of
millions of men, yet, nevertheless such sacrifices and such uses of
the places of the dead should not be made unless and until it is
fully established that there exists an eminent necessity therefor.
While cemeteries and sepulchres and the places of the burial of
the dead are still within 
the memory and command of the active care of the living; while
they are still devoted to pious uses and sacred regard, it is difficult
to believe that even the legislature would adopt a law expressly
providing that such places, under such circumstances, should be
violated.
In such an appropriation, what, we may ask, would be the
measure of damages at law, for the wounded sensibilities of the
living, in having the graves of kindred and loved ones blotted out
and desecrated by a common highway or street for public travel?
The impossibility of measuring the damage and inadequacy of a
remedy at law is too apparent to admit of argument. To disturb
57
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
the mortal remains of those endeared to us in life sometimes
becomes the sad duty of the living; but, except in cases
of necessity, or for laudable purposes, the sanctity of the grave,
the last resting place of our friends, should be maintained, and
the preventative aid of the courts should be invoked for that
object. (Railroad Company vs. Cemetery Co., 116 Tenn., 400;
Evergreen Cemetery Associationvs. The City of New Haven, 43
Conn., 234; Anderson vs. Acheson, 132 Iowa, 744; Beatty vs. Kurtz,
2 Peters, 566.)
In the present case, even granting that a necessity exists for the
opening of the street in question, the record contains no proof of
the necessity of opening the same through the cemetery. The
record shows that adjoining and adjacent lands have been offered
to the city free of charge, which will answer every purpose of the
plaintiff.
For all of the foregoing, we are fully persuaded that the judgment
of the lower court should be and is hereby affirmed, with costs
against the appellant. So ordered.
G.R. No. L-18841             January 27, 1969
REPUBLIC OF THE PHILIPPINES, plaintiff-appellant, 
vs.
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, defendant-
appellant.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor
General Antonio A. Torres and Solicitor Camilo D. Quiason for
plaintiff-appellant.
Ponce Enrile, Siguion Reyna, Montecillo and Belo for defendant-
appellant.
REYES, J.B.L., J.:
  Direct appeals, upon a joint record on appeal, by both the
plaintiff and the defendant from the dismissal, after hearing, by
the Court of First Instance of Manila, in its Civil Case No. 35805, of
their respective complaint and counterclaims, but making
permanent a preliminary mandatory injunction theretofore issued
against the defendant on the interconnection of telephone
facilities owned and operated by said parties.
  The plaintiff, Republic of the Philippines, is a political entity
exercising governmental powers through its branches and
instrumentalities, one of which is the Bureau of
Telecommunications. That office was created on 1 July 1947,
under Executive Order No. 94, with the following powers and
duties, in addition to certain powers and duties formerly vested in
the Director of Posts: 1awphil.ñêt
  SEC. 79. The Bureau of Telecommunications shall exercise the
following powers and duties:
(a) To operate and maintain existing wire-telegraph
and radio-telegraph offices, stations, and facilities, and
those to be established to restore the pre-war
telecommunication service under the Bureau of Posts,
as well as such additional offices or stations as may
hereafter be established to provide telecommunication
service in places requiring such service;
(b) To investigate, consolidate, negotiate for, operate
and maintain wire-telephone or radio telephone
communication service throughout the Philippines by
utilizing such existing facilities in cities, towns, and
provinces as may be found feasible and under such
terms and conditions or arrangements with the
present owners or operators thereof as may be agreed
upon to the satisfaction of all concerned;
(c) To prescribe, subject to approval by the
Department Head, equitable rates of charges for
messages handled by the system and/or for time calls
and other services that may be rendered by said
system;
(d) To establish and maintain coastal stations to serve
ships at sea or aircrafts and, when public interest so
requires, to engage in the international
telecommunication service in agreement with other
countries desiring to establish such service with the
Republic of the Philippines; and
(e) To abide by all existing rules and regulations
prescribed by the International Telecommunication
Convention relative to the accounting, disposition and
exchange of messages handled in the international
service, and those that may hereafter be promulgated
by said convention and adhered to by the Government
of the Republic of the Philippines. 1
  The defendant, Philippine Long Distance Telephone Company
(PLDT for short), is a public service corporation holding a
legislative franchise, Act 3426, as amended by Commonwealth Act
407, to install, operate and maintain a telephone system
throughout the Philippines and to carry on the business of
electrical transmission of messages within the Philippines and
TROPANG POTCHI
between the Philippines and the telephone systems of other
countries. 2 The RCA Communications, Inc., (which is not a party to
the present case but has contractual relations with the parties) is
an American corporation authorized to transact business in the
Philippines and is the grantee, by assignment, of a legislative
franchise to operate a domestic station for the reception and
transmission of long distance wireless messages (Act 2178) and to
operate broadcasting and radio-telephone and radio-telegraphic
communications services (Act 3180). 3
  Sometime in 1933, the defendant, PLDT, and the RCA
Communications, Inc., entered into an agreement whereby
telephone messages, coming from the United States and received
by RCA's domestic station, could automatically be transferred to
the lines of PLDT; and vice-versa, for calls collected by the PLDT
for transmission from the Philippines to the United States. The
contracting parties agreed to divide the tolls, as follows: 25% to
PLDT and 75% to RCA. The sharing was amended in 1941 to 30%
for PLDT and 70% for RCA, and again amended in 1947 to a 50-50
basis. The arrangement was later extended to radio-telephone
messages to and from European and Asiatic countries. Their
contract contained a stipulation that either party could terminate
it on a 24-month notice to the other. 4 On 2 February 1956, PLDT
gave notice to RCA to terminate their contract on 2 February
1958. 5
  Soon after its creation in 1947, the Bureau of
Telecommunications set up its own Government Telephone
System by utilizing its own appropriation and equipment and by
renting trunk lines of the PLDT to enable government offices to
call private parties. 6 Its application for the use of these trunk lines
was in the usual form of applications for telephone service,
containing a statement, above the signature of the applicant, that
the latter will abide by the rules and regulations of the PLDT which
are on file with the Public Service Commission. 7 One of the many
rules prohibits the public use of the service furnished the
telephone subscriber for his private use. 8 The Bureau has
extended its services to the general public since 1948, 9 using the
same trunk lines owned by, and rented from, the PLDT, and
prescribing its (the Bureau's) own schedule of rates. 10 Through
these trunk lines, a Government Telephone System (GTS)
subscriber could make a call to a PLDT subscriber in the same way
that the latter could make a call to the former.
  On 5 March 1958, the plaintiff, through the Director of
Telecommunications, entered into an agreement with RCA
Communications, Inc., for a joint overseas telephone service
whereby the Bureau would convey radio-telephone overseas calls
received by RCA's station to and from local residents. 11 Actually,
they inaugurated this joint operation on 2 February 1958, under a
"provisional" agreement. 12
58
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
  On 7 April 1958, the defendant Philippine Long Distance
Telephone Company, complained to the Bureau of
Telecommunications that said bureau was violating the conditions
under which their Private Branch Exchange (PBX) is inter-
connected with the PLDT's facilities, referring to the rented trunk
lines, for the Bureau had used the trunk lines not only for the use
of government offices but even to serve private persons or the
general public, in competition with the business of the PLDT; and
gave notice that if said violations were not stopped by midnight of
12 April 1958, the PLDT would sever the telephone
connections. 13 When the PLDT received no reply, it disconnected
the trunk lines being rented by the Bureau at midnight on 12 April
1958. 14 The result was the isolation of the Philippines, on
telephone services, from the rest of the world, except the United
States. 15
  At that time, the Bureau was maintaining 5,000 telephones and
had 5,000 pending applications for telephone connection. 16 The
PLDT was also maintaining 60,000 telephones and had also 20,000
pending applications. 17Through the years, neither of them has
been able to fill up the demand for telephone service.
  The Bureau of Telecommunications had proposed to the PLDT on
8 January 1958 that both enter into an interconnecting
agreement, with the government paying (on a call basis) for all
calls passing through the interconnecting facilities from the
Government Telephone System to the PLDT. 18 The PLDT replied
that it was willing to enter into an agreement on overseas
telephone service to Europe and Asian countries provided that
the Bureau would submit to the jurisdiction and regulations of the
Public Service Commission and in consideration of 37 1/2% of the
gross revenues. 19 In its memorandum in lieu of oral argument in
this Court dated 9 February 1964, on page 8, the defendant
reduced its offer to 33 1/3 % (1/3) as its share in the overseas
telephone service. The proposals were not accepted by either
party.
  On 12 April 1958, plaintiff Republic commenced suit against the
defendant, Philippine Long Distance Telephone Company, in the
Court of First Instance of Manila (Civil Case No. 35805), praying in
its complaint for judgment commanding the PLDT to execute a
contract with plaintiff, through the Bureau, for the use of the
facilities of defendant's telephone system throughout the
Philippines under such terms and conditions as the court might
consider reasonable, and for a writ of preliminary injunction
against the defendant company to restrain the severance of the
existing telephone connections and/or restore those severed.
  Acting on the application of the plaintiff, and on the ground that
the severance of telephone connections by the defendant
company would isolate the Philippines from other countries, the
court a quo, on 14 April 1958, issued an order for the defendant:
(1) to forthwith reconnect and restore the seventy-
eight (78) trunk lines that it has disconnected between
the facilities of the Government Telephone System,
including its overseas telephone services, and the
facilities of defendant; (2) to refrain from carrying into
effect its threat to sever the existing telephone
communication between the Bureau of
Telecommunications and defendant, and not to make
connection over its telephone system of telephone
calls coming to the Philippines from foreign countries
through the said Bureau's telephone facilities and the
radio facilities of RCA Communications, Inc.; and (3) to
accept and connect through its telephone system all
such telephone calls coming to the Philippines from
foreign countries — until further order of this Court.
  On 28 April 1958, the defendant company filed its answer, with
counterclaims.
  It denied any obligation on its part to execute a contrary of
services with the Bureau of Telecommunications; contested the
jurisdiction of the Court of First Instance to compel it to enter into
interconnecting agreements, and averred that it was justified to
disconnect the trunk lines heretofore leased to the Bureau of
Telecommunications under the existing agreement because its
facilities were being used in fraud of its rights. PLDT further
claimed that the Bureau was engaging in commercial telephone
operations in excess of authority, in competition with, and to the
prejudice of, the PLDT, using defendants own telephone poles,
without proper accounting of revenues.
  After trial, the lower court rendered judgment that it could not
compel the PLDT to enter into an agreement with the Bureau
because the parties were not in agreement; that under Executive
Order 94, establishing the Bureau of Telecommunications, said
Bureau was not limited to servicing government offices alone, nor
was there any in the contract of lease of the trunk lines, since the
PLDT knew, or ought to have known, at the time that their use by
the Bureau was to be public throughout the Islands, hence the
Bureau was neither guilty of fraud, abuse, or misuse of the poles
of the PLDT; and, in view of serious public prejudice that would
result from the disconnection of the trunk lines, declared the
preliminary injunction permanent, although it dismissed both the
complaint and the counterclaims.
  Both parties appealed.
  Taking up first the appeal of the Republic, the latter complains of
the action of the trial court in dismissing the part of its complaint
seeking to compel the defendant to enter into an interconnecting
contract with it, because the parties could not agree on the terms
TROPANG POTCHI
and conditions of the interconnection, and of its refusal to fix the
terms and conditions therefor.
  We agree with the court below that parties can not be coerced
to enter into a contract where no agreement is had between
them as to the principal terms and conditions of the contract.
Freedom to stipulate such terms and conditions is of the essence
of our contractual system, and by express provision of the statute,
a contract may be annulled if tainted by violence, intimidation, or
undue influence (Articles 1306, 1336, 1337, Civil Code of the
Philippines). But the court a quo has apparently overlooked that
while the Republic may not compel the PLDT to celebrate a
contract with it, the Republic may, in the exercise of the sovereign
power of eminent domain, require the telephone company to
permit interconnection of the government telephone system and
that of the PLDT, as the needs of the government service may
require, subject to the payment of just compensation to be
determined by the court. Nominally, of course, the power of
eminent domain results in the taking or appropriation of title to,
and possession of, the expropriated property; but no cogent
reason appears why the said power may not be availed of to
impose only a burden upon the owner of condemned property,
without loss of title and possession. It is unquestionable that real
property may, through expropriation, be subjected to an
easement of right of way. The use of the PLDT's lines and services
to allow inter-service connection between both telephone
systems is not much different. In either case private property is
subjected to a burden for public use and benefit. If, under section
6, Article XIII, of the Constitution, the State may, in the interest of
national welfare, transfer utilities to public ownership upon
payment of just compensation, there is no reason why the State
may not require a public utility to render services in the general
interest, provided just compensation is paid therefor. Ultimately,
the beneficiary of the interconnecting service would be the users
of both telephone systems, so that the condemnation would be
for public use.
  The Bureau of Telecommunications, under section 78 (b) of
Executive Order No. 94, may operate and maintain wire
telephone or radio telephone communications throughout the
Philippines by utilizing existing facilities in cities, towns, and
provinces under such terms and conditions or arrangement with
present owners or operators as may be agreed upon to the
satisfaction of all concerned; but there is nothing in this section
that would exclude resort to condemnation proceedings where
unreasonable or unjust terms and conditions are exacted, to the
extent of crippling or seriously hampering the operations of said
Bureau.
  A perusal of the complaint shows that the Republic's cause of
action is predicated upon the radio telephonic isolation of the
Bureau's facilities from the outside world if the severance of
interconnection were to be carried out by the PLDT, thereby
59
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
preventing the Bureau of Telecommunications from properly
discharging its functions, to the prejudice of the general public.
Save for the prayer to compel the PLDT to enter into a contract
(and the prayer is no essential part of the pleading), the
averments make out a case for compulsory rendering of inter-
connecting services by the telephone company upon such terms
and conditions as the court may determine to be just. And since
the lower court found that both parties "are practically at one
that defendant (PLDT) is entitled to reasonable compensation
from plaintiff for the reasonable use of the former's telephone
facilities" (Decision, Record on Appeal, page 224), the lower court
should have proceeded to treat the case as one of condemnation
of such services independently of contract and proceeded to
determine the just and reasonable compensation for the same,
instead of dismissing the petition.
  This view we have taken of the true nature of the Republic's
petition necessarily results in overruling the plea of defendant-
appellant PLDT that the court of first instance had no jurisdiction
to entertain the petition and that the proper forum for the action
was the Public Service Commission. That body, under the law, has
no authority to pass upon actions for the taking of private
property under the sovereign right of eminent domain.
Furthermore, while the defendant telephone company is a public
utility corporation whose franchise, equipment and other
properties are under the jurisdiction, supervision and control of
the Public Service Commission (Sec. 13, Public Service Act), yet
the plaintiff's telecommunications network is a public service
owned by the Republic and operated by an instrumentality of the
National Government, hence exempt, under Section 14 of the
Public Service Act, from such jurisdiction, supervision and control.
The Bureau of Telecommunications was created in pursuance of a
state policy reorganizing the government offices —
  to meet the exigencies attendant upon the
establishment of the free and independent
Government of the Republic of the Philippines, and for
the purpose of promoting simplicity, economy and
efficiency in its operation (Section 1, Republic Act No.
51) —
  and the determination of state policy is not vested in the
Commission (Utilities Com. vs. Bartonville Bus Line, 290 Ill. 574;
124 N.E. 373).
  Defendant PLDT, as appellant, contends that the court below
was in error in not holding that the Bureau of
Telecommunications was not empowered to engage in
commercial telephone business, and in ruling that said defendant
was not justified in disconnecting the telephone trunk lines it had
previously leased to the Bureau. We find that the court a quo
ruled correctly in rejecting both assertions.
  Executive Order No. 94, Series of 1947, reorganizing the Bureau
of Telecommunications, expressly empowered the latter in its
Section 79, subsection (b), to "negotiate for, operate and maintain
wire telephone or radio telephone communication service
throughout the Philippines", and, in subsection (c), "to prescribe,
subject to approval by the Department Head, equitable rates of
charges for messages handled by the system and/or for time calls
and other services that may be rendered by the system". Nothing
in these provisions limits the Bureau to non-commercial activities
or prevents it from serving the general public. It may be that in its
original prospectuses the Bureau officials had stated that the
service would be limited to government offices: but such
limitations could not block future expansion of the system, as
authorized by the terms of the Executive Order, nor could the
officials of the Bureau bind the Government not to engage in
services that are authorized by law. It is a well-known rule that
erroneous application and enforcement of the law by public
officers do not block subsequent correct application of the statute
(PLDT vs. Collector of Internal Revenue, 90 Phil. 676), and that the
Government is never estopped by mistake or error on the part of
its agents (Pineda vs. Court of First Instance of Tayabas, 52 Phil.
803, 807; Benguet Consolidated Mining Co. vs. Pineda, 98 Phil.
711, 724).
  The theses that the Bureau's commercial services constituted
unfair competition, and that the Bureau was guilty of fraud and
abuse under its contract, are, likewise, untenable.
  First, the competition is merely hypothetical, the demand for
telephone service being very much more than the supposed
competitors can supply. As previously noted, the PLDT had 20,000
pending applications at the time, and the Bureau had another
5,000. The telephone company's inability to meet the demands
for service are notorious even now. Second, the charter of the
defendant expressly provides:
  SEC. 14. The rights herein granted shall not be
exclusive, and the rights and power to grant to any
corporation, association or person other than the
grantee franchise for the telephone or electrical
transmission of message or signals shall not be
impaired or affected by the granting of this franchise:
— (Act 3436)
  And third, as the trial court correctly stated, "when the Bureau of
Telecommunications subscribed to the trunk lines, defendant
knew or should have known that their use by the subscriber was
more or less public and all embracing in nature, that is,
throughout the Philippines, if not abroad" (Decision, Record on
Appeal, page 216).
TROPANG POTCHI
  The acceptance by the defendant of the payment of rentals,
despite its knowledge that the plaintiff had extended the use of
the trunk lines to commercial purposes, continuously since 1948,
implies assent by the defendant to such extended use. Since this
relationship has been maintained for a long time and the public
has patronized both telephone systems, and their interconnection
is to the public convenience, it is too late for the defendant to
claim misuse of its facilities, and it is not now at liberty to
unilaterally sever the physical connection of the trunk lines.
  ..., but there is high authority for the position that,
when such physical connection has been voluntarily
made, under a fair and workable arrangement and
guaranteed by contract and the continuous line has
come to be patronized and established as a great
public convenience, such connection shall not in
breach of the agreement be severed by one of the
parties. In that case, the public is held to have such an
interest in the arrangement that its rights must receive
due consideration. This position finds approval in State
ex rel. vs. Cadwaller, 172 Ind. 619, 636, 87 N.E. 650,
and is stated in the elaborate and learned opinion of
Chief Justice Myers as follows: "Such physical
connection cannot be required as of right, but if such
connection is voluntarily made by contract, as is here
alleged to be the case, so that the public acquires an
interest in its continuance, the act of the parties in
making such connection is equivalent to a declaration
of a purpose to waive the primary right of
independence, and it imposes upon the property such
a public status that it may not be disregarded" — citing
Mahan v. Mich. Tel. Co., 132 Mich. 242, 93 N.W. 629,
and the reasons upon which it is in part made to rest
are referred to in the same opinion, as follows: "Where
private property is by the consent of the owner
invested with a public interest or privilege for the
benefit of the public, the owner can no longer deal
with it as private property only, but must hold it
subject to the right of the public in the exercise of that
public interest or privilege conferred for their benefit."
Allnut v. Inglis (1810) 12 East, 527. The doctrine of this
early case is the acknowledged law. (Clinton-Dunn Tel.
Co. v. Carolina Tel. & Tel. Co., 74 S.E. 636, 638).
  It is clear that the main reason for the objection of the PLDT lies
in the fact that said appellant did not expect that the Bureau's
telephone system would expand with such rapidity as it has done;
but this expansion is no ground for the discontinuance of the
service agreed upon.
  The last issue urged by the PLDT as appellant is its right to
compensation for the use of its poles for bearing telephone wires
60
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
of the Bureau of Telecommunications. Admitting that section 19
of the PLDT charter reserves to the Government —
  the privilege without compensation of using the poles
of the grantee to attach one ten-pin cross-arm, and to
install, maintain and operate wires of its telegraph
system thereon; Provided, however, That the Bureau of
Posts shall have the right to place additional cross-
arms and wires on the poles of the grantee by paying a
compensation, the rate of which is to be agreed upon
by the Director of Posts and the grantee; —
  the defendant counterclaimed for P8,772.00 for the use of its
poles by the plaintiff, contending that what was allowed free use,
under the aforequoted provision, was one ten-pin cross-arm
attachment and only for plaintiff's telegraph system, not for its
telephone system; that said section could not refer to the
plaintiff's telephone system, because it did not have such
telephone system when defendant acquired its franchise. The
implication of the argument is that plaintiff has to pay for the use
of defendant's poles if such use is for plaintiff's telephone system
and has to pay also if it attaches more than one (1) ten-pin cross-
arm for telegraphic purposes.
  As there is no proof that the telephone wires strain the poles of
the PLDT more than the telegraph wires, nor that they cause more
damage than the wires of the telegraph system, or that the
Government has attached to the poles more than one ten-pin
cross-arm as permitted by the PLDT charter, we see no point in
this assignment of error. So long as the burden to be borne by the
PLDT poles is not increased, we see no reason why the reservation
in favor of the telegraph wires of the government should not be
extended to its telephone lines, any time that the government
decided to engage also in this kind of communication.
  In the ultimate analysis, the true objection of the PLDT to
continue the link between its network and that of the
Government is that the latter competes "parasitically" (sic) with
its own telephone services. Considering, however, that the PLDT
franchise is non-exclusive; that it is well-known that defendant
PLDT is unable to adequately cope with the current demands for
telephone service, as shown by the number of pending
applications therefor; and that the PLDT's right to just
compensation for the services rendered to the Government
telephone system and its users is herein recognized and
preserved, the objections of defendant-appellant are without
merit. To uphold the PLDT's contention is to subordinate the
needs of the general public to the right of the PLDT to derive
profit from the future expansion of its services under its non-
exclusive franchise.
  WHEREFORE, the decision of the Court of First Instance, now
under appeal, is affirmed, except in so far as it dismisses the
petition of the Republic of the Philippines to compel the
Philippine Long Distance Telephone Company to continue
servicing the Government telephone system upon such terms,
and for a compensation, that the trial court may determine to be
just, including the period elapsed from the filing of the original
complaint or petition. And for this purpose, the records are
ordered returned to the court of origin for further hearings and
other proceedings not inconsistent with this opinion. No costs.
G.R. No. L-12172             August 29, 1958
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  among others that the proposed building would destroy the view
vs.
JUAN F. FAJARDO, ET AL., defendants-appellants.
Assistant Solicitor General Esmeraldo Umali and Higinio V.
Catalan for appellee.
Prila, Pardalis and Pejo for appellants.
REYES, J. B. L., J.:
Appeal from the decision of the Court of First Instance of
Camarines Sur convicting defendants-appellants Juan F. Fajardo
and Pedro Babilonia of a violation of Ordinance No. 7, Series of
1950, of the Municipality of Baao, Camarines Sur, for having
constructed without a permit from the municipal mayor a building
that destroys the view of the public plaza.
It appears that on August 15, 1950, during the incumbency of
defendant-appellant Juan F. Fajardo as mayor of the municipality
of Baao, Camarines Sur, the municipal council passed the
ordinance in question providing as follows:
SECTION 1. Any person or persons who will construct
or repair a building should, before constructing or
repairing, obtain a written permit from the Municipal
Mayor.
SEC. 2. A fee of not less than P2.00 should be charged
for each building permit and P1.00 for each repair
permit issued.
SEC. 3. PENALTY — Any violation of the provisions of
the above, this ordinance, shall make the violation
liable to pay a fine of not less than P25 nor more than
P50 or imprisonment of not less than 12 days nor more
than 24 days or both, at the discretion of the court. If
said building destroys the view of the Public Plaza or
TROPANG POTCHI
occupies any public property, it shall be removed at
the expense of the owner of the building or house.
SEC. 4. EFFECTIVITY — This ordinance shall take effect
on its approval. (Orig. Recs., P. 3)
Four years later, after the term of appellant Fajardo as mayor had
expired, he and his son in-law, appellant Babilonia, filed a written
request with the incumbent municipal mayor for a permit to
construct a building adjacent to their gasoline station on a parcel
of land registered in Fajardo's name, located along the national
highway and separated from the public plaza by a creek (Exh. D).
On January 16, 1954, the request was denied, for the reason
or beauty of the public plaza (Exh. E). On January 18, 1954,
defendants reiterated their request for a building permit (Exh. 3),
but again the request was turned down by the mayor.
Whereupon, appellants proceeded with the construction of the
building without a permit, because they needed a place of
residence very badly, their former house having been destroyed
by a typhoon and hitherto they had been living on leased
property.
On February 26, 1954, appellants were charged before and
convicted by the justice of the peace court of Baao, Camarines
Sur, for violation of the ordinance in question. Defendants
appealed to the Court of First Instance, which affirmed the
conviction, and sentenced appellants to pay a fine of P35 each
and the costs, as well as to demolish the building in question
because it destroys the view of the public plaza of Baao, in that "it
hinders the view of travelers from the National Highway to the
said public plaza." From this decision, the accused appealed to the
Court of Appeals, but the latter forwarded the records to us
because the appeal attacks the constitutionality of the ordinance
in question.
We find that the appealed conviction can not stand.
A first objection to the validity of the ordinance in question is that
under it the mayor has absolute discretion to issue or deny a
permit. The ordinance fails to state any policy, or to set up any
standard to guide or limit the mayor's action. No purpose to be
attained by requiring the permit is expressed; no conditions for its
grant or refusal are enumerated. It is not merely a case of
deficient standards; standards are entirely lacking. The ordinance
thus confers upon the mayor arbitrary and unrestricted power to
grant or deny the issuance of building permits, and it is a settled
rule that such an undefined and unlimited delegation of power to
allow or prevent an activity, per se lawful, is invalid (People vs.
Vera, 65 Phil., 56; Primicias vs. Fugoso, 80 Phil., 71; Schloss Poster
Adv. Co. vs. Rock Hill, 2 SE (2d) 392)
61
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
The ordinance in question in no way controls or guides
the discretion vested thereby in the respondents. It
prescribes no uniform rule upon which the special
permission of the city is to be granted. Thus the city is
clothed with the uncontrolled power to capriciously
grant the privilege to some and deny it others; to
refuse the application of one landowner or lessee and
to grant that of another, when for all material
purposes, the two applying for precisely the same
privileges under the same circumstances. The danger
of such an ordinance is that it makes possible arbitrary
discriminations and abuses in its execution, depending
upon no conditions or qualifications whatever, other
than the unregulated arbitrary will of the city
authorities as the touchstone by which its validity is to
be tested. Fundamental rights under our government
do not depend for their existence upon such a slender
and uncertain thread. Ordinances which thus invest a
city council with a discretion which is purely arbitrary,
and which may be exercised in the interest of a
favored few, are unreasonable and invalid. The
ordinance should have established a rule by which its
impartial enforcement could be secured. All of the
authorities cited above sustain this conclusion.
As was said in City of Richmond vs. Dudley, 129 Ind.
112,28 N. E. 312, 314 13 L. R. A. 587, 28 Am. St. Rep.
180: "It seems from the foregoing authorities to be
well established that municipal ordinances placing
restrictions upon lawful conduct or the lawful use of
property must, in order to be valid, specify the rules
and conditions to be observed in such conduct or
business; and must admit of the exercise of the
privilege of all citizens alike who will comply with such
rules and conditions; and must not admit of the
exercise, or of an opportunity for the exercise, of any
arbitrary discrimination by the municipal authorities
between citizens who will so comply. (Schloss Poster
Adv. Co., Inc. vs. City of Rock Hill, et al., 2 SE (2d), pp.
394-395).
It is contended, on the other hand, that the mayor can refuse a
permit solely in case that the proposed building "destroys the
view of the public plaza or occupies any public property" (as
stated in its section 3); and in fact, the refusal of the Mayor of
Baao to issue a building permit to the appellant was predicated on
the ground that the proposed building would "destroy the view of
the public plaza" by preventing its being seen from the public
highway. Even thus interpreted, the ordinance is unreasonable
and oppressive, in that it operates to permanently deprive
appellants of the right to use their own property; hence, it
oversteps the bounds of police power, and amounts to a taking of
appellants property without just compensation. We do not
overlook that the modern tendency is to regard the beautification
of neighborhoods as conducive to the comfort and happiness of
residents. But while property may be regulated in the interest of
the general welfare, and in its pursuit, the State may prohibit
structures offensive to the sight (Churchill and Tait vs. Rafferty, 32
Phil. 580), the State may not, under the guise of police power,
permanently divest owners of the beneficial use of their property
and practically confiscate them solely to preserve or assure the
aesthetic appearance of the community. As the case now stands,
every structure that may be erected on appellants' land,
regardless of its own beauty, stands condemned under the
ordinance in question, because it would interfere with the view of
the public plaza from the highway. The appellants would, in
effect, be constrained to let their land remain idle and unused for
the obvious purpose for which it is best suited, being urban in
character. To legally achieve that result, the municipality must
give appellants just compensation and an opportunity to be
heard.
An ordinance which permanently so restricts the use of
property that it can not be used for any reasonable
purpose goes, it is plain, beyond regulation and must
be recognized as a taking of the property. The only
substantial difference, in such case, between
restriction and actual taking, is that the restriction
leaves the owner subject to the burden of payment of
taxation, while outright confiscation would relieve him
of that burden. (Arverne Bay Constr. Co. vs. Thatcher
(N.Y.) 117 ALR. 1110, 1116).
A regulation which substantially deprives an owner of
all beneficial use of his property is confiscation and is a
deprivation within the meaning of the 14th
Amendment. (Sundlum vs. Zoning Bd., 145 Atl. 451;
also Eaton vs. Sweeny, 177 NE 412; Taylor vs.
Jacksonville, 133 So. 114).
Zoning which admittedly limits property to a use which
can not reasonably be made of it cannot be said to set
aside such property to a use but constitutes the taking
of such property without just compensation. Use of
property is an element of ownership therein.
Regardless of the opinion of zealots that property may
properly, by zoning, be utterly destroyed without
compensation, such principle finds no support in the
genius of our government nor in the principles of
justice as we known them. Such a doctrine shocks the
sense of justice. If it be of public benefit that property
remain open and unused, then certainly the public, and
not the private individuals, should bear the cost of
reasonable compensation for such property under the
rules of law governing the condemnation of private
TROPANG POTCHI
property for public use. (Tews vs. Woolhiser (1933) 352
I11. 212, 185 N.E. 827) (Emphasis supplied.)
The validity of the ordinance in question was justified by the court
below under section 2243, par. (c), of the Revised Administrative
Code, as amended. This section provides:
SEC. 2243. Certain legislative powers of discretionary
character. — The municipal council shall have
authority to exercise the following discretionary
powers:
xxx     xxx     xxx
(c) To establish fire limits in populous centers,
prescribe the kinds of buildings that may be
constructed or repaired within them, and issue permits
for the creation or repair thereof, charging a fee which
shall be determined by the municipal council and
which shall not be less than two pesos for each
building permit and one peso for each repair permit
issued. The fees collected under the provisions of this
subsection shall accrue to the municipal school fund.
Under the provisions of the section above quoted, however, the
power of the municipal council to require the issuance of building
permits rests upon its first establishing fire limits in populous
parts of the town and prescribing the kinds of buildings that may
be constructed or repaired within them. As there is absolutely no
showing in this case that the municipal council had either
established fire limits within the municipality or set standards for
the kind or kinds of buildings to be constructed or repaired within
them before it passed the ordinance in question, it is clear that
said ordinance was not conceived and promulgated under the
express authority of sec. 2243 (c) aforequoted.
We rule that the regulation in question, Municipal Ordinance No.
7, Series of 1950, of the Municipality of Baao, Camarines Sur, was
beyond the authority of said municipality to enact, and is
therefore null and void. Hence, the conviction of herein appellants
is reversed, and said accused are acquitted, with costs de oficio.
So ordered.
Para
G.R. No. L-20620 August 15, 1974
REPUBLIC OF THE PHILIPPINES, plaintiff-appellant, 
vs.
CARMEN M. VDA. DE CASTELLVI, ET AL., defendants-appellees.
62
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Office of the Solicitor General for plaintiff-appellant.
C.A. Mendoza & A. V. Raquiza and Alberto Cacnio & Associates for
defendant-appellees.
 
ZALDIVAR, J.:p
Appeal from the decision of the Court of First Instance of
Pampanga in its Civil Case No. 1623, an expropriation proceeding.
Plaintiff-appellant, the Republic of the Philippines, (hereinafter
referred to as the Republic) filed, on June 26, 1959, a complaint
for eminent domain against defendant-appellee, Carmen M. Vda.
de Castellvi, judicial administratrix of the estate of the late
Alfonso de Castellvi (hereinafter referred to as Castellvi), over a
parcel of land situated in the barrio of San Jose, Floridablanca,
Pampanga, described as follows:
A parcel of land, Lot No. 199-B Bureau of
Lands Plan Swo 23666. Bounded on the NE
by Maria Nieves Toledo-Gozun; on the SE by
national road; on the SW by AFP
reservation, and on the NW by AFP
reservation. Containing an area of 759,299
square meters, more or less, and registered
in the name of Alfonso Castellvi under TCT
No. 13631 of the Register of Pampanga ...;
and against defendant-appellee Maria Nieves Toledo Gozun
(hereinafter referred to as Toledo-Gozun over two parcels of land
described as follows:
A parcel of land (Portion Lot Blk-1, Bureau
of Lands Plan Psd, 26254. Bounded on the
NE by Lot 3, on the SE by Lot 3; on the SW
by Lot 1-B, Blk. 2 (equivalent to Lot 199-B
Swo 23666; on the NW by AFP military
reservation. Containing an area of 450,273
square meters, more or less and registered
in the name of Maria Nieves Toledo-Gozun
under TCT No. 8708 of the Register of
Deeds of Pampanga. ..., and
A parcel of land (Portion of lot 3, Blk-1,
Bureau of Lands Plan Psd 26254. Bounded
on the NE by Lot No. 3, on the SE by school
lot and national road, on the SW by Lot 1-B
Blk 2 (equivalent to Lot 199-B Swo 23666),
on the NW by Lot 1-B, Blk-1. Containing an
area of 88,772 square meters, more or less,
and registered in the name of Maria Nieves
Toledo Gozun under TCT No. 8708 of the
Register of Deeds of Pampanga, ....
In its complaint, the Republic alleged, among other things, that
the fair market value of the above-mentioned lands, according to
the Committee on Appraisal for the Province of Pampanga, was
not more than P2,000 per hectare, or a total market value of
P259,669.10; and prayed, that the provisional value of the lands
be fixed at P259.669.10, that the court authorizes plaintiff to take
immediate possession of the lands upon deposit of that amount
with the Provincial Treasurer of Pampanga; that the court
appoints three commissioners to ascertain and report to the court
the just compensation for the property sought to be expropriated,
and that the court issues thereafter a final order of
condemnation.
On June 29, 1959 the trial court issued an order fixing the
provisional value of the lands at P259,669.10.
In her "motion to dismiss" filed on July 14, 1959, Castellvi alleged,
among other things, that the land under her administration, being
a residential land, had a fair market value of P15.00 per square
meter, so it had a total market value of P11,389,485.00; that the
Republic, through the Armed Forces of the Philippines,
particularly the Philippine Air Force, had been, despite repeated
demands, illegally occupying her property since July 1, 1956,
thereby preventing her from using and disposing of it, thus
causing her damages by way of unrealized profits. This defendant
prayed that the complaint be dismissed, or that the Republic be
ordered to pay her P15.00 per square meter, or a total of
P11,389,485.00, plus interest thereon at 6% per annum from July
1, 1956; that the Republic be ordered to pay her P5,000,000.00 as
unrealized profits, and the costs of the suit.
By order of the trial court, dated August, 1959, Amparo C. Diaz,
Dolores G. viuda de Gil, Paloma Castellvi, Carmen Castellvi, Rafael
Castellvi, Luis Castellvi, Natividad Castellvi de Raquiza, Jose
Castellvi and Consuelo Castellvi were allowed to intervene as
parties defendants. Subsequently, Joaquin V. Gozun, Jr., husband
of defendant Nieves Toledo Gozun, was also allowed by the court
to intervene as a party defendant.
After the Republic had deposited with the Provincial Treasurer of
Pampanga the amount of P259,669.10, the trial court ordered
that the Republic be placed in possession of the lands. The
Republic was actually placed in possession of the lands on August
10, 
1959. 1
TROPANG POTCHI
In her "motion to dismiss", dated October 22, 1959, Toledo-Gozun
alleged, among other things, that her two parcels of land were
residential lands, in fact a portion with an area of 343,303 square
meters had already been subdivided into different lots for sale to
the general public, and the remaining portion had already been
set aside for expansion sites of the already completed
subdivisions; that the fair market value of said lands was P15.00
per square meter, so they had a total market value of
P8,085,675.00; and she prayed that the complaint be dismissed,
or that she be paid the amount of P8,085,675.00, plus interest
thereon at the rate of 6% per annum from October 13, 1959, and
attorney's fees in the amount of P50,000.00.
Intervenors Jose Castellvi and Consuelo Castellvi in their answer,
filed on February 11, 1960, and also intervenor Joaquin Gozun, Jr.,
husband of defendant Maria Nieves Toledo-Gozun, in his motion
to dismiss, dated May 27, 1960, all alleged that the value of the
lands sought to be expropriated was at the rate of P15.00 per
square meter.
On November 4, 1959, the trial court authorized the Provincial
Treasurer of Pampanga to pay defendant Toledo-Gozun the sum
of P107,609.00 as provisional value of her lands. 2 On May 16,
1960 the trial Court authorized the Provincial Treasurer of
Pampanga to pay defendant Castellvi the amount of P151,859.80
as provisional value of the land under her administration, and
ordered said defendant to deposit the amount with the Philippine
National Bank under the supervision of the Deputy Clerk of Court.
In another order of May 16, 1960 the trial Court entered an order
of condemnation.3
The trial Court appointed three commissioners: Atty. Amadeo
Yuzon, Clerk of Court, as commissioner for the court; Atty.
Felicisimo G. Pamandanan, counsel of the Philippine National
Bank Branch at Floridablanca, for the plaintiff; and Atty. Leonardo
F. Lansangan, Filipino legal counsel at Clark Air Base, for the
defendants. The Commissioners, after having qualified
themselves, proceeded to the performance of their duties.
On March 15,1961 the Commissioners submitted their report and
recommendation, wherein, after having determined that the
lands sought to be expropriated were residential lands, they
recommended unanimously that the lowest price that should be
paid was P10.00 per square meter, for both the lands of Castellvi
and Toledo-Gozun; that an additional P5,000.00 be paid to
Toledo-Gozun for improvements found on her land; that legal
interest on the compensation, computed from August 10, 1959,
be paid after deducting the amounts already paid to the owners,
and that no consequential damages be awarded. 4 The
Commissioners' report was objected to by all the parties in the
case — by defendants Castellvi and Toledo-Gozun, who insisted
that the fair market value of their lands should be fixed at P15.00
63
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
per square meter; and by the Republic, which insisted that the
price to be paid for the lands should be fixed at P0.20 per square
meter. 5
After the parties-defendants and intervenors had filed their
respective memoranda, and the Republic, after several extensions
of time, had adopted as its memorandum its objections to the
report of the Commissioners, the trial court, on May 26, 1961,
rendered its decision 6 the dispositive portion of which reads as
follows:
WHEREFORE, taking into account all the
foregoing circumstances, and that the lands
are titled, ... the rising trend of land
values ..., and the lowered purchasing
power of the Philippine peso, the court
finds that the unanimous recommendation
of the commissioners of ten (P10.00) pesos
per square meter for the three lots of the
defendants subject of this action is fair and
just.
xxx xxx xxx
The plaintiff will pay 6% interest per annum
on the total value of the lands of defendant
Toledo-Gozun since (sic) the amount
deposited as provisional value from August
10, 1959 until full payment is made to said
defendant or deposit therefor is made in
court.
In respect to the defendant Castellvi,
interest at 6% per annum will also be paid
by the plaintiff to defendant Castellvi from
July 1, 1956 when plaintiff commenced its
illegal possession of the Castellvi land when
the instant action had not yet been
commenced to July 10, 1959 when the
provisional value thereof was actually
deposited in court, on the total value of the
said (Castellvi) land as herein adjudged. The
same rate of interest shall be paid from July
11, 1959 on the total value of the land
herein adjudged minus the amount
deposited as provisional value, or
P151,859.80, such interest to run until full
payment is made to said defendant or
deposit therefor is made in court. All the
intervenors having failed to produce
evidence in support of their respective
interventions, said interventions are
ordered dismissed.
The costs shall be charged to the plaintiff.
On June 21, 1961 the Republic filed a motion for a new trial
and/or reconsideration, upon the grounds of newly-discovered
evidence, that the decision was not supported by the evidence,
and that the decision was against the law, against which motion
defendants Castellvi and Toledo-Gozun filed their respective
oppositions. On July 8, 1961 when the motion of the Republic for
new trial and/or reconsideration was called for hearing, the
Republic filed a supplemental motion for new trial upon the
ground of additional newly-discovered evidence. This motion for
new trial and/or reconsideration was denied by the court on July
12, 1961.
On July 17, 1961 the Republic gave notice of its intention to
appeal from the decision of May 26, 1961 and the order of July
12, 1961. Defendant Castellvi also filed, on July 17, 1961, her
notice of appeal from the decision of the trial court.
The Republic filed various ex-parte motions for extension of time
within which to file its record on appeal. The Republic's record on
appeal was finally submitted on December 6, 1961.
Defendants Castellvi and Toledo-Gozun filed not only a joint
opposition to the approval of the Republic's record on appeal, but
also a joint memorandum in support of their opposition. The
Republic also filed a memorandum in support of its prayer for the
approval of its record on appeal. On December 27, 1961 the trial
court issued an order declaring both the record on appeal filed by
the Republic, and the record on appeal filed by defendant
Castellvi as having been filed out of time, thereby dismissing both
appeals.
On January 11, 1962 the Republic filed a "motion to strike out the
order of December 27, 1961 and for reconsideration", and
subsequently an amended record on appeal, against which
motion the defendants Castellvi and Toledo-Gozun filed their
opposition. On July 26, 1962 the trial court issued an order,
stating that "in the interest of expediency, the questions raised
may be properly and finally determined by the Supreme Court,"
and at the same time it ordered the Solicitor General to submit a
record on appeal containing copies of orders and pleadings
specified therein. In an order dated November 19, 1962, the trial
court approved the Republic's record on appeal as amended.
Defendant Castellvi did not insist on her appeal. Defendant
Toledo-Gozun did not appeal.
TROPANG POTCHI
The motion to dismiss the Republic's appeal was reiterated by
appellees Castellvi and Toledo-Gozun before this Court, but this
Court denied the motion.
In her motion of August 11, 1964, appellee Castellvi sought to
increase the provisional value of her land. The Republic, in its
comment on Castellvi's motion, opposed the same. This Court
denied Castellvi's motion in a resolution dated October 2,1964.
The motion of appellees, Castellvi and Toledo-Gozun, dated
October 6, 1969, praying that they be authorized to mortgage the
lands subject of expropriation, was denied by this Court or
October 14, 1969.
On February 14, 1972, Attys. Alberto Cacnio, and Associates,
counsel for the estate of the late Don Alfonso de Castellvi in the
expropriation proceedings, filed a notice of attorney's lien, stating
that as per agreement with the administrator of the estate of Don
Alfonso de Castellvi they shall receive by way of attorney's fees,
"the sum equivalent to ten per centum of whatever the court may
finally decide as the expropriated price of the property subject
matter of the case."
---------
Before this Court, the Republic contends that the lower court
erred:
1. In finding the price of P10 per square
meter of the lands subject of the instant
proceedings as just compensation;
2. In holding that the "taking" of the
properties under expropriation commenced
with the filing of this action;
3. In ordering plaintiff-appellant to pay 6%
interest on the adjudged value of the
Castellvi property to start from July of 1956;
4. In denying plaintiff-appellant's motion for
new trial based on newly discovered
evidence.
In its brief, the Republic discusses the second error assigned as
the first issue to be considered. We shall follow the sequence of
the Republic's discussion.
64
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
1. In support of the assigned error that the lower court erred in
holding that the "taking" of the properties under expropriation
commenced with the filing of the complaint in this case, the
Republic argues that the "taking" should be reckoned from the
year 1947 when by virtue of a special lease agreement between
the Republic and appellee Castellvi, the former was granted the
"right and privilege" to buy the property should the lessor wish to
terminate the lease, and that in the event of such sale, it was
stipulated that the fair market value should be as of the time of
occupancy; and that the permanent improvements amounting to
more that half a million pesos constructed during a period of
twelve years on the land, subject of expropriation, were indicative
of an agreed pattern of permanency and stability of occupancy by
the Philippine Air Force in the interest of national Security. 7
Appellee Castellvi, on the other hand, maintains that the "taking"
of property under the power of eminent domain requires two
essential elements, to wit: (1) entrance and occupation by
condemn or upon the private property for more than a
momentary or limited period, and (2) devoting it to a public use in
such a way as to oust the owner and deprive him of all beneficial
enjoyment of the property. This appellee argues that in the
instant case the first element is wanting, for the contract of lease
relied upon provides for a lease from year to year; that the second
element is also wanting, because the Republic was paying the
lessor Castellvi a monthly rental of P445.58; and that the contract
of lease does not grant the Republic the "right and privilege" to
buy the premises "at the value at the time of occupancy." 8
Appellee Toledo-Gozun did not comment on the Republic's
argument in support of the second error assigned, because as far
as she was concerned the Republic had not taken possession of
her lands prior to August 10, 1959. 9
In order to better comprehend the issues raised in the appeal, in
so far as the Castellvi property is concerned, it should be noted
that the Castellvi property had been occupied by the Philippine
Air Force since 1947 under a contract of lease, typified by the
contract marked Exh. 4-Castellvi, the pertinent portions of which
read:
CONTRACT OF LEASE
This AGREEMENT OF LEASE MADE AND
ENTERED into by and between INTESTATE
ESTATE OF ALFONSO DE CASTELLVI,
represented by CARMEN M. DE CASTELLVI,
Judicial Administratrix ... hereinafter called
the LESSOR and THE REPUBLIC OF THE
PHILIPPINES represented by MAJ. GEN.
CALIXTO DUQUE, Chief of Staff of the
ARMED FORCES OF THE PHILIPPINES,
hereinafter called the LESSEE,
WITNESSETH:
1. For and in consideration of the rentals
hereinafter reserved and the mutual terms,
covenants and conditions of the parties, the
LESSOR has, and by these presents does,
lease and let unto the LESSEE the following
described land together with the
improvements thereon and appurtenances
thereof, viz:
Un Terreno, Lote No. 27 del Plano de
subdivision Psu 34752, parte de la hacienda
de Campauit, situado en el Barrio de San
Jose, Municipio de Floridablanca Pampanga.
... midiendo una extension superficial de
cuatro milliones once mil cuatro cientos
trienta y cinco (4,001,435) [sic] metros
cuadrados, mas o menos.
Out of the above described property, 75.93
hectares thereof are actually occupied and
covered by this contract. .
Above lot is more particularly described in
TCT No. 1016, province of  occupied by the AFP, reasonable and
Pampanga ...
of which premises, the LESSOR warrants that he/she/they/is/are
the registered owner(s) and with full authority to execute a
contract of this nature.
2. The term of this lease shall be for the
period beginning July 1, 1952 the date the
premises were occupied by the PHILIPPINE
AIR FORCE, AFP until June 30, 1953, subject
to renewal for another year at the option of
the LESSEE or unless sooner terminated by
the LESSEE as hereinafter provided.
3. The LESSOR hereby warrants that the
LESSEE shall have quiet, peaceful and
undisturbed possession of the demised
premises throughout the full term or period
of this lease and the LESSOR undertakes
without cost to the LESSEE to eject all
trespassers, but should the LESSOR fail to
do so, the LESSEE at its option may proceed
TROPANG POTCHI
to do so at the expense of the LESSOR. The
LESSOR further agrees that should
he/she/they sell or encumber all or any part
of the herein described premises during the
period of this lease, any conveyance will be
conditioned on the right of the LESSEE
hereunder.
4. The LESSEE shall pay to the LESSOR as
monthly rentals under this lease the sum of
FOUR HUNDRED FIFTY-FIVE PESOS &
58/100 (P455.58) ...
5. The LESSEE may, at any time prior to the
termination of this lease, use the property
for any purpose or purposes and, at its own
costs and expense make alteration, install
facilities and fixtures and errect additions ...
which facilities or fixtures ... so placed in,
upon or attached to the said premises shall
be and remain property of the LESSEE and
may be removed therefrom by the LESSEE
prior to the termination of this lease. The
LESSEE shall surrender possession of the
premises upon the expiration or
termination of this lease and if so required
by the LESSOR, shall return the premises in
substantially the same condition as that
existing at the time same were first
ordinary wear and tear and damages by the
elements or by circumstances over which
the LESSEE has no control excepted:
PROVIDED, that if the LESSOR so requires
the return of the premises in such
condition, the LESSOR shall give written
notice thereof to the LESSEE at least twenty
(20) days before the termination of the
lease and provided, further, that should the
LESSOR give notice within the time specified
above, the LESSEE shall have the right and
privilege to compensate the LESSOR at the
fair value or the equivalent, in lieu of
performance of its obligation, if any, to
restore the premises. Fair value is to be
determined as the value at the time of
occupancy less fair wear and tear and
depreciation during the period of this lease.
6. The LESSEE may terminate this lease at
any time during the term hereof by giving
written notice to the LESSOR at least thirty
(30) days in advance ...
65
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
7. The LESSEE should not be responsible,
except under special legislation for any
damages to the premises by reason of
combat operations, acts of GOD, the
elements or other acts and deeds not due
to the negligence on the part of the LESSEE.
8. This LEASE AGREEMENT supersedes and
voids any and all agreements and
undertakings, oral or written, previously
entered into between the parties covering
the property herein leased, the same having
been merged herein. This AGREEMENT may
not be modified or altered except by
instrument in writing only duly signed by
the parties. 10
It was stipulated by the parties, that "the foregoing contract of
lease (Exh. 4, Castellvi) is 'similar in terms and conditions,
including the date', with the annual contracts entered into from
year to year between defendant Castellvi and the Republic of the
Philippines (p. 17, t.s.n., Vol. III)". 11 It is undisputed, therefore,
that the Republic occupied Castellvi's land from July 1, 1947, by
virtue of the above-mentioned contract, on a year to year basis
(from July 1 of each year to June 30 of the succeeding year) under
the terms and conditions therein stated.
Before the expiration of the contract of lease on June 30, 1956 the
Republic sought to renew the same but Castellvi refused. When
the AFP refused to vacate the leased premises after the
termination of the contract, on July 11, 1956, Castellvi wrote to
the Chief of Staff, AFP, informing the latter that the heirs of the
property had decided not to continue leasing the property in
question because they had decided to subdivide the land for sale
to the general public, demanding that the property be vacated
within 30 days from receipt of the letter, and that the premises be
returned in substantially the same condition as before occupancy
(Exh. 5 — Castellvi). A follow-up letter was sent on January 12,
1957, demanding the delivery and return of the property within
one month from said date (Exh. 6 Castellvi). On January 30, 1957,
Lieutenant General Alfonso Arellano, Chief of Staff, answered the
letter of Castellvi, saying that it was difficult for the army to vacate
the premises in view of the permanent installations and other
facilities worth almost P500,000.00 that were erected and already
established on the property, and that, there being no other
recourse, the acquisition of the property by means of
expropriation proceedings would be recommended to the
President (Exhibit "7" — Castellvi).
Defendant Castellvi then brought suit in the Court of First Instance
of Pampanga, in Civil Case No. 1458, to eject the Philippine Air
Force from the land. While this ejectment case was pending, the
Republic instituted these expropriation proceedings, and, as
stated earlier in this opinion, the Republic was placed in
possession of the lands on August 10, 1959, On November 21,
1959, the Court of First Instance of Pampanga, dismissed Civil
Case No. 1458, upon petition of the parties, in an order which, in
part, reads as follows:
1. Plaintiff has agreed, as a matter of fact
has already signed an agreement with
defendants, whereby she has agreed to
receive the rent of the lands, subject matter
of the instant case from June 30, 1966 up to
1959 when the Philippine Air Force was
placed in possession by virtue of an order of
the Court upon depositing the provisional
amount as fixed by the Provincial Appraisal
Committee with the Provincial Treasurer of
Pampanga;
2. That because of the above-cited
agreement wherein the administratrix
decided to get the rent corresponding to
the rent from 1956 up to 1959 and
considering that this action is one of illegal
detainer and/or to recover the possession
of said land by virtue of non-payment of
rents, the instant case now has become
moot and academic and/or by virtue of the
agreement signed by plaintiff, she has
waived her cause of action in the above-
entitled case. 12
The Republic urges that the "taking " of Castellvi's property should
be deemed as of the year 1947 by virtue of afore-quoted lease
agreement. In American Jurisprudence, Vol. 26, 2nd edition,
Section 157, on the subject of "Eminent Domain, we read the
definition of "taking" (in eminent domain) as follows:
Taking' under the power of eminent domain
may be defined generally as entering upon
private property for more than a
momentary period, and, under the warrant
or color of legal authority, devoting it to a
public use, or otherwise informally
appropriating or injuriously affecting it in
such a way as substantially to oust the
owner and deprive him of all beneficial
enjoyment thereof. 13
Pursuant to the aforecited authority, a number of circumstances
must be present in the "taking" of property for purposes of
eminent domain.
TROPANG POTCHI
First, the expropriator must enter a private property. This
circumstance is present in the instant case, when by virtue of the
lease agreement the Republic, through the AFP, took possession
of the property of Castellvi.
Second, the entrance into private property must be for more than
a momentary period. "Momentary" means, "lasting but a
moment; of but a moment's duration" (The Oxford English
Dictionary, Volume VI, page 596); "lasting a very short time;
transitory; having a very brief life; operative or recurring at every
moment" (Webster's Third International Dictionary, 1963 edition.)
The word "momentary" when applied to possession or occupancy
of (real) property should be construed to mean "a limited period"
— not indefinite or permanent. The aforecited lease contract was
for a period of one year, renewable from year to year. The entry
on the property, under the lease, is temporary, and considered
transitory. The fact that the Republic, through the AFP,
constructed some installations of a permanent nature does not
alter the fact that the entry into the land was transitory, or
intended to last a year, although renewable from year to year by
consent of 'The owner of the land. By express provision of the
lease agreement the Republic, as lessee, undertook to return the
premises in substantially the same condition as at the time the
property was first occupied by the AFP. It is claimed that the
intention of the lessee was to occupy the land permanently, as
may be inferred from the construction of permanent
improvements. But this "intention" cannot prevail over the clear
and express terms of the lease contract. Intent is to be deduced
from the language employed by the parties, and the terms 'of the
contract, when unambiguous, as in the instant case, are
conclusive in the absence of averment and proof of mistake or
fraud — the question being not what the intention was, but what
is expressed in the language used. (City of Manila v. Rizal Park Co.,
Inc., 53 Phil. 515, 525); Magdalena Estate, Inc. v. Myrick, 71 Phil.
344, 348). Moreover, in order to judge the intention of the
contracting parties, their contemporaneous and subsequent acts
shall be principally considered (Art. 1371, Civil Code). If the
intention of the lessee (Republic) in 1947 was really to occupy
permanently Castellvi's property, why was the contract of lease
entered into on year to year basis? Why was the lease agreement
renewed from year to year? Why did not the Republic expropriate
this land of Castellvi in 1949 when, according to the Republic
itself, it expropriated the other parcels of land that it occupied at
the same time as the Castellvi land, for the purpose of converting
them into a jet air base? 14 It might really have been the intention
of the Republic to expropriate the lands in question at some
future time, but certainly mere notice - much less an implied
notice — of such intention on the part of the Republic to
expropriate the lands in the future did not, and could not, bind
the landowner, nor bind the land itself. The expropriation must be
actually commenced in court (Republic vs. Baylosis, et al., 96 Phil.
461, 484).
66
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Third, the entry into the property should be under warrant or
color of legal authority. This circumstance in the "taking" may be
considered as present in the instant case, because the Republic
entered the Castellvi property as lessee.
Fourth, the property must be devoted to a public use or otherwise
informally appropriated or injuriously affected. It may be
conceded that the circumstance of the property being devoted to
public use is present because the property was used by the air
force of the AFP.
Fifth, the utilization of the property for public use must be in such
a way as to oust the owner and deprive him of all beneficial
enjoyment of the property. In the instant case, the entry of the
Republic into the property and its utilization of the same for
public use did not oust Castellvi and deprive her of all beneficial
enjoyment of the property. Castellvi remained as owner, and was
continuously recognized as owner by the Republic, as shown by
the renewal of the lease contract from year to year, and by the
provision in the lease contract whereby the Republic undertook to
return the property to Castellvi when the lease was terminated.
Neither was Castellvi deprived of all the beneficial enjoyment of
the property, because the Republic was bound to pay, and had
been paying, Castellvi the agreed monthly rentals until the time
when it filed the complaint for eminent domain on June 26, 1959.
It is clear, therefore, that the "taking" of Catellvi's property for
purposes of eminent domain cannot be considered to have taken
place in 1947 when the Republic commenced to occupy the
property as lessee thereof. We find merit in the contention of
Castellvi that two essential elements in the "taking" of property
under the power of eminent domain, namely: (1) that the
entrance and occupation by the condemnor must be for a
permanent, or indefinite period, and (2) that in devoting the
property to public use the owner was ousted from the property
and deprived of its beneficial use, were not present when the
Republic entered and occupied the Castellvi property in 1947.
Untenable also is the Republic's contention that although the
contract between the parties was one of lease on a year to year
basis, it was "in reality a more or less permanent right to occupy
the premises under the guise of lease with the 'right and privilege'
to buy the property should the lessor wish to terminate the
lease," and "the right to buy the property is merged as an integral
part of the lease relationship ... so much so that the fair market
value has been agreed upon, not, as of the time of purchase, but
as of the time of occupancy" 15 We cannot accept the Republic's
contention that a lease on a year to year basis can give rise to a
permanent right to occupy, since by express legal provision a
lease made for a determinate time, as was the lease of Castellvi's
land in the instant case, ceases upon the day fixed, without need
of a demand (Article 1669, Civil Code). Neither can it be said that
the right of eminent domain may be exercised by simply leasing
the premises to be expropriated (Rule 67, Section 1, Rules of
Court). Nor can it be accepted that the Republic would enter into
a contract of lease where its real intention was to buy, or why the
Republic should enter into a simulated contract of lease ("under
the guise of lease", as expressed by counsel for the Republic)
when all the time the Republic had the right of eminent domain,
and could expropriate Castellvi's land if it wanted to without
resorting to any guise whatsoever. Neither can we see how a right
to buy could be merged in a contract of lease in the absence of
any agreement between the parties to that effect. To sustain the
contention of the Republic is to sanction a practice whereby in
order to secure a low price for a land which the government
intends to expropriate (or would eventually expropriate) it would
first negotiate with the owner of the land to lease the land (for
say ten or twenty years) then expropriate the same when the
lease is about to terminate, then claim that the "taking" of the
property for the purposes of the expropriation be reckoned as of
the date when the Government started to occupy the property
under the lease, and then assert that the value of the property
being expropriated be reckoned as of the start of the lease, in
spite of the fact that the value of the property, for many good
reasons, had in the meantime increased during the period of the
lease. This would be sanctioning what obviously is a deceptive
scheme, which would have the effect of depriving the owner of
the property of its true and fair market value at the time when the
expropriation proceedings were actually instituted in court. The
Republic's claim that it had the "right and privilege" to buy the
property at the value that it had at the time when it first occupied
the property as lessee nowhere appears in the lease contract.
What was agreed expressly in paragraph No. 5 of the lease
agreement was that, should the lessor require the lessee to return
the premises in the same condition as at the time the same was
first occupied by the AFP, the lessee would have the "right and
privilege" (or option) of paying the lessor what it would fairly cost
to put the premises in the same condition as it was at the
commencement of the lease, in lieu of the lessee's performance
of the undertaking to put the land in said condition. The "fair
value" at the time of occupancy, mentioned in the lease
agreement, does not refer to the value of the property if bought
by the lessee, but refers to the cost of restoring the property in
the same condition as of the time when the lessee took
possession of the property. Such fair value cannot refer to the
purchase price, for purchase was never intended by the parties to
the lease contract. It is a rule in the interpretation of contracts
that "However general the terms of a contract may be, they shall
not be understood to comprehend things that are distinct and
cases that are different from those upon which the parties
intended to agree" (Art. 1372, Civil Code).
We hold, therefore, that the "taking" of the Castellvi property
should not be reckoned as of the year 1947 when the Republic
first occupied the same pursuant to the contract of lease, and that
the just compensation to be paid for the Castellvi property should
TROPANG POTCHI
not be determined on the basis of the value of the property as of
that year. The lower court did not commit an error when it held
that the "taking" of the property under expropriation commenced
with the filing of the complaint in this case.
Under Section 4 of Rule 67 of the Rules of Court, 16 the "just
compensation" is to be determined as of the date of the filing of
the complaint. This Court has ruled that when the taking of the
property sought to be expropriated coincides with the
commencement of the expropriation proceedings, or takes place
subsequent to the filing of the complaint for eminent domain, the
just compensation should be determined as of the date of the
filing of the complaint. (Republic vs. Philippine National Bank, L-
14158, April 12, 1961, 1 SCRA 957, 961-962). In the instant case, it
is undisputed that the Republic was placed in possession of the
Castellvi property, by authority of the court, on August 10, 1959.
The "taking" of the Castellvi property for the purposes of
determining the just compensation to be paid must, therefore, be
reckoned as of June 26, 1959 when the complaint for eminent
domain was filed.
Regarding the two parcels of land of Toledo-Gozun, also sought to
be expropriated, which had never been under lease to the
Republic, the Republic was placed in possession of said lands, also
by authority of the court, on August 10, 1959, The taking of those
lands, therefore, must also be reckoned as of June 26, 1959, the
date of the filing of the complaint for eminent domain.
2. Regarding the first assigned error — discussed as the second
issue — the Republic maintains that, even assuming that the value
of the expropriated lands is to be determined as of June 26, 1959,
the price of P10.00 per square meter fixed by the lower court "is
not only exhorbitant but also unconscionable, and almost
fantastic". On the other hand, both Castellvi and Toledo-Gozun
maintain that their lands are residential lands with a fair market
value of not less than P15.00 per square meter.
The lower court found, and declared, that the lands of Castellvi
and Toledo-Gozun are residential lands. The finding of the lower
court is in consonance with the unanimous opinion of the three
commissioners who, in their report to the court, declared that the
lands are residential lands.
The Republic assails the finding that the lands are residential,
contending that the plans of the appellees to convert the lands
into subdivision for residential purposes were only on paper,
there being no overt acts on the part of the appellees which
indicated that the subdivision project had been commenced, so
that any compensation to be awarded on the basis of the plans
would be speculative. The Republic's contention is not well taken.
We find evidence showing that the lands in question had ceased
to be devoted to the production of agricultural crops, that they
67
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
had become adaptable for residential purposes, and that the
appellees had actually taken steps to convert their lands into
residential subdivisions even before the Republic filed the
complaint for eminent domain. In the case of City of Manila vs.
Corrales (32 Phil. 82, 98) this Court laid down basic guidelines in
determining the value of the property expropriated for public
purposes. This Court said:
In determining the value of land
appropriated for public purposes, the same
consideration are to be regarded as in a
sale of property between private parties.
The inquiry, in such cases, must be what is
the property worth in the market, viewed
not merely with reference to the uses to
which it is at the time applied, but with
reference to the uses to which it is plainly
adapted, that is to say, What is it worth
from its availability for valuable uses?
So many and varied are the circumstances
to be taken into account in determining the
value of property condemned for public
purposes, that it is practically impossible to
formulate a rule to govern its appraisement
in all cases. Exceptional circumstances will
modify the most carefully guarded rule, but,
as a general thing, we should say that the
compensation of the owner is to be
estimated by reference to the use for which
the property is suitable, having regard to
the existing business or wants of the
community, or such as may be reasonably
expected in the immediate future. (Miss.
and Rum River Boom Co. vs. Patterson, 98
U.S., 403).
In expropriation proceedings, therefore, the owner of the land has
the right to its value for the use for which it would bring the most
in the market. 17 The owner may thus show every advantage that
his property possesses, present and prospective, in order that the
price it could be sold for in the market may be satisfactorily
determined. 18 The owner may also show that the property is
suitable for division into village or town lots. 19
The trial court, therefore, correctly considered, among other
circumstances, the proposed subdivision plans of the lands sought
to be expropriated in finding that those lands are residential lots.
This finding of the lower court is supported not only by the
unanimous opinion of the commissioners, as embodied in their
report, but also by the Provincial Appraisal Committee of the
province of Pampanga composed of the Provincial Treasurer, the
Provincial Auditor and the District Engineer. In the minutes of the
meeting of the Provincial Appraisal Committee, held on May 14,
1959 (Exh. 13-Castellvi) We read in its Resolution No. 10 the
following:
3. Since 1957 the land has been classified as
residential in view of its proximity to the air
base and due to the fact that it was not
being devoted to agriculture. In fact, there
is a plan to convert it into a subdivision for
residential purposes. The taxes due on the
property have been paid based on its
classification as residential land;
The evidence shows that Castellvi broached the idea of
subdividing her land into residential lots as early as July 11, 1956
in her letter to the Chief of Staff of the Armed Forces of the
Philippines. (Exh. 5-Castellvi) As a matter of fact, the layout of the
subdivision plan was tentatively approved by the National
Planning Commission on September 7, 1956. (Exh. 8-Castellvi).
The land of Castellvi had not been devoted to agriculture since
1947 when it was leased to the Philippine Army. In 1957 said land
was classified as residential, and taxes based on its classification
as residential had been paid since then (Exh. 13-Castellvi). The
location of the Castellvi land justifies its suitability for a residential
subdivision. As found by the trial court, "It is at the left side of the
entrance of the Basa Air Base and bounded on two sides by roads
(Exh. 13-Castellvi), paragraphs 1 and 2, Exh. 12-Castellvi), the
poblacion, (of Floridablanca) the municipal building, and the
Pampanga Sugar Mills are closed by. The barrio schoolhouse and
chapel are also near (T.S.N. November 23,1960, p. 68)." 20
The lands of Toledo-Gozun (Lot 1-B and Lot 3) are practically of
the same condition as the land of Castellvi. The lands of Toledo-
Gozun adjoin the land of Castellvi. They are also contiguous to the
Basa Air Base, and are along the road. These lands are near the
barrio schoolhouse, the barrio chapel, the Pampanga Sugar Mills,
and the poblacion of Floridablanca (Exhs. 1, 3 and 4-Toledo-
Gozun). As a matter of fact, regarding lot 1-B it had already been
surveyed and subdivided, and its conversion into a residential
subdivision was tentatively approved by the National Planning
Commission on July 8, 1959 (Exhs. 5 and 6 Toledo-Gozun). As early
as June, 1958, no less than 32 man connected with the Philippine
Air Force among them commissioned officers, non-commission
officers, and enlisted men had requested Mr. and Mrs. Joaquin D.
Gozun to open a subdivision on their lands in question (Exhs. 8, 8-
A to 8-ZZ-Toledo-Gozun). 21
We agree with the findings, and the conclusions, of the lower
court that the lands that are the subject of expropriation in the
present case, as of August 10, 1959 when the same were taken
possession of by the Republic, were residential lands and were
TROPANG POTCHI
adaptable for use as residential subdivisions. Indeed, the owners
of these lands have the right to their value for the use for which
they would bring the most in the market at the time the same
were taken from them. The most important issue to be resolved
in the present case relates to the question of what is the just
compensation that should be paid to the appellees.
The Republic asserts that the fair market value of the lands of the
appellees is P.20 per square meter. The Republic cites the case
of Republic vs. Narciso, et al., L-6594, which this Court decided on
May 18, 1956. The Narciso case involved lands that belonged to
Castellvi and Toledo-Gozun, and to one Donata Montemayor,
which were expropriated by the Republic in 1949 and which are
now the site of the Basa Air Base. In the Narciso case this Court
fixed the fair market value at P.20 per square meter. The lands
that are sought to be expropriated in the present case being
contiguous to the lands involved in the Narciso case, it is the stand
of the Republic that the price that should be fixed for the lands
now in question should also be at P.20 per square meter.
We can not sustain the stand of the Republic. We find that the
price of P.20 per square meter, as fixed by this Court in the
Narciso case, was based on the allegation of the defendants
(owners) in their answer to the complaint for eminent domain in
that case that the price of their lands was P2,000.00 per hectare
and that was the price that they asked the court to pay them. This
Court said, then, that the owners of the land could not be given
more than what they had asked, notwithstanding the
recommendation of the majority of the Commission on Appraisal
— which was adopted by the trial court — that the fair market
value of the lands was P3,000.00 per hectare. We also find that
the price of P.20 per square meter in the Narciso case was
considered the fair market value of the lands as of the year 1949
when the expropriation proceedings were instituted, and at that
time the lands were classified as sugar lands, and assessed for
taxation purposes at around P400.00 per hectare, or P.04 per
square meter. 22 While the lands involved in the present case, like
the lands involved in the Narciso case, might have a fair market
value of P.20 per square meter in 1949, it can not be denied that
ten years later, in 1959, when the present proceedings were
instituted, the value of those lands had increased considerably.
The evidence shows that since 1949 those lands were no longer
cultivated as sugar lands, and in 1959 those lands were already
classified, and assessed for taxation purposes, as residential lands.
In 1959 the land of Castellvi was assessed at P1.00 per square
meter. 23
The Republic also points out that the Provincial Appraisal
Committee of Pampanga, in its resolution No. 5 of February 15,
1957 (Exhibit D), recommended the sum of P.20 per square meter
as the fair valuation of the Castellvi property. We find that this
resolution was made by the Republic the basis in asking the court
to fix the provisional value of the lands sought to be expropriated
68
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
at P259,669.10, which was approved by the court. 24 It must be
considered, however, that the amount fixed as the provisional
value of the lands that are being expropriated does not
necessarily represent the true and correct value of the land. The
value is only "provisional" or "tentative", to serve as the basis for
the immediate occupancy of the property being expropriated by
the condemnor. The records show that this resolution No. 5 was
repealed by the same Provincial Committee on Appraisal in its
resolution No. 10 of May 14, 1959 (Exhibit 13-Castellvi). In that
resolution No. 10, the appraisal committee stated that "The
Committee has observed that the value of the land in this locality
has increased since 1957 ...", and recommended the price of
P1.50 per square meter. It follows, therefore, that, contrary to the
stand of the Republic, that resolution No. 5 of the Provincial
Appraisal Committee can not be made the basis for fixing the fair
market value of the lands of Castellvi and Toledo-Gozun.
The Republic further relied on the certification of the Acting
Assistant Provincial Assessor of Pampanga, dated February 8,
1961 (Exhibit K), to the effect that in 1950 the lands of Toledo-
Gozun were classified partly as sugar land and partly as urban
land, and that the sugar land was assessed at P.40 per square
meter, while part of the urban land was assessed at P.40 per
square meter and part at P.20 per square meter; and that in 1956
the Castellvi land was classified as sugar land and was assessed at
P450.00 per hectare, or P.045 per square meter. We can not also
consider this certification of the Acting Assistant Provincial
Assessor as a basis for fixing the fair market value of the lands of
Castellvi and Toledo-Gozun because, as the evidence shows, the
lands in question, in 1957, were already classified and assessed
for taxation purposes as residential lands. The certification of the
assessor refers to the year 1950 as far as the lands of Toledo-
Gozun are concerned, and to the year 1956 as far as the land of
Castellvi is concerned. Moreover, this Court has held that the
valuation fixed for the purposes of the assessment of the land for
taxation purposes can not bind the landowner where the latter
did not intervene in fixing it. 25
On the other hand, the Commissioners, appointed by the court to
appraise the lands that were being expropriated, recommended
to the court that the price of P10.00 per square meter would be
the fair market value of the lands. The commissioners made their
recommendation on the basis of their observation after several
ocular inspections of the lands, of their own personal knowledge
of land values in the province of Pampanga, of the testimonies of
the owners of the land, and other witnesses, and of documentary
evidence presented by the appellees. Both Castellvi and Toledo-
Gozun testified that the fair market value of their respective land
was at P15.00 per square meter. The documentary evidence
considered by the commissioners consisted of deeds of sale of
residential lands in the town of San Fernando and in Angeles City,
in the province of Pampanga, which were sold at prices ranging
from P8.00 to P20.00 per square meter (Exhibits 15, 16, 17, 18,
19, 20, 21, 22, 23-Castellvi). The commissioners also considered
the decision in Civil Case No. 1531 of the Court of First Instance of
Pampanga, entitled Republic vs. Sabina Tablante, which was
expropriation case filed on January 13, 1959, involving a parcel of
land adjacent to the Clark Air Base in Angeles City, where the
court fixed the price at P18.00 per square meter (Exhibit 14-
Castellvi). In their report, the commissioners, among other things,
said:
... This expropriation case is specially
pointed out, because the circumstances and
factors involved therein are similar in many
respects to the defendants' lands in this
case. The land in Civil Case No. 1531 of this
Court and the lands in the present case
(Civil Case No. 1623) are both near the air
bases, the Clark Air Base and the Basa Air
Base respectively. There is a national road
fronting them and are situated in a first-
class municipality. As added advantage it
may be said that the Basa Air Base land is
very near the sugar mill at Del Carmen,
Floridablanca, Pampanga, owned by the
Pampanga Sugar Mills. Also just stone's
throw away from the same lands is a
beautiful vacation spot at Palacol, a sitio of
the town of Floridablanca, which counts
with a natural swimming pool for
vacationists on weekends. These
advantages are not found in the case of the
Clark Air Base. The defendants' lands are
nearer to the poblacion of Floridablanca
then Clark Air Base is nearer (sic) to the
poblacion of Angeles, Pampanga.
The deeds of absolute sale, according to the
undersigned commissioners, as well as the
land in Civil Case No. 1531 are competent
evidence, because they were executed
during the year 1959 and before August 10
of the same year. More specifically so the
land at Clark Air Base which coincidentally is
the subject matter in the complaint in said
Civil Case No. 1531, it having been filed on
January 13, 1959 and the taking of the land
involved therein was ordered by the Court
of First Instance of Pampanga on January
15, 1959, several months before the lands
in this case were taken by the plaintiffs ....
From the above and considering further
that the lowest as well as the highest price
per square meter obtainable in the market
TROPANG POTCHI
of Pampanga relative to subdivision lots
within its jurisdiction in the year 1959 is
very well known by the Commissioners, the
Commission finds that the lowest price that
can be awarded to the lands in question is
P10.00 per square meter. 26
The lower court did not altogether accept the findings of the
Commissioners based on the documentary evidence, but it
considered the documentary evidence as basis for comparison in
determining land values. The lower court arrived at the conclusion
that "the unanimous recommendation of the commissioners of
ten (P10.00) pesos per square meter for the three lots of the
defendants subject of this action is fair and just". 27 In arriving at
its conclusion, the lower court took into consideration, among
other circumstances, that the lands are titled, that there is a rising
trend of land values, and the lowered purchasing power of the
Philippine peso.
In the case of Manila Railroad Co. vs. Caligsihan, 40 Phil. 326, 328,
this Court said:
A court of first instance or, on appeal, the
Supreme Court, may change or modify the
report of the commissioners by increasing
or reducing the amount of the award if the
facts of the case so justify. While great
weight is attached to the report of the
commissioners, yet a court may substitute
therefor its estimate of the value of the
property as gathered from the record in
certain cases, as, where the commissioners
have applied illegal principles to the
evidence submitted to them, or where they
have disregarded a clear preponderance of
evidence, or where the amount allowed is
either palpably inadequate or excessive. 28
The report of the commissioners of appraisal in condemnation
proceedings are not binding, but merely advisory in character, as
far as the court is concerned. 29 In our analysis of the report of the
commissioners, We find points that merit serious consideration in
the determination of the just compensation that should be paid to
Castellvi and Toledo-Gozun for their lands. It should be noted that
the commissioners had made ocular inspections of the lands and
had considered the nature and similarities of said lands in relation
to the lands in other places in the province of Pampanga, like San
Fernando and Angeles City. We cannot disregard the observations
of the commissioners regarding the circumstances that make the
lands in question suited for residential purposes — their location
near the Basa Air Base, just like the lands in Angeles City that are
near the Clark Air Base, and the facilities that obtain because of
69
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
their nearness to the big sugar central of the Pampanga Sugar
mills, and to the flourishing first class town of Floridablanca. It is
true that the lands in question are not in the territory of San
Fernando and Angeles City, but, considering the facilities of
modern communications, the town of Floridablanca may be
considered practically adjacent to San Fernando and Angeles City.
It is not out of place, therefore, to compare the land values in
Floridablanca to the land values in San Fernando and Angeles City,
and form an idea of the value of the lands in Floridablanca with
reference to the land values in those two other communities.
The important factor in expropriation proceeding is that the
owner is awarded the just compensation for his property. We
have carefully studied the record, and the evidence, in this case,
and after considering the circumstances attending the lands in
question We have arrived at the conclusion that the price of
P10.00 per square meter, as recommended by the commissioners
and adopted by the lower court, is quite high. It is Our considered
view that the price of P5.00 per square meter would be a fair
valuation of the lands in question and would constitute a just
compensation to the owners thereof. In arriving at this conclusion
We have particularly taken into consideration the resolution of
the Provincial Committee on Appraisal of the province of
Pampanga informing, among others, that in the year 1959 the
land of Castellvi could be sold for from P3.00 to P4.00 per square
meter, while the land of Toledo-Gozun could be sold for from
P2.50 to P3.00 per square meter. The Court has weighed all the
circumstances relating to this expropriations proceedings, and in
fixing the price of the lands that are being expropriated the Court
arrived at a happy medium between the price as recommended
by the commissioners and approved by the court, and the price
advocated by the Republic. This Court has also taken judicial
notice of the fact that the value of the Philippine peso has
considerably gone down since the year 1959. 30Considering that
the lands of Castellvi and Toledo-Gozun are adjoining each other,
and are of the same nature, the Court has deemed it proper to fix
the same price for all these lands.
3. The third issue raised by the Republic
relates to the payment of interest. The
Republic maintains that the lower court
erred when it ordered the Republic to pay
Castellvi interest at the rate of 6% per
annum on the total amount adjudged as the
value of the land of Castellvi, from July 1,
1956 to July 10, 1959. We find merit in this
assignment of error.
In ordering the Republic to pay 6% interest on the total value of
the land of Castellvi from July 1, 1956 to July 10, 1959, the lower
court held that the Republic had illegally possessed the land of
Castellvi from July 1, 1956, after its lease of the land had expired
on June 30, 1956, until August 10, 1959 when the Republic was
TROPANG POTCHI
placed in possession of the land pursuant to the writ of possession In the supplemental motion, the alleged newly discovered
issued by the court. What really happened was that the Republic evidence were: (1) a deed of sale of some 35,000 square meters
continued to occupy the land of Castellvi after the expiration of its of land situated at Floridablanca for P7,500.00 (or about P.21 per
lease on June 30, 1956, so much so that Castellvi filed an square meter) executed in July, 1959, by the spouses Evelyn D.
ejectment case against the Republic in the Court of First Instance Laird and Cornelio G. Laird in favor of spouses Bienvenido S. Aguas
of Pampanga. 31 However, while that ejectment case was pending, and Josefina Q. Aguas; and (2) a deed of absolute sale of a parcel
the Republic filed the complaint for eminent domain in the of land having an area of 4,120,101 square meters, including the
present case and was placed in possession of the land on August sugar quota covered by Plantation Audit No. 161 1345, situated at
10, 1959, and because of the institution of the expropriation Floridablanca, Pampanga, for P860.00 per hectare (a little less
proceedings the ejectment case was later dismissed. In the order than P.09 per square meter) executed on October 22, 1957 by
dismissing the ejectment case, the Court of First Instance of Jesus Toledo y Mendoza in favor of the Land Tenure
Pampanga said: Administration.
Plaintiff has agreed, as a matter of fact has We find that the lower court acted correctly when it denied the
already signed an agreement with motions for a new trial.
defendants, whereby she had agreed to
receive the rent of the lands, subject matter
To warrant the granting of a new trial based on the ground of
of the instant case from June 30, 1956 up to
newly discovered evidence, it must appear that the evidence was
1959 when the Philippine Air Force was
discovered after the trial; that even with the exercise of due
placed in possession by virtue of an order of
diligence, the evidence could not have been discovered and
the Court upon depositing the provisional
produced at the trial; and that the evidence is of such a nature as
amount as fixed by the Provincial Appraisal
to alter the result of the case if admitted. 32 The lower court
Committee with the Provincial Treasurer of 
correctly ruled that these requisites were not complied with.
Pampanga; ...
The lower court, in a well-reasoned order, found that the sales
If Castellvi had agreed to receive the rentals from June 30, 1956 to
made by Serafin Francisco to Pablo Narciso and that made by
August 10, 1959, she should be considered as having allowed her
Jesus Toledo to the Land Tenure Administration were immaterial
land to be leased to the Republic until August 10, 1959, and she
and irrelevant, because those sales covered sugarlands with sugar
could not at the same time be entitled to the payment of interest
quotas, while the lands sought to be expropriated in the instant
during the same period on the amount awarded her as the just
case are residential lands. The lower court also concluded that the
compensation of her land. The Republic, therefore, should pay
land sold by the spouses Laird to the spouses Aguas was a sugar
Castellvi interest at the rate of 6% per annum on the value of her
land.
land, minus the provisional value that was deposited, only from
July 10, 1959 when it deposited in court the provisional value of
We agree with the trial court. In eminent domain proceedings, in
the land.
order that evidence as to the sale price of other lands may be
admitted in evidence to prove the fair market value of the land
4. The fourth error assigned by the Republic relates to the denial
sought to be expropriated, the lands must, among other things,
by the lower court of its motion for a new trial based on nearly
be shown to be similar.
discovered evidence. We do not find merit in this assignment of
error.
But even assuming, gratia argumenti, that the lands mentioned in
those deeds of sale were residential, the evidence would still not
After the lower court had decided this case on May 26, 1961, the
warrant the grant of a new trial, for said evidence could have
Republic filed a motion for a new trial, supplemented by another
been discovered and produced at the trial, and they cannot be
motion, both based upon the ground of newly discovered
considered newly discovered evidence as contemplated in Section
evidence. The alleged newly discovered evidence in the motion
1(b) of Rule 37 of the Rules of Court. Regarding this point, the trial
filed on June 21, 1961 was a deed of absolute sale-executed on
court said:
January 25, 1961, showing that a certain Serafin Francisco had
sold to Pablo L. Narciso a parcel of sugar land having an area of
The Court will now show that there was no
100,000 square meters with a sugar quota of 100 piculs, covered
reasonable diligence employed.
by P.A. No. 1701, situated in Barrio Fortuna, Floridablanca, for
P14,000, or P.14 per square meter.
70
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
The land described in the deed of sale
executed by Serafin Francisco, copy of
which is attached to the original motion, is
covered by a Certificate of Title issued by
the Office of the Register of Deeds of
Pampanga. There is no question in the mind
of the court but this document passed
through the Office of the Register of Deeds
for the purpose of transferring the title or
annotating the sale on the certificate of
title. It is true that Fiscal Lagman went to
the Office of the Register of Deeds to check
conveyances which may be presented in the
evidence in this case as it is now sought to
be done by virtue of the motions at bar,
Fiscal Lagman, one of the lawyers of the
plaintiff, did not exercise reasonable
diligence as required by the rules. The
assertion that he only went to the office of
the Register of Deeds 'now and then' to
check the records in that office only shows
the half-hazard [sic] manner by which the
plaintiff looked for evidence to be
presented during the hearing before the
Commissioners, if it is at all true that Fiscal
Lagman did what he is supposed to have
done according to Solicitor Padua. It would
have been the easiest matter for plaintiff to
move for the issuance of a subpoena duces
tecum directing the Register of Deeds of
Pampanga to come to testify and to bring
with him all documents found in his office
pertaining to sales of land in Floridablanca
adjacent to or near the lands in question
executed or recorded from 1958 to the
present. Even this elementary precaution
was not done by plaintiff's numerous
attorneys.
The same can be said of the deeds of sale
attached to the supplementary motion.
They refer to lands covered by certificate of
title issued by the Register of Deeds of
Pampanga. For the same reason they could
have been easily discovered if reasonable
diligence has been exerted by the
numerous lawyers of the plaintiff in this
case. It is noteworthy that all these deeds of
sale could be found in several government
offices, namely, in the Office of the Register
of Deeds of Pampanga, the Office of the
Provincial Assessor of Pampanga, the Office
of the Clerk of Court as a part of notarial
reports of notaries public that
acknowledged these documents, or in the
archives of the National Library. In respect
to Annex 'B' of the supplementary motion
copy of the document could also be found
in the Office of the Land Tenure
Administration, another government entity.
Any lawyer with a modicum of ability
handling this expropriation case would have
right away though [sic] of digging up
documents diligently showing conveyances
of lands near or around the parcels of land
sought to be expropriated in this case in the
offices that would have naturally come to
his mind such as the offices mentioned
above, and had counsel for the movant
really exercised the reasonable diligence
required by the Rule' undoubtedly they
would have been able to find these
documents and/or caused the issuance of
subpoena duces tecum. ...
It is also recalled that during the hearing
before the Court of the Report and
Recommendation of the Commissioners
and objection thereto, Solicitor Padua made
the observation:
I understand, Your Honor, that there was a
sale that took place in this place of land
recently where the land was sold for P0.20
which is contiguous to this land.
The Court gave him permission to submit
said document subject to the approval of
the Court. ... This was before the decision
was rendered, and later promulgated on
May 26, 1961 or more than one month after
Solicitor Padua made the above
observation. He could have, therefore,
checked up the alleged sale and moved for
a reopening to adduce further evidence. He
did not do so. He forgot to present the
evidence at a more propitious time. Now,
he seeks to introduce said evidence under
the guise of newly-discovered evidence.
Unfortunately the Court cannot classify it as
newly-discovered evidence, because tinder
the circumstances, the correct qualification
that can be given is 'forgotten evidence'.
Forgotten however, is not newly-
discovered 
evidence. 33
TROPANG POTCHI
The granting or denial of a motion for new trial is, as a general
rule, discretionary with the trial court, whose judgment should
not be disturbed unless there is a clear showing of abuse of
discretion. 34 We do not see any abuse of discretion on the part of
the lower court when it denied the motions for a new trial.
WHEREFORE, the decision appealed from is modified, as follows:
(a) the lands of appellees Carmen Vda. de
Castellvi and Maria Nieves Toledo-Gozun, as
described in the complaint, are declared
expropriated for public use;
(b) the fair market value of the lands of the
appellees is fixed at P5.00 per square
meter;
(c) the Republic must pay appellee Castellvi
the sum of P3,796,495.00 as just
compensation for her one parcel of land
that has an area of 759,299 square meters,
minus the sum of P151,859.80 that she
withdrew out of the amount that was
deposited in court as the provisional value
of the land, with interest at the rate of 6%
per annum from July 10, 1959 until the day
full payment is made or deposited in court;
(d) the Republic must pay appellee Toledo-
Gozun the sum of P2,695,225.00 as the just
compensation for her two parcels of land
that have a total area of 539,045 square
meters, minus the sum of P107,809.00 that
she withdrew out of the amount that was
deposited in court as the provisional value
of her lands, with interest at the rate of 6%,
per annum from July 10, 1959 until the day
full payment is made or deposited in court;
(e) the attorney's lien of Atty. Alberto
Cacnio is enforced; and
(f) the costs should be paid by appellant
Republic of the Philippines, as provided in
Section 12, Rule 67, and in Section 13, Rule
141, of the Rules of Court.
IT IS SO ORDERED.
71
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
G.R. No. L-26400, Amigable v. Cuenca and Republic, 43 SCRA 360
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
DECISION
February 29, 1972
G.R. No. L-26400
VICTORIA AMIGABLE, plaintiff-appellant,
vs.
NICOLAS CUENCA, as Commissioner of Public Highways and
REPUBLIC OF THE PHILIPPINES, defendants-appellees.
MAKALINTAL, J.:p
Makalintal, J.:
p was a failure to abide by what the law requires, the government
This is an appeal from the decision of the Court of First Instance of
Cebu in its Civil Case No. R-5977, dismissing the plaintiff's
complaint.
Victoria Amigable, the appellant herein, is the registered owner of
Lot No. 639 of the Banilad Estate in Cebu City as shown by
Transfer Certificate of Title No. T-18060, which superseded
Transfer Certificate of Title No. RT-3272 (T-3435) issued to her by
the Register of Deeds of Cebu on February 1, 1924. No annotation
in favor of the government of any right or interest in the property
appears at the back of the certificate. Without prior expropriation
or negotiated sale, the government used a portion of said lot, with
an area of 6,167 square meters, for the construction of the Mango
and Gorordo Avenues.
It appears that said avenues were already existing in 1921
although "they were in bad condition and very narrow, unlike the
wide and beautiful avenues that they are now," and "that the
tracing of said roads was begun in 1924, and the formal
construction in
1925." *
On March 27, 1958 Amigable's counsel wrote the President of the
Philippines, requesting payment of the portion of her lot which
had been appropriated by the government. The claim was
indorsed to the Auditor General, who disallowed it in his 9th
Indorsement dated December 9, 1958. A copy of said
indorsement was transmitted to Amigable's counsel by the Office
of the President on January 7, 1959.
On February 6, 1959 Amigable filed in the court a quo a
complaint, which was later amended on April 17, 1959 upon
motion of the defendants, against the Republic of the Philippines
and Nicolas Cuenca, in his capacity as Commissioner of Public
Highways for the recovery of ownership and possession of the
6,167 square meters of land traversed by the Mango and Gorordo
Avenues. She also sought the payment of compensatory damages
in the sum of P50,000.00 for the illegal occupation of her land,
moral damages in the sum of P25,000.00, attorney's fees in the
sum of P5,000.00 and the costs of the suit.
Within the reglementary period the defendants filed a joint
answer denying the material allegations of the complaint and
interposing the following affirmative defenses, to wit: (1) that the
action was premature, the claim not having been filed first with
the Office of the Auditor General; (2) that the right of action for
the recovery of any amount which might be due the plaintiff, if
any, had already prescribed; (3) that the action being a suit
against the Government, the claim for moral damages, attorney's
fees and costs had no valid basis since as to these items the
Government had not given its consent to be sued; and (4) that
inasmuch as it was the province of Cebu that appropriated and
used the area involved in the construction of Mango Avenue,
plaintiff had no cause of action against the defendants.
During the scheduled hearings nobody appeared for the
defendants notwithstanding due notice, so the trial court
proceeded to receive the plaintiff's evidence ex parte. On July 29,
1959 said court rendered its decision holding that it had no
jurisdiction over the plaintiff's cause of action for the recovery of
possession and ownership of the portion of her lot in question on
the ground that the government cannot be sued without its
consent; that it had neither original nor appellate jurisdiction to
hear, try and decide plaintiff's claim for compensatory damages in
the sum of P50,000.00, the same being a money claim against the
government; and that the claim for moral damages had long
prescribed, nor did it have jurisdiction over said claim because the
government had not given its consent to be sued. Accordingly, the
complaint was dismissed. Unable to secure a reconsideration, the
plaintiff appealed to the Court of Appeals, which subsequently
certified the case to Us, there being no question of fact involved.
The issue here is whether or not the appellant may properly sue
the government under the facts of the case.
TROPANG POTCHI
In the case of Ministerio vs. Court of First Instance of Cebu, 1
involving a claim for payment of the value of a portion of land
used for the widening of the Gorordo Avenue in Cebu City, this
Court, through Mr. Justice Enrique M. Fernando, held that where
the government takes away property from a private landowner
for public use without going through the legal process of
expropriation or negotiated sale, the aggrieved party may
properly maintain a suit against the government without thereby
violating the doctrine of governmental immunity from suit
without its consent. We there said: .
... . If the constitutional mandate that the owner be compensated
for property taken for public use were to be respected, as it
should, then a suit of this character should not be summarily
dismissed. The doctrine of governmental immunity from suit
cannot serve as an instrument for perpetrating an injustice on a
citizen. Had the government followed the procedure indicated by
the governing law at the time, a complaint would have been filed
by it, and only upon payment of the compensation fixed by the
judgment, or after tender to the party entitled to such payment of
the amount fixed, may it "have the right to enter in and upon the
land so condemned, to appropriate the same to the public use
defined in the judgment." If there were an observance of
procedural regularity, petitioners would not be in the sad plaint
they are now. It is unthinkable then that precisely because there
would stand to benefit. It is just as important, if not more so, that
there be fidelity to legal norms on the part of officialdom if the
rule of law were to be maintained. It is not too much to say that
when the government takes any property for public use, which is
conditioned upon the payment of just compensation, to be
judicially ascertained, it makes manifest that it submits to the
jurisdiction of a court. There is no thought then that the doctrine
of immunity from suit could still be appropriately invoked.
Considering that no annotation in favor of the government
appears at the back of her certificate of title and that she has not
executed any deed of conveyance of any portion of her lot to the
government, the appellant remains the owner of the whole lot. As
registered owner, she could bring an action to recover possession
of the portion of land in question at anytime because possession
is one of the attributes of ownership. However, since restoration
of possession of said portion by the government is neither
convenient nor feasible at this time because it is now and has
been used for road purposes, the only relief available is for the
government to make due compensation which it could and should
have done years ago. To determine the due compensation for the
land, the basis should be the price or value thereof at the time of
the taking. 2
As regards the claim for damages, the plaintiff is entitled thereto
in the form of legal interest on the price of the land from the time
it was taken up to the time that payment is made by the
72
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
government. 3 In addition, the government should pay for
attorney's fees, the amount of which should be fixed by the trial
court after hearing.
WHEREFORE, the decision appealed from is hereby set aside and
the case remanded to the court a quo for the determination of
compensation, including attorney's fees, to which the appellant is
entitled as above indicated. No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Zaldivar, Castro, Fernando,
Teehankee, Barredo, Villamor and Makasiar JJ., concur.
G.R. No. L-119694 May 22, 1995
PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of 139
members, represented by its President, Amado P. Macasaet and
its Executive Director Ermin F. Garcia, Jr., petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
 
FELICIANO, J.:
The Philippine Press Institute, Inc. ("PPI") is before this Court
assailing the constitutional validity of Resolution No. 2772 issued
by respondent Commission on Elections ("Comelec") and its
corresponding Comelec directive dated 22 March 1995, through a
Petition for Certiorari and Prohibition. Petitioner PPI is a non-
stock, non-profit organization of newspaper and magazine
publishers.
On 2 March 1995, Comelec promulgated Resolution No. 2772,
which reads in part:
xxxxxxxxx
Sec. 2.Comelec Space. — The Commission shall procure free print
space of not less than one half (1/2) page in at least one
newspaper of general circulation in every province or city for use
as "Comelec Space" from March 6, 1995 in the case of candidates
for senator and from March 21, 1995 until May 12, 1995. In the
absence of said newspaper, "Comelec Space" shall be obtained
from any magazine or periodical of said province or city.
Sec. 3.Uses of Comelec Space. — "Comelec Space" shall be
allocated by the Commission, free of charge, among all
candidates within the area in which the newspaper, magazine or
periodical is circulated to enable the candidates to make known
their qualifications, their stand on public issues and their
platforms and programs of government.
"Comelec Space" shall also be used by the Commission for
dissemination of vital election information.
Sec. 4.Allocation of Comelec Space. — (a) "Comelec Space" shall
also be available to allcandidates during the periods stated in
Section 2 hereof. Its allocation shall be equal and impartial among
all candidates for the same office. All candidates concerned shall
be furnished a copy of the allocation of "Comelec Space" for their
information, guidance and compliance.
(b) Any candidate desiring to avail himself of "Comelec Space"
from newspapers or publications based in the Metropolitan
Manila Area shall submit an application therefor, in writing, to the
Committee on Mass Media of the Commission. Any candidate
desiring to avail himself of "Comelec Space" in newspapers or
publications based in the provinces shall submit his application
therefor, in writing, to the Provincial Election Supervisor
concerned. Applications for availment of "Comelec Space" maybe
filed at any time from the date of effectivity of this Resolution.
(c) The Committee on Mass Media and the Provincial Election
Supervisors shall allocate available "Comelec Space" among the
candidates concerned by lottery of which said candidates shall be
notified in advance, in writing, to be present personally or by
representative to witness the lottery at the date, time and place
specified in the notice. Any party objecting to the result of the
lottery may appeal to the Commission.
(d) The candidates concerned shall be notified by the Committee
on Mass Media or the Provincial Election Supervisor, as the case
maybe, sufficiently in advance and in writing of the date of issue
and the newspaper or publication allocated to him, and the time
within which he must submit the written material for publication
in the "Comelec Space".
xxxxxxxxx
Sec. 8.Undue Reference to Candidates/Political Parties in
Newspapers. — No newspaper or publication shall allow to be
printed or published in the news, opinion, features, or other
sections of the newspaper or publication accounts or comments
which manifestly favor or oppose any candidate or political party
by unduly or repeatedly referring to or including therein said
candidate or political party. However, unless the facts and
TROPANG POTCHI
circumstances clearly indicate otherwise, the Commission will
respect the determination by the publisher and/or editors of the
newspapers or publications that the accounts or views published
are significant, newsworthy and of public interest. (Emphasis
supplied)
Apparently in implementation of this Resolution, Comelec
through Commissioner Regalado E. Maambong sent identical
letters, dated 22 March 1995, to various publishers of newspapers
like the Business World, the Philippine Star, the Malaya and the
Philippine Times Journal, all members of PPI. These letters read as
follows:
This is to advise you that pursuant to Resolution No. 2772 of the
Commission on Elections, you are directed to provide free print
space of not less than one half (1/2) page for use as "Comelec
Space" or similar to the print support which you have extended
during the May 11, 1992 synchronized elections which was 2 full
pages for each political party fielding senatorial candidates, from
March 6, 1995 to May 6, 1995, to make known their
qualifications, their stand on public issues and their platforms and
programs of government.
We shall be informing the political partiesand candidates to
submit directly to you their pictures, biographical data, stand on
key public issues and platforms of government either as raw data
or in the form of positives or camera-ready materials.
Please be reminded that the political parties/candidates may be
accommodated in your publication any day upon receipt of their
materials until May 6, 1995 which is the last day for campaigning.
We trust you to extend your full support and cooperation in this
regard. (Emphasis supplied)
In this Petition for Certiorari and Prohibition with prayer for the
issuance of a Temporary Restraining Order, PPI asks us to declare
Comelec Resolution No. 2772 unconstitutional and void on the
ground that it violates the prohibition imposed by the
Constitution upon the government, and any of its agencies,
against the taking of private property for public use without just
compensation. Petitioner also contends that the 22 March 1995
letter directives of Comelec requiring publishers to give free
"Comelec Space" and at the same time process raw data to make
it camera-ready, constitute impositions of involuntary servitude,
contrary to the provisions of Section 18 (2), Article III of the 1987
Constitution. Finally, PPI argues that Section 8 of Comelec
Resolution No. 2772 is violative of the constitutionally guaranteed
freedom of speech, of the press and of expression. 1
73
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
On 20 April 1995, this Court issued a Temporary Restraining Order
enjoining Comelec from enforcing and implementing Section 2 of
Resolution No. 2772, as well as the Comelec directives addressed
to various print media enterprises all dated 22 March 1995. The
Court also required the respondent to file a Comment on the
Petition.
The Office of the Solicitor General filed its Comment on behalf of
respondent Comelec alleging that Comelec Resolution No. 2772
does not impose upon the publishers any obligation to provide
free print space in the newspapers as it does not provide any
criminal or administrative sanction for non-compliance with that
Resolution. According to the Solicitor General, the questioned
Resolution merely established guidelines to be followed in
connection with the procurement of "Comelec space," the
procedure for and mode of allocation of such space to candidates
and the conditions or requirements for the candidate's utilization
of the "Comelec space" procured. At the same time, however, the
Solicitor General argues that even if the questioned Resolution
and its implementing letter directives are viewed as mandatory,
the same would nevertheless be valid as an exercise of the police
power of the State. The Solicitor General also maintains that
Section 8 of Resolution No. 2772 is a permissible exercise of the
power of supervision or regulation of the Comelec over the
communication and information operations of print media
enterprises during the election period to safeguard and ensure a
fair, impartial and credible election. 2
At the oral hearing of this case held on 28 April 1995, respondent
Comelec through its Chairman, Hon. Bernardo Pardo, in response
to inquiries from the Chief Justice and other Members of the
Court, stated that Resolution No. 2772, particularly Section 2
thereof and the 22 March 1995 letters dispatched to various
members of petitioner PPI, were not intended to compel those
members to supply Comelec with free print space. Chairman
Pardo represented to the Court that Resolution and the related
letter-directives were merely designed to solicit from the
publishers the same free print space which many publishers had
voluntarily given to Comelec during the election period relating to
the 11 May 1992 elections. Indeed, the Chairman stated that the
Comelec would, that very afternoon, meet and adopt an
appropriate amending or clarifying resolution, a certified true
copy of which would forthwith be filed with the Court.
On 5 May 1995, the Court received from the Office of the Solicitor
General a manifestation which attached a copy of Comelec
Resolution No. 2772-A dated 4 May 1995. The operative portion
of this Resolution follows:
NOW THEREFORE, pursuant to the powers vested in it by the
Constitution, the Omnibus Election Code, Republic Acts No. 6646
and 7166 and other election laws, the Commission on Elections
RESOLVED to clarify Sections 2 and 8 of Res. No. 2772 as follows:
1. Section 2 of Res. No. 2772 shall not be construed to mean as
requiring publishers of the different mass media print publications
to provide print space under pain of prosecution, whether
administrative, civil or criminal, there being no sanction or penalty
for violation of said Section provided for either in said Resolution
or in Section 90 of Batas PambansaBlg. 881, otherwise known as
the Omnibus Election Code, on the grant of "Comelec space."
2. Section 8 of Res. No. 2772 shall not be construed to mean as
constituting prior restraint on the part of publishers with respect
to the printing or publication of materials in the news, opinion,
features or other sections of their respective publications or other
accounts or comments, it being clear from the last sentence of
said Section 8 that the Commission shall, "unless the facts and
circumstances clearly indicate otherwise . . . respect the
determination by the publisher and/or editors of the newspapers
or publications that the accounts or views published are
significant, newsworthy and of public interest."
This Resolution shall take effect upon approval. (Emphasis in the
original)
While, at this point, the Court could perhaps simply dismiss the
Petition for Certiorari and Prohibition as having become moot and
academic, we consider it not inappropriate to pass upon the first
constitutional issue raised in this case. Our hope is to put this
issue to rest and prevent its resurrection.
Section 2 of Resolution No. 2772 is not a model of clarity in
expression. Section 1 of Resolution No. 2772-A did not try to
redraft Section 2; accordingly, Section 2 of Resolution No. 2772
persists in its original form. Thus, we must point out that, as
presently worded, and in particular as interpreted and applied by
the Comelec itself in its 22 March 1995 letter-directives to
newspaper publishers, Section 2 of Resolution No. 2772 is clearly
susceptible of the reading that petitioner PPI has given it. That
Resolution No. 2772 does not, in express terms, threaten
publishers who would disregard it or its implementing letters with
some criminal or other sanction, does not by itself demonstrate
that the Comelec's original intention was simply to solicit or
request voluntary donations of print space from publishers. A
written communication officially directing a print media company
to supply free print space, dispatched by a government (here a
constitutional) agency and signed by a member of the
Commission presumably legally authorized to do so, is bound to
produce a coercive effect upon the company so addressed. That
the agency may not be legally authorized to impose, or cause the
imposition of, criminal or other sanctions for disregard of such
directions, only aggravates the constitutional difficulties inhearing
TROPANG POTCHI
in the present situation. The enactment or addition of such
sanctions by the legislative authority itself would be open to
serious constitutional objection.
To compel print media companies to donate "Comelec-space" of
the dimensions specified in Section 2 of Resolution No. 2772 (not
less than one-half page), amounts to "taking" of private personal
property for public use or purposes. Section 2 failed to specify the
intended frequency of such compulsory "donation:" only once
during the period from 6 March 1995 (or 21 March 1995) until 12
May 1995? oreveryday or once a week? or as often as Comelec
may direct during the same period? The extent of the taking or
deprivation is not insubstantial; this is not a case of a de minimis
temporary limitation or restraint upon the use of private
property. The monetary value of the compulsory "donation,"
measured by the advertising rates ordinarily charged by
newspaper publishers whether in cities or in non-urban areas,
may be very substantial indeed.
The taking of print space here sought to be effected may first be
appraised under the rubric of expropriation of private personal
property for public use. The threshold requisites for a lawful
taking of private property for public use need to be examined
here: one is the necessity for the taking; another is the legal
authority to effect the taking. The element of necessity for the
taking has not been shown by respondent Comelec. It has not
been suggested that the members of PPI are unwilling to sell print
space at their normal rates to Comelec for election purposes.
Indeed, the unwillingness or reluctance of Comelecto buy print
space lies at the heart of the problem. 3Similarly, it has not been
suggested, let alone demonstrated, that Comelec has been
granted the power of eminent domain either by the Constitution
or by the legislative authority. A reasonable relationship between
that power and the enforcement and administration of election
laws by Comelec must be shown; it is not casually to be assumed.
That the taking is designed to subserve "public use" is not
contested by petitioner PPI. We note only that, under Section 3 of
Resolution No. 2772, the free "Comelec space" sought by the
respondent Commission would be used not only for informing the
public about the identities, qualifications and programs of
government of candidates for elective office but also for
"dissemination of vital election information" (including,
presumably, circulars, regulations, notices, directives, etc. issued
by Comelec). It seems to the Court a matter of judicial notice that
government offices and agencies (including the Supreme Court)
simply purchase print space, in the ordinary course of events,
when their rules and regulations, circulars, notices and so forth
need officially to be brought to the attention of the general public.
The taking of private property for public use is, of course,
authorized by the Constitution, but not without payment of "just
74
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
compensation" (Article III, Section 9). And apparently the
necessity of paying compensation for "Comelec space" is precisely
what is sought to be avoided by respondent Commission, whether
Section 2 of Resolution No. 2772 is read as petitioner PPI reads it,
as an assertion of authority to require newspaper publishers to
"donate" free print space for Comelec purposes, or as an
exhortation, or perhaps an appeal, to publishers to donate free
print space, as Section 1 of Resolution No. 2772-A attempts to
suggest. There is nothing at all to prevent newspaper and
magazine publishers from voluntarily giving free print space to
Comelec for the purposes contemplated in Resolution No. 2772.
Section 2 of Resolution No. 2772 does not, however, provide a
constitutional basis for compelling publishers, against their will, in
the kind of factual context here present, to provide free print
space for Comelec purposes. Section 2 does not constitute a valid
exercise of the power of eminent domain.
We would note that the ruling here laid down by the Court is
entirely in line with the theory of democratic representative
government. The economic costs of informing the general public
about the qualifications and programs of those seeking elective
office are most appropriately distributed as widely as possible
throughout our society by the utilization of public funds,
especially funds raised by taxation, rather than cast solely on one
small sector of society, i.e., print media enterprises. The benefits
which flow from a heightened level of information on and the
awareness of the electoral process are commonly thought to be
community-wide; the burdens should be allocated on the same
basis.
As earlier noted, the Solicitor General also contended that Section
2 of Resolution No. 2772, even if read as compelling publishers to
"donate" "Comelec space, " may be sustained as a valid exercise
of the police power of the state. This argument was, however,
made too casually to require prolonged consideration on our part.
Firstly, there was no effort (and apparently no inclination on the
part of Comelec) to show that the police power — essentially a
power of legislation — has been constitutionally delegated to
respondent Commission. 4 Secondly, while private property may
indeed be validly taken in the legitimate exercise of the police
power of the state, there was no attempt to show compliance in
the instant case with the requisites of a lawful taking under the
police power. 5
Section 2 of Resolution No. 2772 is a blunt and heavy instrument
that purports, without a showing of existence of a national
emergency or other imperious public necessity, indiscriminately
and without regard to the individual business condition of
particular newspapers or magazines located in differing parts of
the country, to take private property of newspaper or magazine
publishers. No attempt was made to demonstrate that a real and
palpable or urgent necessity for the taking of print space
confronted the Comelec and that Section 2 of Resolution No. 2772
was itself the only reasonable and calibrated response to such
necessity available to the Comelec. Section 2 does not constitute
a valid exercise of the police power of the State.
We turn to Section 8 of Resolution No. 2772, which needs to be
quoted in full again:
Sec. 8.Undue Reference to Candidates/Political Parties in
Newspapers. — No newspaper or publication shall allow to be
printed or published in the news, opinion, features, or other
sections of the newspaper or publication accounts or comments
which manifestly favor or oppose any candidate or political party
by unduly or repeatedly referring to or including therein said
candidate or political party. However, unless the facts and
circumstances clearly indicate otherwise, the Commission will
respect the determination by the publisher and/or editors of the
newspapers or publications that the accounts or views published
are significant, newsworthy and of public interest.
It is not easy to understand why Section 8 was included at all in
Resolution No. 2772. In any case, Section 8 should be viewed in
the context of our decision in National Press Club v. Commission
on Elections. 6 There the Court sustained the constitutionality of
Section 11 (b) of R.A. No. 6646, known as the Electoral Reforms
Law of 1987, which prohibits the sale or donation of print space
and airtime for campaign or other political purposes, except to
the Comelec. In doing so, the Court carefully distinguished (a)
paid political advertisements which are reached by the prohibition
of Section 11 (b), from (b) the reporting of news, commentaries
and expressions of belief or opinion by reporters, broadcasters,
editors, commentators or columnists which fall outside the scope
of Section 11 (b) and which are protected by the constitutional
guarantees of freedom of speech and of the press:
Secondly, and more importantly, Section 11 (b) is limited in its
scope of application. Analysis of Section 11 (b) shows that it
purports to apply only to the purchase and sale, including
purchase and sale disguised as a donation, of print space and air
time for campaign or other political purposes. Section 11 (b) does
not purport in any way to restrict the reporting by newspapers or
radio or television stations of news or news-worthy events
relating to candidates, their qualifications, political parties and
programs of government. Moreover, Section 11 (b) does not reach
commentaries and expressions of belief or opinion by reporters or
broadcaster or editors or commentators or columnists in respect
of candidates, their qualifications, and programs and so forth, so
long at least as such comments, opinions and beliefs are not in
fact advertisements for particular candidates covertly paid for. In
sum, Section 11 (b) is not to be read as reaching any report or
commentary or other coverage that, in responsible media, is not
paid for by candidates for political office. We read Section 11 (b)
TROPANG POTCHI
as designed to cover only paid political advertisements of
particular candidates.
The above limitation in scope of application of Section 11 (b) —
that it does not restrict either the reporting of or the expression
of belief or opinion or comment upon the qualifications and
programs and activities of any and all candidates for office —
constitutes the critical distinction which must be made between
the instant case and that of Sanidad v. Commission on Elections. . .
. 7 (Citations omitted; emphasis supplied)
Section 8 of Resolution No. 2772 appears to represent the effort
of the Comelec to establish a guideline for implementation of the
above-quoted distinction and doctrine in National Press Club an
effort not blessed with evident success. Section 2 of Resolution
No. 2772-A while possibly helpful, does not add substantially to
the utility of Section 8 of Resolution No. 2772. The distinction
between paid political advertisements on the one hand and news
reports, commentaries and expressions of belief or opinion by
reporters, broadcasters, editors, etc. on the other hand, can
realistically be given operative meaning only in actual cases or
controversies, on a case-to-case basis, in terms of very specific
sets of facts.
At all events, the Court is bound to note that PPI has failed to
allege any specific affirmative action on the part of Comelec
designed to enforce or implement Section 8. PPI has not claimed
that it or any of its members has sustained actual or imminent
injury by reason of Comelec action under Section 8. Put a little
differently, the Court considers that the precise constitutional
issue here sought to be raised — whether or not Section 8 of
Resolution No. 2772 constitutes a permissible exercise of the
Comelec's power under Article IX, Section 4 of the Constitution to
supervise or regulate the enjoyment or utilization of all franchise
or permits for the operation of — media of communication or
information — [for the purpose of ensuring] equal opportunity,
time and space, and the right of reply, including reasonable, equal
rates therefore, for public information campaigns and forums
among candidates in connection with the objective of holding
free, orderly honest, peaceful and credible elections —
is not ripe for judicial review for lack of an actual case or
controversy involving, as the very lismotathereof, the
constitutionality of Section 8.
Summarizing our conclusions:
1. Section 2 of Resolution No. 2772, in its present form and as
interpreted by Comelec in its 22 March 1995 letter directives,
purports to require print media enterprises to "donate" free print
75
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

space to Comelec. As such, Section 2 suffers from a fatal
constitutional vice and must be set aside and nullified.
2. To the extent it pertains to Section 8 of Resolution No. 2772,
the Petition for Certiorari and Prohibition must be dismissed for
lack of an actual, justiciable case or controversy.
WHEREFORE, for all the foregoing, the Petition for Certiorari and
Prohibition is GRANTED in part and Section 2 of Resolution No.
2772 in its present form and the related letter-directives dated 22
March 1995 are hereby SET ASIDE as null and void, and the
Temporary Restraining Order is hereby MADE PERMANENT. The
Petition is DISMISSED in part, to the extent it relates to Section 8
of Resolution No. 2772. No pronouncement as to costs.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.
Together with the complaint was a motion for immediate c) The Decree violates procedural due process as it allows
possession of the properties. The NHA deposited the amount of immediate taking of possession, control and disposition of
P158,980.00 with the Philippine National Bank, representing the property without giving the owner his day in court;
"total market value" of the subject twenty five hectares of land,
pursuant to Presidential Decree No. 1224 which defines "the policy
d) The Decree would allow the taking of private property upon
on the expropriation of private property for socialized housing
payment of unjust and unfair valuations arbitrarily fixed by
upon payment of just compensation."
government assessors;
On January 17, 1978, respondent Judge issued the following
e) The Decree would deprive the courts of their judicial discretion
Order:
to determine what would be the "just compensation" in each and
every raise of expropriation.
Plaintiff having deposited with the Philippine National Bank, Heart
Center Extension Office, Diliman, Quezon City, Metro Manila, the
Indeed, the exercise of the power of eminent domain is subject to
amount of P158,980.00 representing the total market value of the
certain limitations imposed by the constitution, to wit:
subject parcels of land, let a writ of possession be issued.
Private property shall not be taken for public use without just
SO ORDERED.
compensation (Art. IV, Sec. 9);

Quiason, J., is on leave. Pasig, Metro Manila, January 17, 1978.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-48685 September 30, 1987
LORENZO SUMULONG and EMILIA VIDANES-BALAOING,
petitioners,
vs.
HON. BUENAVENTURA GUERRERO and NATIONAL HOUSING
AUTHORITY, respondents.
 
CORTES, J.:
On December 5, 1977 the National Housing Authority (NIIA) filed a
complaint for expropriation of parcels of land covering
approximately twenty five (25) hectares, (in Antipolo, Rizal)
including the lots of petitioners Lorenzo Sumulong and Emilia
Vidanes-Balaoing with an area of 6,667 square meters and 3,333
square meters respectively. The land sought to be expropriated
were valued by the NHA at one peso (P1.00) per square meter
adopting the market value fixed by the provincial assessor in
accordance with presidential decrees prescribing the valuation of
property in expropriation proceedings.
(SGD) BUENAVENTURA S. GUERRERO
Judge
Petitioners filed a motion for reconsideration on the ground that
they had been deprived of the possession of their property
without due process of law. This was however, denied.
Hence, this petition challenging the orders of respondent Judge
and assailing the constitutionality of Pres. Decree No. 1224, as
amended. Petitioners argue that:
1) Respondent Judge acted without or in excess of his jurisdiction
or with grave abuse of discretion by issuing the Order of January
17, 1978 without notice and without hearing and in issuing the
Order dated June 28, 1978 denying the motion for
reconsideration.
2) Pres. Decree l224, as amended, is unconstitutional for being
violative of the due process clause, specifically:
a) The Decree would allow the taking of property regardless of
size and no matter how small the area to be expropriated;
b) "Socialized housing" for the purpose of condemnation
proceeding, as defined in said Decree, is not really for a public
purpose;
No person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the equal
protection of the laws (Art. IV, sec. 1).
Nevertheless, a clear case of constitutional infirmity has to be
established for this Court to nullify legislative or executive
measures adopted to implement specific constitutional provisions
aimed at promoting the general welfare.
Petitioners' objections to the taking of their property subsumed
under the headings of public use, just compensation, and due
process have to be balanced against competing interests of the
public recognized and sought to be served under declared policies
of the constitution as implemented by legislation.
1. Public use
a) Socialized Housing
Petitioners contend that "socialized housing" as defined in Pres.
Decree No. 1224, as amended, for the purpose of condemnation
proceedings is not "public use" since it will benefit only "a handful
of people, bereft of public character."
"Socialized housing" is defined as, "the construction of dwelling
units for the middle and lower class members of our society,
including the construction of the supporting infrastructure and
other facilities" (Pres. Decree No. 1224, par. 1). This definition was
later expanded to include among others:

76
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
a) The construction and/or improvement of dwelling units for the
middle and lower income groups of the society, including the
construction of the supporting infrastructure and other facilities;
b) Slum clearance, relocation and resettlement of squatters and
slum dwellers as well as the provision of related facilities and
services;
c) Slum improvement which consists basically of allocating
homelots to the dwellers in the area or property involved,
rearrangemeant and re-alignment of existing houses and other
dwelling structures and the construction and provision of basic
community facilities and services, where there are none, such as
roads, footpaths, drainage, sewerage, water and power system
schools, barangay centers, community centers, clinics, open
spaces, parks, playgrounds and other recreational facilities;
d) The provision of economic opportunities, including the
development of commercial and industrial estates and such other
facilities to enhance the total community growth; and
e) Such other activities undertaken in pursuance of the objective
to provide and maintain housing for the greatest number of
people under Presidential Decree No, 757, (Pres. Decree No. 1259,
sec. 1)
The "public use" requirement for a and exercise of the power of
eminent domain is a flexible and evolving concept influenced by
changing conditions. In this jurisdiction, the statutory and judicial
trend has been summarized as follows:
The taking to be valid must be for public use. There was a time
when it was felt that a literal meaning should be attached to such
a requirement. Whatever project is undertaken must be for the
public to enjoy, as in the case of streets or parks. Otherwise,
expropriation is not allowable. It is not anymore. As long as the
purpose of the taking is public, then the power of eminent domain
comes into play. As just noted, the constitution in at least two
cases, to remove any doubt, determines what is public use. One is
the expropriation of lands to be subdivided into small lots for
resale at cost to individuals. The other is in the transfer, through
the exercise of this power, of utilities and other private enterprise
to the government. It is accurate to state then that at present
whatever may be beneficially employed for the general welfare
satisfies the requirement of public use [Heirs of JuanchoArdona v.
Reyes, G.R. Nos. 60549, 60553-60555 October 26, 1983, 125 SCRA
220 (1983) at 234-5 quoting E. FERNANDO, THE CONSTITUTION
OF THE PHILIPPINES 523-4, (2nd ed., 1977) Emphasis supplied].
The term "public use" has acquired a more comprehensive
coverage. To the literal import of the term signifying strict use or
employment by the public has been added the broader notion of
indirect public benefit or advantage. As discussed in the above
cited case of Heirs of JuanchoArdona:
The restrictive view of public use may be appropriate for a nation
which circumscribes the scope of government activities and public
concerns and which possesses big and correctly located public
lands that obviate the need to take private property for public
purposes. Neither circumstance applies to the Philippines. We
have never been a laissez faire State. And the necessities which
impel the exertion of sovereign power are all too often found in
areas of scarce public land or limited government resources. (p.
231)
Specifically, urban renewal or redevelopment and the construction
of low-cost housing is recognized as a public purpose, not only
because of the expanded concept of public use but also because of
specific provisions in the Constitution. The 1973 Constitution made
it incumbent upon the State to establish, maintain and ensure
adequate social services including housing [Art. 11, sec. 7]. The
1987 Constitution goes even further by providing that:
The State shall promote a just and dynamic social order that will
ensure the prosperity and independence of the nation and free the
people from poverty through policies that provide adequate social
services, promote full employment, a rising standard of living and
an improved quality of life for all. [Art. II, sec. 9]
The state shall by law, and for the common good, undertake, in
cooperation with the private sector, a continuing program of
urban land reform and housing which will make available at
affordable cost decent housing and basic services to
underprivileged and homeless citizens in urban centers and
resettlement areas. It shall also promote adequate employment
opportunities to such citizens. In the implementation of such
program the State shall respect the rights of small property
owners. (Art. XIII, sec. 9, Emphaisis supplied)
Housing is a basic human need. Shortage in housing is a matter of
state concern since it directly and significantly affects public
health, safety, the environment and in sum, the general welfare.
The public character of housing measures does not change
because units in housing projects cannot be occupied by all but
only by those who satisfy prescribed qualifications. A beginning
has to be made, for it is not possible to provide housing for are
who need it, all at once.
Population growth, the migration to urban areas and the
mushrooming of crowded makeshift dwellings is a worldwide
development particularly in developing countries. So basic and
urgent are housing problems that the United Nations General
TROPANG POTCHI
Assembly proclaimed 1987 as the "International Year of Shelter
for the Homeless" "to focus the attention of the international
community on those problems". The General Assembly is Seriously
concerned that, despite the efforts of Governments at the national
and local levels and of international organizations, the driving
conditions of the majority of the people in slums and squatter
areas and rural settlements, especially in developing countries,
continue to deteriorate in both relative and absolute terms." [G.A.
Res. 37/221, Yearbook of the United Nations 1982, Vol. 36, p.
1043-4]
In the light of the foregoing, this Court is satisfied that "socialized
housing" fans within the confines of "public use". It is, particularly
important to draw attention to paragraph (d) of Pres. Dec. No.
1224 which opportunities inextricably linked with low-cost
housing, or slum clearance, relocation and resettlement, or slum
improvement emphasize the public purpose of the project.
In the case at bar, the use to which it is proposed to put the
subject parcels of land meets the requisites of "public use". The
lands in question are being expropriated by the NHA for the
expansion of BagongNayon Housing Project to provide housing
facilities to low-salaried government employees. Quoting
respondents:
1. The BagongNayong Project is a housing and community
development undertaking of the National Housing Authority.
Phase I covers about 60 hectares of GSIS property in Antipolo,
Rizal; Phase II includes about 30 hectares for industrial
development and the rest are for residential housing
development.
It is intended for low-salaried government employees and aims to
provide housing and community services for about 2,000 families
in Phase I and about 4,000 families in Phase II.
It is situated on rugged terrain 7.5 kms. from Marikina Town
proper; 22 Kms. east of Manila; and is within the Lungs
SilanganTownsite Reservation (created by Presidential
Proclamation No. 1637 on April 18, 1977).
The lands involved in the present petitions are parts of the
expanded/additional areas for the BagongNayon Project totalling
25.9725 hectares. They likewise include raw, rolling hills. (Rollo,
pp. 266-7)
The acute shortage of housing units in the country is of public
knowledge. Official data indicate that more than one third of the
households nationwide do not own their dwelling places. A
significant number live in dwellings of unacceptable standards,
such as shanties, natural shelters, and structures intended for
77
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
commercial, industrial, or agricultural purposes. Of these
unacceptable dwelling units, more than one third is located within
the National Capital Region (NCR) alone which lies proximate to
and is expected to be the most benefited by the housing project
involved in the case at bar [See, National Census and Statistics
Office, 1980 Census of Population and Housing].
According to the National Economic and Development Authority
at the time of the expropriation in question, about "50 per cent of
urban families, cannot afford adequate shelter even at reduced
rates and will need government support to provide them with
social housing, subsidized either partially or totally" [NEDA, FOUR
YEAR DEVELOPMENT PLAN For 1974-1977, p. 357]. Up to the
present, housing some remains to be out of the reach of a sizable
proportion of the population" [NEDA, MEDIUM-TERM PHILIPPINE
DEVELOPMENT PLAN 1987-1992, p. 240].
The mushrooming of squatter colonies in the Metropolitan Manila
area as well as in other cities and centers of population
throughout the country, and, the efforts of the government to
initiate housing and other projects are matters of public
knowledge [See NEDA, FOUR YEAR DEVELOPMENT PLAN For
1974-1977, pp. 357-361; NEDA, FIVE-YEAR PHILIPPINE
DEVELOPMENT PLAN 1978-1982, pp. 215-228 NEDA, FIVE YEAR
PHILIPPINE DEVELOPMENT PLAN 1983-1987, pp. 109-117; NEDA,
MEDIUM TERM PHILIPPINE DEVELOPMENT PLAN 1987-1992, pp.
240-254].
b) Size of Property
Petitioners further contend that Pres. Decree 1224, as amended,
would allow the taking of "any private land" regardless of the size
and no matter how small the area of the land to be expropriated.
Petitioners claim that "there are vast areas of lands in Mayamot,
Cupang, and San Isidro, Antipolo, Rizal hundred of hectares of
which are owned by a few landowners only. It is surprising
[therefore] why respondent National Housing Authority [would]
include [their] two man lots ..."
In J.M. Tuason Co., Inc. vs. Land Tenure Administration [G. R. No.
L-21064, February 18, 1970, 31 SCRA 413 (1970) at 428] this Court
earlier ruled that expropriation is not confined to landed estates.
This Court, quoting the dissenting opinion of Justice J.B.L. Reyes in
Republic vs. Baylosis, [96 Phil. 461 (1955)], held that:
The propriety of exercising the power of eminent domain under
Article XIII, section 4 of our Constitution cannot be determined on
a purely quantitative or area basis. Not only does the
constitutional provision speak of lands instead of landed estates,
but I see no cogent reason why the government, in its quest for
social justice and peace, should exclusively devote attention to
conflicts of large proportions, involving a considerable number of
individuals, and eschew small controversies and wait until they
grow into a major problem before taking remedial action.
The said case of J.M. Tuason Co., Inc. departed from the ruling in
Guido vs. Rural Progress Administration [84 Phil. 847 (1949)]
which held that the test to be applied for a valid expropriation of
private lands was the area of the land and not the number of
people who stood to be benefited. Since then "there has evolved a
clear pattern of adherence to the "number of people to be
benefited test" " [MataasnaLupa Tenants Association, Inc. v.
Dimayuga, G.R. No. 32049, June 25,1984, 130 SCRA 30 (1984) at
39]. Thus, in Pulido vs. Court of Appeals [G.R. No. 57625, May 3,
1983, 122 SCRA 63 (1983) at 73], this Court stated that, "[i]t is
unfortunate that the petitioner would be deprived of his
landholdings, but his interest and that of his family should not
stand in the way of progress and the benefit of the greater may
only of the inhabitants of the country."
The State acting through the NHA is vested with broad discretion
to designate the particular property/properties to be taken for
socialized housing purposes and how much thereof may be
expropriated. Absent a clear showing of fraud, bad faith, or gross
abuse of discretion, which petitioners herein failed to
demonstrate, the Court will give due weight to and leave
undisturbed the NHA's choice and the size of the site for the
project. The property owner may not interpose objections merely
because in their judgment some other property would have been
more suitable, or just as suitable, for the purpose. The right to the
use, enjoyment and disposal of private property is tempered by
and has to yield to the demands of the common good. The
Constitutional provisions on the subject are clear:
The State shall promote social justice in all phases of national
development. (Art. II, sec. 10)
The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to
human dignity, reduce social, economic, and political inequalities,
and remove cultural inequities by equitably diffusing wealth and
political power for the common good. To this end, the State shall
regulate the acquisition, ownership, use and disposition of
property and its increments. (Art, XIII, sec. 1)
Indeed, the foregoing provisions, which are restatements of the
provisions in the 1935 and 1973 Constitutions, emphasize:
...the stewardship concept, under which private property is
supposed to be held by the individual only as a trustee for the
people in general, who are its real owners. As a mere steward, the
individual must exercise his rights to the property not for his own
TROPANG POTCHI
exclusive and selfish benefit but for the good of the entire
community or nation [MataasnaLupa Tenants Association, Inc.
supra at 42-3 citing I. CRUZ, PHILIPPINE POLITICAL LAW, 70 (1983
ed.)].
2. Just Compensation
Petitioners maintain that Pres. Decree No. 1224, as amended,
would allow the taking of private property upon payment of
unjust and unfair valuations arbitrarily fixed by government
assessors. In addition, they assert that the Decree would deprive
the courts of their judicial discretion to determine what would be
"just compensation".
The foregoing contentions have already been ruled upon by this
Court in the case of Ignacio vs. Guerrero (G.R. No. L-49088, May
29, 1987) which, incidentally, arose from the same expropriation
complaint that led to this instant petition. The provisions on just
compensation found in Presidential Decree Nos. 1224, 1259 and
1313 are the same provisions found in Presidential Decree Nos.
76, 464, 794 and 1533 which were declared unconstitutional in
Export Processing Zone All thirty vs. Dulay (G.R. No. 5960 April 29,
1987) for being encroachments on prerogatives.
This Court abandoned the ruling in National Housing Authority vs.
Reyes [G.R. No. 49439, June 29,1983, 123 SCRA 245 (1983)] which
upheld Pres. Decree No. 464, as amended by - Presidential Decree
Nos. 794, 1224 and 1259.
In said case of Export Processing Zone Authority, this Court
pointed out that:
The basic unfairness of the decrees is readily apparent.
Just compensation means the value of the property at the time of
the taking. It means a fair and full equivalent for the loss
sustained. ALL the facts as to the condition of the property and its
surroundings, its improvements and capabilities, should be
considered.
xxxxxxxxx
Various factors can come into play in the valuation of specific
properties singled out for expropriation. The values given by
provincial assessors are usually uniform for very wide areas
covering several barrios or even an entire total with the exception
of the poblacion. Individual differences are never taken into
account. The value of land is based on such generalities as its
possible cultivation for rice, corn, coconuts, or other crops. Very
often land described as directional has been cultivated for
78
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
generations. Buildings are described in terms of only two or three
classes of building materials and estimates of areas are more
often inaccurate than correct. Tax values can serve as guides but
cannot be absolute substitutes for just compensation.
To say that the owners are estopped to question the valuations
made by assessors since they had the opportunity to protest is
illusory. The overwhelming mass of landowners accept
unquestioningly what is found in the tax declarations prepared by
local assessors or municipal clerks for them. They do not even look
at, much less analyze, the statements. The Idea of expropriation
simply never occurs until a demand is made or a case filed by an
agency authorized to do so. (pp. 12-3)
3. Due Process
Petitioners assert that Pres. Decree 1224, as amended, violates
procedural due process as it allows immediate taking of
possession, control and disposition of property without giving the
owner his day in court. Respondent Judge ordered the issuance of
a writ of possession without notice and without hearing.
The constitutionality of this procedure has also been ruled upon in
the Export Processing Zone Authority case, viz:
It is violative of due process to deny to the owner the opportunity
to prove that the valuation in the tax documents is unfair or
wrong. And it is repulsive to basic concepts of justice and fairness
to allow the haphazard work of minor bureaucrat or clerk to
absolutely prevail over the judgment of a court promulgated only
after expert commissioners have actually viewed the property,
after evidence and arguments pro and con have been presented,
and after all factors and considerations essential to a fair and just
determination have been judiciously evaluated. (p. 13)
On the matter of the issuance of a writ of possession, the ruling in
the Ignacio case is reiterated, thus:
[I]t is imperative that before a writ of possession is issued by the
Court in expropriation proceedings, the following requisites must
be met: (1) There must be a Complaint for expropriation sufficient
in form and in substance; (2) A provisional determination of just
compensation for the properties sought to be expropriated must
be made by the trial court on the basis of judicial (not legislative
or executive) discretion; and (3) The deposit requirement under
Section 2, Rule 67 must be complied with. (p. 14)
This Court holds that "socialized housing" defined in Pres. Decree
No. 1224, as amended by Pres. Decree Nos. 1259 and 1313,
constitutes "public use" for purposes of expropriation. However,
as previously held by this Court, the provisions of such decrees on
just compensation are unconstitutional; and in the instant case
the Court finds that the Orders issued pursuant to the corollary
provisions of those decrees authorizing immediate taking without
notice and hearing are violative of due process.
WHEREFORE, the Orders of the lower court dated January 17,
1978 and June 28, 1978 issuing the writ of possession on the basis
of the market value appearing therein are annulled for having
been issued in excess of jurisdiction. Let this case be remanded to
the court of origin for further proceedings to determine the
compensation the petitioners are entitled to be paid. No costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera,
Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin and
Sarmiento, JJ., concur.
G.R. No. 106440             January 29, 1996
ALEJANDRO MANOSCA, ASUNCION MANOSCA and LEONICA
MANOSCA, petitioners,  shrines, monuments and landmarks and the
vs.
HON. COURT OF APPEALS, HON. BENJAMIN V. PELAYO, Presiding
Judge, RTC-Pasig, Metro Manila, Branch 168, HON.
GRADUACION A. REYES CLARAVAL, Presiding Judge, RTC-Pasig,
Metro Manila, Branch 71, and REPUBLIC OF THE
PHILIPPINES, respondents.
DECISION
VITUG, J.:
In this appeal, via a petition for review on certiorari, from the
decision1 of the Court of Appeals, dated 15 January 1992, in CA-
G.R. SP No. 24969 (entitled "Alejandro Manosca, et al. v. Hon.
Benjamin V. Pelayo, et al."), this Court is asked to resolve whether
or not the "public use" requirement of Eminent Domain is extant
in the attempted expropriation by the Republic of a 492-square-
meter parcel of land so declared by the National Historical
Institute ("NHI") as a national historical landmark.
The facts of the case are not in dispute.
Petitioners inherited a piece of land located at P. Burgos Street,
Calzada, Taguig. Metro Manila, with an area of about four
hundred ninety-two (492) square meters. When the parcel was
ascertained by the NHI to have been the birthsite of Felix Y.
Manalo, the founder of Iglesia Ni Cristo, it passed Resolution No.
1, Series of 1986, pursuant to Section 42 of Presidential Decree
TROPANG POTCHI
No. 260, declaring the land to be a national historical landmark.
The resolution was, on 06 January 1986, approved by the Minister
of Education, Culture and Sports. Later, the opinion of the
Secretary of Justice was asked on the legality of the measure. In
his Opinion No. 133, Series of 1987, the Secretary of Justice
replied in the affirmative; he explained:
According to your guidelines, national landmarks are
places or objects that are associated with an event,
achievement, characteristic, or modification that
makes a turning point or stage in Philippine history.
Thus, the birthsite of the founder of the Iglesia ni
Cristo, the late Felix Y. Manalo, who, admittedly, had
made contributions to Philippine history and culture
has been declared as a national landmark. It has been
held that places invested with unusual historical
interest is a public use for which the power of eminent
domain may be authorized . . . .
In view thereof, it is believed that the National
Historical Institute as an agency of the Government
charged with the maintenance and care of national
development of historical sites that may be declared as
national shrines, monuments and/or landmarks, may
initiate the institution of condemnation proceedings
for the purpose of acquiring the lot in question in
accordance with the procedure provided for in Rule 67
of the Revised Rules of Court. The proceedings should
be instituted by the Office of the Solicitor General in
behalf of the Republic.
Accordingly, on 29 May 1989, the Republic, through the Office of
the Solicitor-General, instituted a complaint for
expropriation3 before the Regional Trial Court of Pasig for and in
behalf of the NHI alleging, inter alia, that:
Pursuant to Section 4 of Presidential Decree No. 260,
the National Historical Institute issued Resolution No.
1, Series of 1986, which was approved on January,
1986 by the then Minister of Education, Culture and
Sports, declaring the above described parcel of land
which is the birthsite of Felix Y. Manalo, founder of the
"Iglesia ni Cristo," as a National Historical Landrnark.
The plaintiff perforce needs the land as such national
historical landmark which is a public purpose.
At the same time, respondent Republic filed an urgent motion for
the issuance of an order to permit it to take immediate possession
of the property. The motion was opposed by petitioners. After a
hearing, the trial court issued, on 03 August 1989,4 an order fixing
the provisional market (P54,120.00) and assessed (P16,236.00)
79
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
values of the property and authorizing the Republic to take over
the property once the required sum would have been deposited
with the Municipal Treasurer of Taguig, Metro Manila.
Petitioners moved to dismiss the complaint on the main thesis
that the intended expropriation was not for a public purpose and,
incidentally, that the act would constitute an application of public
funds, directly or indirectly, for the use, benefit, or support
of Iglesia ni Cristo, a religious entity, contrary to the provision of
Section 29(2), Article VI, of the 1987 Constitution.5 Petitioners
sought, in the meanwhile, a suspension in the implementation of
the 03rd August 1989 order of the trial court.
On 15 February 1990, following the filing by respondent Republic
of its reply to petitioners' motion seeking the dismissal of the
case, the trial court issued its denial of said motion to
dismiss.6 Five (5) days later, or on 20 February 1990,7 another
order was issued by the trial court, declaring moot and academic
the motion for reconsideration and/or suspension of the order of
03 August 1989 with the rejection of petitioners' motion to
dismiss. Petitioners' motion for the reconsideration of the 20th
February 1990 order was likewise denied by the trial court in its
16th April 1991 order.8
Petitioners then lodged a petition for certiorari and prohibition
with the Court of Appeals. In its now disputed 15th January 1992
decision, the appellate court dismissed the petition on the ground
that the remedy of appeal in the ordinary course of law was an
adequate remedy and that the petition itself, in any case, had
failed to show any grave abuse of discretion or lack of
jurisdictional competence on the part of the trial court. A motion
for the reconsideration of the decision was denied in the 23rd July
1992 resolution of the appellate court.
We begin, in this present recourse of petitioners, with a few
known postulates.
Eminent domain, also often referred to as expropriation and, with
less frequency, as condemnation, is, like police power and
taxation, an inherent power of sovereignty. It need not be clothed
with any constitutional gear to exist; instead, provisions in our
Constitution on the subject are meant more to regulate, rather
than to grant, the exercise of the power. Eminent domain is
generally so described as "the highest and most exact idea of
property remaining in the government" that may be acquired for
some public purpose through a method in the nature of a forced
purchase by the State.9 It is a right to take or reassert dominion
over property within the state for public use or to meet a public
exigency. It is said to be an essential part of governance even in its
most primitive form and thus inseparable from sovereignty. 10 The
only direct constitutional qualification is that "private property
shall not be taken for public use without just
compensation." 11 This proscription is intended to provide a
safeguard against possible abuse and so to protect as well the
individual against whose property the power is sought to be
enforced.
Petitioners assert that the expropriation has failed to meet the
guidelines set by this Court in the case of Guido v.Rural Progress
Administration, 12 to wit: (a) the size of the land expropriated; (b)
the large number of people benefited; and, (c) the extent of social
and economic reform.13 Petitioners suggest that we confine the
concept of expropriation only to the following public uses, 14 i.e.,
the —
. . . taking of property for military posts, roads, streets,
sidewalks, bridges, ferries, levees, wharves, piers,
public buildings including schoolhouses, parks,
playgrounds, plazas, market places, artesian wells,
water supply and sewerage systems, cemeteries,
crematories, and railroads.
This view of petitioners is much too limitative and restrictive.
The court, in Guido, merely passed upon the issue of the extent of
the President's power under Commonwealth Act No. 539 to,
The validity of the exercise of the power of eminent domain for
specifically, acquire private lands for subdivision into smaller
traditional purposes is beyond question; it is not at all to be said,
home lots or farms for resale to bona fide tenants or occupants. It
however, that public use should thereby be restricted to such
was in this particular context of the statute that the Court had
traditional uses. The idea that "public use" is strictly limited to
made the pronouncement. The guidelines in Guido were not
clear cases of "use by the public" has long been discarded. This
meant to be preclusive in nature and, most certainly, the power of
Court in Heirs of Juancho Ardona v. Reyes,18 quoting from Berman
eminent domain should not now be understood as being confined
v. Parker (348 U.S. 25; 99 L. ed. 27), held:
only to the expropriation of vast tracts of land and landed
estates. 15
The term "public use," not having been otherwise defined by the
constitution, must be considered in its general concept of meeting
a public need or a public exigency. 16 Black summarizes the
characterization given by various courts to the term; thus:
Public Use. Eminent domain. The constitutional and
statutory basis for taking property by eminent domain.
For condemnation purposes, "public use" is one which
confers same benefit or advantage to the public; it is
not confined to actual use by public. It is measured in
terms of right of public to use proposed facilities for
which condemnation is sought and, as long as public
has right of use, whether exercised by one or many
members of public, a "public advantage" or "public
benefit" accrues sufficient to constitute a public use.
Montana Power Co. vs. Bokma, Mont. 457 P. 2d 769,
772, 773.
TROPANG POTCHI
Public use, in constitutional provisions restricting the
exercise of the right to take private property in virtue
of eminent domain, means a use concerning the whole
community as distinguished from particular individuals.
But each and every member of society need not be
equally interested in such use, or be personally and
directly affected by it; if the object is to satisfy a great
public want or exigency, that is sufficient. Rindge Co.
vs. Los Angeles County, 262 U.S. 700, 43 S.Ct. 689, 692,
67 L.Ed. 1186. The term may be said to mean public
usefulness, utility, or advantage, or what is productive
of general benefit. It may be limited to the inhabitants
of a small or restricted locality, but must be in
common, and not for a particular individual. The use
must be a needful one for the public, which cannot be
surrendered without obvious general loss and
inconvenience. A "public use" for which land may be
taken defies absolute definition for it changes with
varying conditions of society, new appliances in the
sciences, changing conceptions of scope and functions
of government, and other differing circumstances
brought about by an increase in population and new
modes of communication and transportation. Katz v.
Brandon, 156 Conn., 521, 245 A.2d 579,586. 17
We do not sit to determine whether a particular
housing project is or is not desirable. The concept of
the public welfare is broad and inclusive. See DayBrite
Lighting, Inc. v. Missouri, 342 US 421, 424, 96 L. Ed.
469, 472, 72 S Ct 405. The values it represents are
spiritual as well as physical, aesthetic as well as
monetary. It is within the power of the legislature to
determine that the community should be beautiful as
well as healthy, spacious as well as clean, well-
balanced as well as carefully patrolled. In the present
case, the Congress and its authorized agencies have
made determinations that take into account a wide
variety of values. It is no for us to reappraise them. If
those who govern the District of Columbia decide that
the Nation's Capital should be beautiful as well as
sanitary, there is nothing in the Fifth Amendment that
stands in the way.
Once the object is within the authority of Congress, the
right to realize it through the exercise of eminent
80
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

domain is clear. For the power of eminent domain is
merely the means to the end. See Luxton v. North
River Bridge Co. 153 US 525, 529, 530, 38 L. ed. 808,
810, 14 S Ct 891; United States v. Gettysburg Electric R.
Co. 160 US 668, 679, 40 L. ed. 576, 580, 16 S Ct 427.
It has been explained as early as Seña v. Manila Railroad
Co., 19 that:
. . . A historical research discloses the meaning of the
term "public use" to be one of constant growth. As
society advances, its demands upon the individual
increase and each demand is a new use to which the
resources of the individual may be devoted. . . . for
"whatever is beneficially employed for the community
is a public use.
perspective to the case deserves little consideration, for what GUTIERREZ, JR., J.:
should be significant is the principal objective of, not the casual
consequences that might follow from, the exercise of the power.
The question raised in this petition is whether or not Presidential
The purpose in setting up the marker is essentially to recognize
Decrees Numbered 76, 464, 794 and 1533 have repealed and
the distinctive contribution of the late Felix Manalo to the culture
superseded Sections 5 to 8 of Rule 67 of the Revised Rules of
of the Philippines, rather than to commemorate his founding and
Court, such that in determining the just compensation of property
leadership of the Iglesia ni Cristo.
in an expropriation case, the only basis should be its market value
as declared by the owner or as determined by the assessor,
The practical reality that greater benefit may be whichever is lower.
derived by members of the Iglesia ni Cristo than by
most others could well be true but such a peculiar
On January 15, 1979, the President of the Philippines, issued
advantage still remains to be merely incidental and
Proclamation No. 1811, reserving a certain parcel of land of the
secondary in nature. Indeed, that only a few would
public domain situated in the City of Lapu-Lapu, Island of Mactan,
actually benefit from the expropriation of property
Cebu and covering a total area of 1,193,669 square meters, more
does not necessarily diminish the essence and
or less, for the establishment of an export processing zone by
character of public use. 23
petitioner Export Processing Zone Authority (EPZA).

Petitioners contend that they have been denied due process in

Chief Justice Enrique M. Fernando states:
The taking to be valid must be for public use. There
was a time when it was felt that a literal meaning
should be attached to such a requirement. Whatever
project is undertaken must be for the public to enjoy,
as in the case of streets or parks. Otherwise,
expropriation is not allowable. It is not so any more. As
long as the purpose of the taking is public, then the
power of eminent domain comes into play. As just
noted, the constitution in at least two cases, to remove
any doubt, determines what is public use. One is the
expropriation of lands to be subdivided into small lots
for resale at cost to individuals. The other is the
transfer, through the exercise of this power, of utilities
and other private enterprise to the government. It is
accurate to state then that at present whatever may
be beneficially employed for the general welfare
satisfies the requirement of public use. 20
Chief Justice Fernando, writing the ponencia in J.M. Tuason &
Co. vs. Land Tenure Administration, 21 has viewed the Constitution
a dynamic instrument and one that "is not to be construed
narrowly or pedantically" so as to enable it "to meet adequately
whatever problems the future has in store." Fr. Joaquin Bernas, a
noted constitutionalist himself, has aptly observed that what, in
fact, has ultimately emerged is a concept of public use which is
just as broad as "public welfare." 22
Petitioners ask: But "(w)hat is the so-called unusual interest that
the expropriation of (Felix Manalo's) birthplace become so vital as
to be a public use appropriate for the exercise of the power of
eminent domain" when only members of the Iglesia ni
Cristo would benefit? This attempt to give some religious
the fixing of the provisional value of their property. Petitioners
need merely to be reminded that what the law prohibits is the
lack of opportunity to be heard;24contrary to petitioners'
argument, the records of this case are replete with
pleadings 25 that could have dealt, directly or indirectly, with the
provisional value of the property.
Petitioners, finally, would fault respondent appellate court in
sustaining the trial court's order which considered inapplicable
the case of Noble v. City of Manila. 26 Both courts held correctly.
The Republic was not a party to the alleged contract of exchange
between the Iglesia ni Cristo and petitioners which (the
contracting parties) alone, not the Republic, could properly be
bound.
All considered, the Court finds the assailed decision to be in
accord with law and jurisprudence.
WHEREFORE, the petition is DENIED. No costs.
SO ORDERED.
P
G.R. No. L-59603               April 29, 1987
EXPORT PROCESSING ZONE AUTHORITY, petitioner,  hearing on the merits is set on April 2, 1981.
vs.
HON. CEFERINO E. DULAY, in his capacity as the Presiding Judge,
Court of First Instance of Cebu, Branch XVI, Lapu-Lapu City, and
SAN ANTONIO DEVELOPMENT CORPORATION, respondents.
Elena M. Cuevas for respondents.
Not all the reserved area, however, was public land. The
proclamation included, among others, four (4) parcels of land with
an aggregate area of 22,328 square meters owned and registered
in the name of the private respondent. The petitioner, therefore,
offered to purchase the parcels of land from the respondent in
acccordance with the valuation set forth in Section 92,
Presidential Decree (P.D.) No. 464, as amended. The parties failed
to reach an agreement regarding the sale of the property.
The petitioner filed with the then Court of First Instance of Cebu,
Branch XVI, Lapu-Lapu City, a complaint for expropriation with a
prayer for the issuance of a writ of possession against the private
respondent, to expropriate the aforesaid parcels of land pursuant
to P.D. No. 66, as amended, which empowers the petitioner to
acquire by condemnation proceedings any property for the
establishment of export processing zones, in relation to
Proclamation No. 1811, for the purpose of establishing the
Mactan Export Processing Zone.
On October 21, 1980, the respondent judge issued a writ of
possession authorizing the petitioner to take immediate
possession of the premises. On December 23, 1980, the private
respondent flied its answer.
At the pre-trial conference on February 13, 1981, the respondent
judge issued an order stating that the parties have agreed that the
only issue to be resolved is the just compensation for the
properties and that the pre-trial is thereby terminated and the
On February 17, 1981, the respondent judge issued the order of
condemnation declaring the petitioner as having the lawful right
to take the properties sought to be condemned, upon the
payment of just compensation to be determined as of the filing of
81
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
the complaint. The respondent judge also issued a second order,
subject of this petition, appointing certain persons as
commissioners to ascertain and report to the court the just
compensation for the properties sought to be expropriated.
On June 19, 1981, the three commissioners submitted their
consolidated report recommending the amount of P15.00 per
square meter as the fair and reasonable value of just
compensation for the properties.
On July 29, 1981, the petitioner Med a Motion for
Reconsideration of the order of February 19, 1981 and Objection
to Commissioner's Report on the grounds that P.D. No. 1533 has
superseded Sections 5 to 8 of Rule 67 of the Rules of Court on the
ascertainment of just compensation through commissioners; and
that the compensation must not exceed the maximum amount set
by P.D. No. 1533.
On November 14, 1981, the trial court denied the petitioner's
motion for reconsideration and gave the latter ten (10) days
within which to file its objection to the Commissioner's Report.
On February 9, 1982, the petitioner flied this present petition for
certiorari and mandamus with preliminary restraining order,
enjoining the trial court from enforcing the order dated February
17, 1981 and from further proceeding with the hearing of the
expropriation case.
The only issue raised in this petition is whether or not Sections 5
to 8, Rule 67 of the Revised Rules of Court had been repealed or
deemed amended by P.D. No. 1533 insofar as the appointment of
commissioners to determine the just compensation is concerned.
Stated in another way, is the exclusive and mandatory mode of
determining just compensation in P.D. No. 1533 valid and
constitutional?
The petitioner maintains that the respondent judge acted in
excess of his jurisdiction and with grave abuse of discretion in
denying the petitioner's motion for reconsideration and in setting
the commissioner's report for hearing because under P.D. No.
1533, which is the applicable law herein, the basis of just
compensation shall be the fair and current market value declared
by the owner of the property sought to be expropriated or such
market value as determined by the assessor, whichever is lower.
Therefore, there is no more need to appoint commissioners as
prescribed by Rule 67 of the Revised Rules of Court and for said
commissioners to consider other highly variable factors in order
to determine just compensation. The petitioner further maintains
that P.D. No. 1533 has vested on the assessors and the property
owners themselves the power or duty to fix the market value of
the properties and that said property owners are given the full
opportunity to be heard before the Local Board of Assessment
Appeals and the Central Board of Assessment Appeals. Thus, the
vesting on the assessor or the property owner of the right to
determine the just compensation in expropriation proceedings,
with appropriate procedure for appeal to higher administrative
boards, is valid and constitutional.
Prior to the promulgation of P.D. Nos. 76, 464, 794 and 1533, this
Court has interpreted the eminent domain provisions of the
Constitution and established the meaning, under the fundametal
law, of just compensation and who has the power to determine it.
Thus, in the following cases, wherein the filing of the
expropriation proceedings were all commenced prior to the
promulgation of the aforementioned decrees, we laid down the
doctrine onjust compensation:
Municipality of Daet v. Court of Appeals (93 SCRA 503, 516),
x x x           x x x          x x x
"And in the case of J.M. Tuason & Co., Inc. v. Land Tenure
Administration, 31 SCRA 413, the Court, speaking thru now Chief
Justice Fernando, reiterated the 'well-settled (rule) that just
compensation means the equivalent for the value of the property
at the time of its taking. Anything beyond that is more and
anything short of that is less, than just compensation. It means a
fair and full equivalent for the loss sustained, which is the
measure of the indemnity, not whatever gain would accrue to the
expropriating entity."
Garcia v. Court ofappeals (102 SCRA 597, 608),
x x x           x x x          x x x
"Hence, in estimating the market value, all the
capabilities of the property and all the uses to which it
may be applied or for which it is adapted are to be
considered and not merely the condition it is in the
time and the use to which it is then applied by the
owner. All the facts as to the condition of the property
and its surroundings, its improvements and capabilities
may be shown and considered in estimating its value."
Republic v. Santos (141 SCRA 30, 35-36),
"According to section 8 of Rule 67, the court is not
bound by the commissioners' report. It may make such
order or render such judgment as shall secure to the
plaintiff the property essential to the exercise of his
right of condemnation, and to the defendant just
TROPANG POTCHI
compensation for the property expropriated. This
Court may substitute its own estimate of the value as
gathered from the record (Manila Railroad Company v.
Velasquez, 32 Phil. 286)."
However, the promulgation of the aforementioned decrees
practically set aside the above and many other precedents
hammered out in the course of evidence-laden, well argued, fully
heard, studiously deliberated, and judiciously considered court
proceedings. The decrees categorically and peremptorily limited
the definition of just compensation thus:
P.D. No. 76:
x x x           x x x          x x x
"For purposes of just compensation in cases of private
property acquired by the government for public use,
the basis shall be the current and fair market value
declared by the owner or administrator, or such
market value as determined by the Assessor,
whichever is lower."
P.D. No. 464:
"Section 92. Basis for payment of just compensation in
expropriation proceedings. — In determining just
compensation which private property is acquired by
the government for public use, the basis shall be the
market value declared by the owner or administrator
or anyone having legal interest in the property, or such
market value as determined by the assessor,
whichever is lower."
P.D. No. 794:
"Section 92. Basis for payment of just compensation in
expropriation proceedings. — In determining just
compensation when private property is acquired by
the government for public use, the same shall not
exceed the market value declared by the owner or
administrator or anyone having legal interest in the
property, or such market value as determined by the
assessor, whichever is lower."
P.D. No. 1533:
"Section 1. In determining just compensation for
private property acquired through eminent domain
proceedings, the compensation to be paid shall not
82
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
exceed the value declared by the owner or
administrator or anyone having legal interest in the
property or determined by the assessor, pursuant to
the Real Property Tax Code, whichever value is lower,
prior to the recommendation or decision of the
appropriate Government office to acquire the
property."
We are constrained to declare the provisions of the Decrees on
just compensation unconstitutional and void and accordingly
dismiss the instant petition for lack of merit.
The method of ascertaining just compensation under the
aforecited decrees constitutes impermissible encroachment on
judicial prerogatives. It tends to render this Court inutile in a
matter which under the Constitution is reserved to it for final
determination.
Thus, although in an expropriation proceeding the court
technically would still have the power to determine the just
compensation for the property, following the applicable decrees,
its task would be relegated to simply stating the lower value of
the property as declared either by the owner or the assessor. As a
necessary consequence, it would be useless for the court to
appoint commissioners under Rule 67 of the Rules of Court.
Moreover, the need to satisfy the due process clause in the taking
of private property is seemingly fulfilled since it cannot be said
that a judicial proceeding was not had before the actual taking.
However, the strict application of the decrees during the
proceedings would be nothing short of a mere formality or
charade as the court has only to choose between the valuation of
the owner and that of the assessor, and its choice is always
limited to the lower of the two. The court cannot exercise its
discretion or independence in determining what is just or fair.
Even a grade school pupil could substitute for the judge insofar as
the determination of constitutional just compensation is
concerned.
In the case of National Housing Authority v. Reyes (123 SCRA 245),
this Court upheld P.D. No. 464, as further amended by P.D. Nos.
794, 1224 and 1259. In this case, the petitioner National Housing
Authority contended that the owner's declaration at P1,400.00
which happened to be lower than the assessor's assessment, is
the just compensation for the respondent's property under
section 92 of P.D. No. 464. On the other hand, the private
respondent stressed that while there may be basis for the
allegation that the respondent judge did not follow the decree,
the matter is still subject to his final disposition, he having been
vested with the original and competent authority to exercise his
judicial discretion in the light of the constitutional clauses on due
process and equal protection.
To these opposing arguments, this Court ruled ihat under the
conceded facts, there should be a recognition that the law as it
stands must be applied; that the decree having spoken so clearly
and unequivocably calls for obedience; and that on a matter
where the applicable law speaks in no uncertain language, the
Court has no choice except to yield to its command. We further
stated that "the courts should recognize that the rule introduced
by P.D. No. 76 and reiterated in subsequent decrees does not
upset the established concepts of justice or the constitutional
provision on just compensation for, precisely, the owner is
allowed to make his own valuation of his property."
While the Court yielded to executive prerogative exercised in the
form of absolute law-making power, its members, nonetheless,
remained uncomfortable with the implications of the decision and
the abuse and unfairness which might follow in its wake. For one
thing, the President himself did not seem assured or confident
with his own enactment. It was not enough to lay down the law
on determination of just compensation in P.D. 76. It had to be
repeated and reiterated in P.D. 464, P.D. 794, and P.D. 1533. The
provision is also found in P.D. 1224, P.D. 1259 and P.D. 1313.
Inspite of its effectivity as general law and the wide publicity given
to it, the questioned provision or an even stricter version had to
be embodied in cases of specific expropriations by decree as in
P.D. 1669 expropriating the Tambunting Estate and P.D. 1670
expropriating the Sunog Apog area in Tondo, Manila.
In the present petition, we are once again confronted with the
same question of whether the courts under P.D. 1533, which
contains the same provision on just compensation as its
predecessor decrees, still have the power and authority to
determine just compensation, independent of what is stated by
the decree and to this effect, to appoint commissioners for such
purpose.
This time, we answer in the affirmative.
In overruling the petitioner's motion for reconsideration and
objection to the commissioner's report, the trial court said:
"Another consideration why the Court is empowered
to appoint commissioners to assess the just
compensation of these properties under eminent
domain proceedings, is the well-entrenched ruling that
'the owner of property expropriated is entitled to
recover from expropriating authority the fair and full
value of the lot, as of the time when possession
thereof was actually taken by the province, plus
consequential damages — including attorney's fees —
from which the consequential benefits, if any should
be deducted, with interest at the legal rate, on the
aggregate sum due to the owner from and after the
TROPANG POTCHI
date of actual taking.' (Capitol Subdivision, Inc. v.
Province of Negros Occidental, 7 SCRA 60). In fine, the
decree only establishes a uniform basis for
determining just compensation which the Court may
consider as one of the factors in arriving at 'just
compensation,' as envisage in the Constitution. In the
words of Justice Barredo, "Respondent court's
invocation of General Order No. 3 of September 21,
1972 is nothing short of an unwarranted abdication of
judicial authority, which no judge duly imbued with the
implications of the paramount principle of
independence of the judiciary should ever think of
doing." (Lina v. Purisima, 82 SCRA 344, 351; Cf. Prov. of
Pangasinan v. CFI Judge of Pangasinan, Br. VIII, 80 SCRA
117) Indeed, where this Court simply follows PD 1533,
thereby limiting the determination of just
compensation on the value declared by the owner or
administrator or as determined by the Assessor,
whichever is lower, it may result in the deprivation of
the landowner's right of due process to enable it to
prove its claim to just compensation, as mandated by
the Constitution. (Uy v. Genato, 57 SCRA 123). The tax
declaration under the Real Property Tax Code is,
undoubtedly, for purposes of taxation."
We are convinced and so rule that the trial court correctly stated
that the valuation in the decree may only serve as a guiding
principle or one of the factors in determining just compensation
but it may not substitute the court's own judgment as to what
amount should be awarded and how to arrive at such amount. A
return to the earlier well-established doctrine, to our mind, is
more in keeping with the principle that the judiciary should live up
to its mission "by vitalizing and not denigrating constitutional
rights." (See Salonga v. Cruz Paño, 134 SCRA 438, 462; citing
Mercado v. Court of First Instance of Rizal, 116 SCRA 93.) The
doctrine we enunciated in National Housing Authority v. Reyes,
supra, therefore, must necessarily be abandoned if we are to
uphold this Court's role as the guardian of the fundamental rights
guaranteed by the due process and equal protection clauses and
as the final arbiter over transgressions committed against
constitutional rights.
The basic unfairness of the decrees is readily apparent.
Just compensation means the value of the property at the time of
the taking. It means a fair and full equivalent for the loss
sustained. All the facts as to the condition of the property and its
surroundings, its improvements and capabilities, should be
considered.
In this particular case, the tax declarations presented by the
petitioner as basis for just compensation were made by the Lapu-
83
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Lapu municipal, later city assessor long before martial law, when
land was not only much cheaper but when assessed values of
properties were stated in figures constituting only a fraction of
their true market value. The private respondent was not even the
owner of the properties at the time. It purchased the lots for
development purposes. To peg the value of the lots on the basis
of documents which are out of date and at prices below the
acquisition cost of present owners would be arbitrary and
confiscatory.
Various factors can come into play in the valuation of specific
properties singled out for expropriation. The values given by
provincial assessors are usually uniform for very wide areas
covering several barrios or even an entire town with the
exception of the poblacion. Individual differences are never taken
into account. The value of land is based on such generalities as its
possible cultivation for rice, corn, coconuts, or other crops. Very
often land described as "cogonal" has been cultivated for
generations. Buildings are described in terms of only two or three
classes of building materials and estimates of areas are more
often inaccurate than correct. Tax values can serve as guides but
cannot be absolute substitutes for just compensation.
To say that the owners are estopped to question the valuations
made by assessors since they had the opportunity to protest is
illusory. The overwhelming mass of land owners accept
unquestioningly what is found in the tax declarations prepared by
local assessors or municipal clerks for them. They do not even
look at, much less analyze, the statements. The Idea of
expropriation simply never occurs until a demand is made or a
case filed by an agency authorized to do so.
It is violative of due process to deny to the owner the opportunity
to prove that the valuation in the tax documents is unfair or
wrong. And it is repulsive to basic concepts of justice and fairness
to allow the haphazard work of a minor bureaucrat or clerk to
absolutely prevail over the judgment of a court promulgated only
after expert commissioners have actually viewed the property,
after evidence and arguments pro and con have been presented,
and after all factors and considerations essential to a fair and just
determination have been judiciously evaluated.
As was held in the case of Gideon v. Wainwright (93 ALR
2d,733,742):
"In the light of these and many other prior decisions of this Court,
it is not surprising that the Betts Court, when faced with the
contention that 'one charged with crime, who is unable to obtain
counsel must be furnished counsel by the State,' conceded that
'[E]xpressions in the opinions of this court lend color to the
argument. . .' 316 U.S., at 462, 463, 86 L ed. 1602, 62 S Ct. 1252.
The fact is that in deciding as it did-that "appointment of counsel
is not a fundamental right, essential to a fair trial" — the Court in
Betts v. Brady made an ubrupt brake with its own well-considered
precedents. In returning to these old precedents, sounder we
believe than the new, we but restore constitutional principles
established to achieve a fair system of justice. . ."
We return to older and more sound precedents. This Court has
the duty to formulate guiding and controlling constitutional
principles, precepts, doctrines, or rules. (See Salonga v. Cruz
Pano, supra).
The determination of "just compensation" in eminent domain
cases is a judicial function. The executive department or the
legislature may make the initial determinations but when a party
claims a violation of the guarantee in the Bill of Rights that private
property may not be taken for public use without just
compensation, no statute, decree, or executive order can
mandate that its own determination shall prevail over the court's
findings. Much less can the courts be precluded from looking into
the "just-ness" of the decreed compensation.
We, therefore, hold that P.D. No. 1533, which eliminates the
court's discretion to appoint commissioners pursuant to Rule 67
of the Rules of Court, is unconstitutional and void. To hold
otherwise would be to undermine the very purpose why this
Court exists in the first place.
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby
DISMISSED. The temporary restraining order issued on February
16, 1982 is LIFTED and SET ASIDE.
SO ORDERED.
Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ.,concur.
Teehankee, C.J., in the result.
Yap, J., on leave.
Petition dismissed. Order lifted and set aside.
G.R. No. 127820 July 20, 1998
MUNICIPALITY OF PARAÑAQUE, petitioner,
vs.
V.M. REALTY CORPORATION, respondent.
TROPANG POTCHI
 
PANGANIBAN, J.:
A local government unit (LGU), like the Municipality of Parañaque,
cannot authorize an expropriation of private property through a
mere resolution of its lawmaking body. The Local Government
Code expressly and clearly requires an ordinance or a local law for
the purpose. A resolution that merely expresses the sentiment or
opinion of the Municipal Council will not suffice. On the other
hand, the principle of res judicata does not bar subsequent
proceedings for the expropriation of the same property when all
the legal requirements for its valid exercise are complied with.
Statement of the Case
These principles are applied by this Court in resolving this petition
for review on certiorari of the July 22, 1996 Decision 1 of the Court
of Appeals 2 in CA GR CV No. 48048, which affirmed in toto 3 the
Regional Trial Court's August 9, 1994 Resolution. 4 The trial court
dismissed the expropriation suit as follows:
The right of the plaintiff to exercise the
power of eminent domain is not disputed.
However, such right may be exercised only
pursuant to an Ordinance (Sec. 19, R.A No.
7160). In the instant case, there is no such
ordinance passed by the Municipal Council
of Parañaque enabling the Municipality,
thru its Chief Executive, to exercise the
power of eminent domain. The complaint,
therefore, states no cause of action.
Assuming that plaintiff has a cause of
action, the same is barred by a prior
judgment. On September 29, 1987, the
plaintiff filed a complaint for expropriation
involving the same parcels of land which
was docketed as Civil Case No. 17939 of this
Court (page 26, record). Said case was
dismissed with prejudice on May 18, 1988
(page 39, record). The order of dismissal
was not appealed, hence, the same became
final. The plaintiff can not be allowed to
pursue the present action without violating
the principle of [r]es [j]udicata. While
defendant in Civil Case No. 17939 was
Limpan Investment Corporation, the
doctrine of res judicata still applies because
the judgment in said case (C.C. No. 17939)
is conclusive between the parties and their
84
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
successors-in-interest (Vda. de Buncio vs.
Estate of the late Anita de Leon). The herein
defendant is the successor-in-interest of
Limpan Investment Corporation as shown
by the "Deed of Assignment Exchange"
executed on June 13, 1990.
WHEREFORE, defendant's motion for
reconsideration is hereby granted. The
order dated February 4, 1994 is vacated and
set aside.
This case is hereby dismissed. No
pronouncement as to costs.
SO ORDERED. 5
Factual Antecedents
Pursuant to Sangguniang Bayan Resolution No. 93-95, Series of
1993, 6 the Municipality of Parañaque filed on September 20,
1993, a Complaint for expropriation 7 against Private Respondent
V.M. Realty Corporation over two parcels of land (Lots 2-A-2 and
2-B-1 of Subdivision Plan Psd-17917), with a combined area of
about 10,000 square meters, located at Wakas, San Dionisio,
Parañaque, Metro Manila, and covered by Torrens Certificate of
Title No. 48700. Allegedly, the complaint was filed "for the
purpose of alleviating the living conditions of the underprivileged
by providing homes for the homeless through a socialized housing
project." 8 Parenthetically, it was also for this stated purpose that
petitioner, pursuant to its Sangguniang Bayan Resolution No. 577,
Series of 1991, 9 previously made an offer to enter into a
negotiated sale of the property with private respondent, which
the latter did not accept. 10
Finding the Complaint sufficient in form and substance, the
Regional Trial Court of Makati, Branch 134, issued an Order dated
January 10, 1994, 11 giving it due course. Acting on petitioner's
motion, said court issued an Order dated February 4,
1994, 12 authorizing petitioner to take possession of the subject
property upon deposit with its clerk of court of an amount
equivalent to 15 percent of its fair market value based on its
current tax declaration.
On February 21, 1994, private respondent filed its Answer
containing affirmative defenses and a counterclaim, 13alleging in
the main that (a) the complaint failed to state a cause of action
because it was filed pursuant to a resolution and not to an
ordinance as required by RA 7160 (the Local Government Code);
and (b) the cause of action, if any, was barred by a prior judgment
or res judicata. On private respondent's motion, its Answer was
treated as a motion to dismiss. 14 On March 24, 1991, 15 petitioner
filed its opposition, stressing that the trial court's Order dated
February 4, 1994 was in accord with Section 19 of RA 7160, and
that the principle of res judicata was not applicable.
Thereafter, the trial court issued its August 9, 1994
Resolution 16 nullifying its February 4, 1994 Order and dismissing
the case. Petitioner's motions for reconsideration and transfer of
venue were denied by the trial court in a Resolution dated
December 2, 1994. 17 Petitioner then appealed to Respondent
Court, raising the following issues:
1. Whether or not the Resolution of the Parañaque Municipal
Council No. 93-95, Series of 1993 is a substantial compliance of
the statutory requirement of Section 19, R.A. 7180 [sic] in the
exercise of the power of eminent domain by the plaintiff-
appellant.
2. Whether or not the complaint in this case states no cause of
action.
3. Whether or not the strict adherence to the literal observance to
the rule of procedure resulted in technicality standing in the way
of substantial justice.
4. Whether or not the principle of res judicata is applicable to the
present case. 18
As previously mentioned, the Court of Appeals affirmed in
toto the trial court's Decision. Respondent Court, in its assailed
Resolution promulgated on January 8, 1997, 19 denied petitioner's
Motion for Reconsideration for lack of merit.
Hence, this appeal. 20
The Issues
Before this Court, petitioner posits two issues, viz.:
1. A resolution duly approved by the
municipal council has the same force and
effect of an ordinance and will not deprive
an expropriation case of a valid cause of
action.
2. The principle of res judicata as a ground
for dismissal of case is not applicable when
public interest is primarily involved. 21
TROPANG POTCHI
The Court's Ruling
The petition is not meritorious.
First Issue:
Resolution Different from an Ordinance
Petitioner contends that a resolution approved by the municipal
council for the purpose of initiating an expropriation case
"substantially complies with the requirements of the
law" 22 because the terms "ordinance" and "resolution" are
synonymous for "the purpose of bestowing authority [on] the
local government unit through its chief executive to initiate the
expropriation proceedings in court in the exercise of the power of
eminent domain." 23 Petitioner seeks to bolster this contention
by citing Article 36, Rule VI of the Rules and Regulations
Implementing the Local Government Code, which provides. "If the
LGU fails to acquire a private property for public use, purpose, or
welfare through purchase, the LGU may expropriate said property
through a resolution of the Sanggunian authorizing its chief
executive to initiate expropriation proceedings." 24 (Emphasis
supplied.)
The Court disagrees. The power of eminent domain is lodged in
the legislative branch of government, which may delegate the
exercise thereof to LGUs, other public entities and public
utilities. 25 An LGU may therefore exercise the power to
expropriate private property only when authorized by Congress
and subject to the latter's control and restraints, imposed
"through the law conferring the power or in other
legislations." 26 In this case, Section 19 of RA 7160, which
delegates to LGUs the power of eminent domain, also lays down
the parameters for its exercise. It provides as follows:
Sec. 19. Eminent Domain. A local
government unit may, through its chief
executive and acting pursuant to an
ordinance, exercise the power of eminent
domain for public use, or purpose, or
welfare for the benefit of the poor and the
landless, upon payment of just
compensation, pursuant to the provisions
of the Constitution and pertinent
laws: Provided, however, That the power of
eminent domain may not be exercised
unless a valid and definite offer has been
previously made to the owner, and such
offer was not accepted: Provided, further,
That the local government unit may
immediately take possession of the
85
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
property upon the filing of the
expropriation proceedings and upon making
a deposit with the proper court of at least
fifteen percent (15%) of the fair market
value of the property based on the current
tax declaration of the property to be
expropriated: Provided,finally, That, the
amount to be paid for the expropriated
property shall be determined by the proper
court, based on the fair market value at the
time of the taking of the property.
(Emphasis supplied)
Thus, the following essential requisites must concur before an
LGU can exercise the power of eminent domain:
1. An ordinance is enacted by the local
legislative council authorizing the local chief
executive, in behalf of the LGU, to exercise
the power of eminent domain or pursue
expropriation proceedings over a particular
private property.
2. The power of eminent domain is
exercised for public use, purpose or
welfare, or for the benefit of the poor and
the landless.
3. There is payment of just compensation,
as required under Section 9, Article III of the
Constitution, and other pertinent laws.
4. A valid and definite offer has been
previously made to the owner of the
property sought to be expropriated, but
said offer was not accepted. 27
In the case at bar, the local chief executive sought to exercise the
power of eminent domain pursuant to a resolution of the
municipal council. Thus, there was no compliance with the first
requisite that the mayor be authorized through an ordinance.
Petitioner cites Camarines Sur vs. Court of Appeals 28 to show that
a resolution may suffice to support the exercise of eminent
domain by an LGU. 29 This case, however, is not in point because
the applicable law at that time was BP 337, 30 the previous Local
Government Code, which had provided that a mere resolution
would enable an LGU to exercise eminent domain. In contrast, RA
7160, 31 the present Local Government Code which was already in
force when the Complaint for expropriation was filed, explicitly
required an ordinance for this purpose.
We are not convinced by petitioner's insistence that the terms
"resolution" and "ordinance" are synonymous. A municipal
ordinance is different from a resolution. An ordinance is a law, but
a resolution is merely a declaration of the sentiment or opinion of
a lawmaking body on a specific matter. 32 An ordinance possesses
a general and permanent character, but a resolution is temporary
in nature. Additionally, the two are enacted differently — a third
reading is necessary for an ordinance, but not for a resolution,
unless decided otherwise by a majority of all
the Sanggunianmembers. 33
If Congress intended to allow LGUs to exercise eminent domain
through a mere resolution, it would have simply adopted the
language of the previous Local Government Code. But Congress
did not. In a clear divergence from the previous Local Government
Code, Section 19 of RA 7160 categorically requires that the local
chief executive act pursuant to an ordinance. Indeed, "[l]egislative
intent is determined principally from the language of a statute.
Where the language of a statute is clear and unambiguous, the
law is applied according to its express terms, and interpretation
would be resorted to only where a literal interpretation would be
resorted to only where a literal interpretation would be either
impossible or absurd or would lead to an injustice." 34 In the
instant case, there is no reason to depart from this rule, since the
law requiring an ordinance is not at all impossible, absurd, or
unjust.
Moreover, the power of eminent domain necessarily involves a
derogation of a fundamental or private right of the
people. 35 Accordingly, the manifest change in the legislative
language — from "resolution" under BP 337 to "ordinance" under
RA 7160 — demands a strict construction. "No species of property
is held by individuals with greater tenacity, and is guarded by the
Constitution and laws more sedulously, than the right to the
freehold of inhabitants. When the legislature interferes with that
right and, for greater public purposes, appropriates the land of an
individual without his consent, the plain meaning of the law
should not be enlarged by doubtful interpretation." 36
Petitioner relies on Article 36, Rule VI of the Implementing Rules,
which requires only a resolution to authorize an LGU to exercise
eminent domain. This is clearly misplaced, because Section 19 of
RA 7160, the law itself, surely prevails over said rule which merely
seeks to implement it. 37 It is axiomatic that the clear letter of the
law is controlling and cannot be amended by a mere
administrative rule issued for its implementation. Besides, what
the discrepancy seems to indicate is a mere oversight in the
wording of the implementing rules, since Article 32, Rule VI
thereof, also requires that, in exercising the power of eminent
domain, the chief executive of the LGU act pursuant to an
ordinance.
TROPANG POTCHI
In this ruling, the Court does not diminish the policy embodied in
Section 2, Article X of the Constitution, which provides that
"territorial and political subdivisions shall enjoy local autonomy."
It merely upholds the law as worded in RA 7160. We stress that an
LGU is created by law and all its powers and rights are sourced
therefrom. It has therefore no power to amend or act beyond the
authority given and the limitations imposed on it by law. Strictly
speaking, the power of eminent domain delegated to an LGU is in
reality not eminent but "inferior" domain, since it must conform
to the limits imposed by the delegation, and thus partakes only of
a share in eminent domain. 38Indeed, "the national legislature is
still the principal of the local government units, which cannot defy
its will or modify or violate it." 39
Complaint Does Not
State a Cause of Action
In its Brief filed before Respondent Court, petitioner argues that
its Sangguniang Bayan passed an ordinance on October 11, 1994
which reiterated its Resolution No. 93-35, Series of 1993, and
ratified all the acts of its mayor regarding the subject
expropriation. 40
This argument is bereft of merit. In the first place, petitioner
merely alleged the existence of such an ordinance, but it did not
present any certified true copy thereof. In the second place,
petitioner did not raise this point before this Court. In fact, it was
mentioned by private respondent, and only in passing. 41 In any
event, this allegation does not cure the inherent defect of
petitioner's Complaint for expropriation filed on September 23,
1993. It is hornbook doctrine that
. . . in a motion to dismiss based on the
ground that the complaint fails to state a
cause of action, the question submitted
before the court for determination is the
sufficiency of the allegations in the
complaint itself. Whether those allegations
are true or not is beside the point, for their
truth is hypothetically admitted by the
motion. The issue rather is: admitting them
to be true, may the court render a valid
judgment in accordance with the prayer of
the complaint? 42
The fact that there is no cause of action is evident from the face of
the Complaint for expropriation which was based on a mere
resolution. The absence of an ordinance authorizing the same is
equivalent to lack of cause of action. Consequently, the Court of
86
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Appeals committed no reversible error in affirming the trial court's
Decision which dismissed the expropriation suit.
Second Issue:
Eminent Domain Not Barred by Res Judicata
As correctly found by the Court of Appeals 43 and the trial
court, 44 all the requisites for the application of res judicataare
present in this case. There is a previous final judgment on the
merits in a prior expropriation case involving identical interests,
subject matter and cause of action, which has been rendered by a
court having jurisdiction over it.
Be that as it may, the Court holds that the principle of res
judicata, which finds application in generally all cases and
proceedings, 45 cannot bar the right of the State or its agent to
expropriate private property. The very nature of eminent domain,
as an inherent power of the State, dictates that the right to
exercise the power be absolute and unfettered even by a prior
judgment or res judicata. The scope of eminent domain is plenary
and, like police power, can "reach every form of property which
the State might need for public use." 46 "All separate interests of
individuals in property are held of the government under this tacit
agreement or implied reservation. Notwithstanding the grant to
individuals, the eminent domain, the highest and most exact idea
of property, remains in the government, or in the aggregate body
of the people in their sovereign capacity; and they have the right
to resume the possession of the property whenever the public
interest requires it." 47 Thus, the State or its authorized agent
cannot be forever barred from exercising said right by reason
alone of previous non-compliance with any legal requirement.
While the principle of res judicata does not denigrate the right of
the State to exercise eminent domain, it does apply to specific
issues decided in a previous case. For example, a final judgment
dismissing an expropriation suit on the ground that there was no
prior offer precludes another suit raising the same issue; it
cannot, however, bar the State or its agent from thereafter
complying with this requirement, as prescribed by law, and
subsequently exercising its power of eminent domain over the
same property. 48 By the same token, our ruling that petitioner
cannot exercise its delegated power of eminent domain through a
mere resolution will not bar it from reinstituting similar
proceedings, once the said legal requirement and, for that
matter, all others are properly complied with. Parenthetically and
by parity of reasoning, the same is also true of the principle of
"law of the case." In Republic vs. De Knecht, 49 the Court ruled that
the power of the State or its agent to exercise eminent domain is
not diminished by the mere fact that a prior final judgment over
the property to be expropriated has become the law of the case
as to the parties. The State or its authorized agent may still
subsequently exercise its right to expropriate the same property,
once all legal requirements are complied with. To rule otherwise
will not only improperly diminish the power of eminent domain,
but also clearly defeat social justice.
WHEREFORE, the petition is hereby DENIED without prejudice to
petitioner's proper exercise of its power of eminent domain over
subject property. Costs against petitioner.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-10405           December 29, 1960
WENCESLAO PASCUAL, in his official capacity as Provincial
Governor of Rizal, petitioner-appellant, 
vs.
THE SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS, ET
AL., respondents-appellees.
Asst. Fiscal Noli M. Cortes and Jose P. Santos for appellant.
Office of the Asst. Solicitor General Jose G. Bautista and Solicitor
A. A. Torres for appellee.
 
CONCEPCION, J.:
Appeal, by petitioner WenceslaoPascual, from a decision of the
Court of First Instance of Rizal, dismissing the above entitled case
and dissolving the writ of preliminary injunction therein issued,
without costs.
On August 31, 1954, petitioner WenceslaoPascual, as Provincial
Governor of Rizal, instituted this action for declaratory relief, with
injunction, upon the ground that Republic Act No. 920, entitled
"An Act Appropriating Funds for Public Works", approved on June
20, 1953, contained, in section 1-C (a) thereof, an item (43[h]) of
P85,000.00 "for the construction, reconstruction, repair,
extension and improvement" of Pasig feeder road terminals (Gen.
TROPANG POTCHI
Roxas — Gen. Araneta — Gen. Lucban — Gen. Capinpin — Gen.
Segundo — Gen. Delgado — Gen. Malvar — Gen. Lim)"; that, at
the time of the passage and approval of said Act, the
aforementioned feeder roads were "nothing but projected and
planned subdivision roads, not yet constructed, . . . within the
Antonio Subdivision . . . situated at . . . Pasig, Rizal" (according to
the tracings attached to the petition as Annexes A and B, near
Shaw Boulevard, not far away from the intersection between the
latter and Highway 54), which projected feeder roads "do not
connect any government property or any important premises to
the main highway"; that the aforementioned Antonio Subdivision
(as well as the lands on which said feeder roads were to be
construed) were private properties of respondent Jose C. Zulueta,
who, at the time of the passage and approval of said Act, was a
member of the Senate of the Philippines; that on May, 1953,
respondent Zulueta, addressed a letter to the Municipal Council of
Pasig, Rizal, offering to donate said projected feeder roads to the
municipality of Pasig, Rizal; that, on June 13, 1953, the offer was
accepted by the council, subject to the condition "that the donor
would submit a plan of the said roads and agree to change the
names of two of them"; that no deed of donation in favor of the
municipality of Pasig was, however, executed; that on July 10,
1953, respondent Zulueta wrote another letter to said council,
calling attention to the approval of Republic Act. No. 920, and the
sum of P85,000.00 appropriated therein for the construction of
the projected feeder roads in question; that the municipal council
of Pasig endorsed said letter of respondent Zulueta to the District
Engineer of Rizal, who, up to the present "has not made any
endorsement thereon" that inasmuch as the projected feeder
roads in question were private property at the time of the passage
and approval of Republic Act No. 920, the appropriation of
P85,000.00 therein made, for the construction, reconstruction,
repair, extension and improvement of said projected feeder
roads, was illegal and, therefore, void ab initio"; that said
appropriation of P85,000.00 was made by Congress because its
members were made to believe that the projected feeder roads in
question were "public roads and not private streets of a private
subdivision"'; that, "in order to give a semblance of legality, when
there is absolutely none, to the aforementioned appropriation",
respondents Zulueta executed on December 12, 1953, while he
was a member of the Senate of the Philippines, an alleged deed of
donation — copy of which is annexed to the petition — of the
four (4) parcels of land constituting said projected feeder roads, in
favor of the Government of the Republic of the Philippines; that
said alleged deed of donation was, on the same date, accepted by
the then Executive Secretary; that being subject to an onerous
condition, said donation partook of the nature of a contract; that,
87
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
such, said donation violated the provision of our fundamental law
prohibiting members of Congress from being directly or indirectly
financially interested in any contract with the Government, and,
hence, is unconstitutional, as well as null and void ab initio, for the
construction of the projected feeder roads in question with public
funds would greatly enhance or increase the value of the
aforementioned subdivision of respondent Zulueta, "aside from
relieving him from the burden of constructing his subdivision
streets or roads at his own expense"; that the construction of said
projected feeder roads was then being undertaken by the Bureau
of Public Highways; and that, unless restrained by the court, the
respondents would continue to execute, comply with, follow and
implement the aforementioned illegal provision of law, "to the
irreparable damage, detriment and prejudice not only to the
petitioner but to the Filipino nation."
Petitioner prayed, therefore, that the contested item of Republic
Act No. 920 be declared null and void; that the alleged deed of
donation of the feeder roads in question be "declared
unconstitutional and, therefor, illegal"; that a writ of injunction be
issued enjoining the Secretary of Public Works and
Communications, the Director of the Bureau of Public Works and
Highways and Jose C. Zulueta from ordering or allowing the
continuance of the above-mentioned feeder roads project, and
from making and securing any new and further releases on the
aforementioned item of Republic Act No. 920, and the disbursing
officers of the Department of Public Works and Highways from
making any further payments out of said funds provided for in
Republic Act No. 920; and that pending final hearing on the
merits, a writ of preliminary injunction be issued enjoining the
aforementioned parties respondent from making and securing
any new and further releases on the aforesaid item of Republic
Act No. 920 and from making any further payments out of said
illegally appropriated funds.
Respondents moved to dismiss the petition upon the ground that
petitioner had "no legal capacity to sue", and that the petition did
"not state a cause of action". In support to this motion,
respondent Zulueta alleged that the Provincial Fiscal of Rizal, not
its provincial governor, should represent the Province of Rizal,
pursuant to section 1683 of the Revised Administrative Code; that
said respondent is " not aware of any law which makes illegal the
appropriation of public funds for the improvements of . . . private
property"; and that, the constitutional provision invoked by
petitioner is inapplicable to the donation in question, the same
being a pure act of liberality, not a contract. The other
respondents, in turn, maintained that petitioner could not assail
the appropriation in question because "there is no actual bona
fide case . . . in which the validity of Republic Act No. 920 is
necessarily involved" and petitioner "has not shown that he has a
personal and substantial interest" in said Act "and that its
enforcement has caused or will cause him a direct injury."
Acting upon said motions to dismiss, the lower court rendered the
aforementioned decision, dated October 29, 1953, holding that,
since public interest is involved in this case, the Provincial
Governor of Rizal and the provincial fiscal thereof who represents
him therein, "have the requisite personalities" to question the
constitutionality of the disputed item of Republic Act No. 920;
that "the legislature is without power appropriate public revenues
for anything but a public purpose", that the instructions and
improvement of the feeder roads in question, if such roads where
private property, would not be a public purpose; that, being
subject to the following condition:
The within donation is hereby made upon the
condition that the Government of the Republic of the
Philippines will use the parcels of land hereby donated
for street purposes only and for no other purposes
whatsoever; it being expressly understood that should
the Government of the Republic of the Philippines
violate the condition hereby imposed upon it, the title
to the land hereby donated shall, upon such violation,
ipso facto revert to the DONOR, JOSE C. ZULUETA.
(Emphasis supplied.)
which is onerous, the donation in question is a contract; that said
donation or contract is "absolutely forbidden by the Constitution"
and consequently "illegal", for Article 1409 of the Civil Code of the
Philippines, declares in existence and void from the very
beginning contracts "whose cause, objector purpose is contrary to
law, morals . . . or public policy"; that the legality of said donation
may not be contested, however, by petitioner herein, because his
"interest are not directly affected" thereby; and that, accordingly,
the appropriation in question "should be upheld" and the case
dismissed.
At the outset, it should be noted that we are concerned with a
decision granting the aforementioned motions to dismiss, which
as much, are deemed to have admitted hypothetically the
allegations of fact made in the petition of appellant herein.
According to said petition, respondent Zulueta is the owner of
several parcels of residential land situated in Pasig, Rizal, and
TROPANG POTCHI
known as the Antonio Subdivision, certain portions of which had
been reserved for the projected feeder roads aforementioned,
which, admittedly, were private property of said respondent
when Republic Act No. 920, appropriating P85,000.00 for the
"construction, reconstruction, repair, extension and
improvement" of said roads, was passed by Congress, as well as
when it was approved by the President on June 20, 1953. The
petition further alleges that the construction of said roads, to be
undertaken with the aforementioned appropriation of
P85,000.00, would have the effect of relieving respondent Zulueta
of the burden of constructing his subdivision streets or roads at
his own expenses, 1and would "greatly enhance or increase the
value of the subdivision" of said respondent. The lower court held
that under these circumstances, the appropriation in question
was "clearly for a private, not a public purpose."
Respondents do not deny the accuracy of this conclusion, which is
self-evident. 2However, respondent Zulueta contended, in his
motion to dismiss that:
A law passed by Congress and approved by the
President can never be illegal because Congress is the
source of all laws . . . Aside from the fact that movant
is not aware of any law which makes illegal the
appropriation of public funds for the improvement of
what we, in the meantime, may assume as private
property . . . (Record on Appeal, p. 33.)
The first proposition must be rejected most emphatically, it being
inconsistent with the nature of the Government established under
the Constitution of the Republic of the Philippines and the system
of checks and balances underlying our political structure.
Moreover, it is refuted by the decisions of this Court invalidating
legislative enactments deemed violative of the Constitution or
organic laws. 3
As regards the legal feasibility of appropriating public funds for a
public purpose, the principle according to Ruling Case Law, is this:
It is a general rule that the legislature is without power
to appropriate public revenue for anything but a public
purpose. . . . It is the essential character of the direct
object of the expenditure which must determine its
validity as justifying a tax, and not the magnitude of
the interest to be affected nor the degree to which the
general advantage of the community, and thus the
88
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
public welfare, may be ultimately benefited by their
promotion. Incidental to the public or to the state,
which results from the promotion of private interest
and the prosperity of private enterprises or business,
does not justify their aid by the use public money. (25
R.L.C. pp. 398-400; Emphasis supplied.)
The rule is set forth in Corpus JurisSecundum in the following
language:
In accordance with the rule that the taxing power must
be exercised for public purposes only,
discussed suprasec. 14, money raised by taxation can
be expended only for public purposes and not for the
advantage of private individuals. (85 C.J.S. pp. 645-646;
emphasis supplied.)
Explaining the reason underlying said rule, Corpus JurisSecundum
states:
Generally, under the express or implied provisions of
the constitution, public funds may be used only for
public purpose. The right of the legislature to
appropriate funds is correlative with its right to tax,
and, under constitutional provisions against taxation
except for public purposes and prohibiting the
collection of a tax for one purpose and the devotion
thereof to another purpose, no appropriation of state
funds can be made for other than for a public purpose.
xxx           x xx          x xx
The test of the constitutionality of a statute requiring
the use of public funds is whether the statute is
designed to promote the public interest, as opposed to
the furtherance of the advantage of individuals,
although each advantage to individuals
might incidentally serve the public. (81 C.J.S. pp. 1147;
emphasis supplied.)
Needless to say, this Court is fully in accord with the foregoing
views which, apart from being patently sound, are a necessary
corollary to our democratic system of government, which, as
such, exists primarily for the promotion of the general welfare.
Besides, reflecting as they do, the established jurisprudence in the
United States, after whose constitutional system ours has been
patterned, said views and jurisprudence are, likewise, part and
parcel of our own constitutional law.lawphil.net
This notwithstanding, the lower court felt constrained to uphold
the appropriation in question, upon the ground that petitioner
may not contest the legality of the donation above referred to
because the same does not affect him directly. This conclusion is,
presumably, based upon the following premises, namely: (1) that,
if valid, said donation cured the constitutional infirmity of the
aforementioned appropriation; (2) that the latter may not be
annulled without a previous declaration of unconstitutionality of
the said donation; and (3) that the rule set forth in Article 1421 of
the Civil Code is absolute, and admits of no exception. We do not
agree with these premises.
The validity of a statute depends upon the powers of Congress at
the time of its passage or approval, not upon events occurring, or
acts performed, subsequently thereto, unless the latter consists of
an amendment of the organic law, removing, with retrospective
operation, the constitutional limitation infringed by said statute.
Referring to the P85,000.00 appropriation for the projected
feeder roads in question, the legality thereof depended upon
whether said roads were public or private property when the bill,
which, latter on, became Republic Act 920, was passed by
Congress, or, when said bill was approved by the President and
the disbursement of said sum became effective, or on June 20,
1953 (see section 13 of said Act). Inasmuch as the land on which
the projected feeder roads were to be constructed belonged then
to respondent Zulueta, the result is that said appropriation sought
a private purpose, and hence, was null and void. 4 The donation
to the Government, over five (5) months after the approval and
effectivity of said Act, made, according to the petition, for the
purpose of giving a "semblance of legality", or legalizing, the
appropriation in question, did not cure its aforementioned basic
defect. Consequently, a judicial nullification of said donation need
not precede the declaration of unconstitutionality of said
appropriation.
Again, Article 1421 of our Civil Code, like many other statutory
enactments, is subject to exceptions. For instance, the creditors of
a party to an illegal contract may, under the conditions set forth in
Article 1177 of said Code, exercise the rights and actions of the
latter, except only those which are inherent in his person,
including therefore, his right to the annulment of said contract,
TROPANG POTCHI
even though such creditors are not affected by the same, except
indirectly, in the manner indicated in said legal provision.
Again, it is well-stated that the validity of a statute may be
contested only by one who will sustain a direct injury in
consequence of its enforcement. Yet, there are many decisions
nullifying, at the instance of taxpayers, laws providing for the
disbursement of public funds, 5upon the theory that "the
expenditure of public funds by an officer of the State for the
purpose of administering an unconstitutional act constitutes
a misapplication of such funds," which may be enjoined at the
request of a taxpayer. 6Although there are some decisions to the
contrary, 7the prevailing view in the United States is stated in the
American Jurisprudence as follows:
In the determination of the degree of interest essential
to give the requisite standing to attack the
constitutionality of a statute, the general rule is that
not only persons individually affected, but
also taxpayers, have sufficient interest in preventing
the illegal expenditure of moneys raised by taxation
and may therefore question the constitutionality of
statutes requiring expenditure of public moneys. (11
Am. Jur. 761; emphasis supplied.)
However, this view was not favored by the Supreme Court of the
U.S. in Frothingham vs. Mellon (262 U.S. 447), insofar
as federal laws are concerned, upon the ground that the
relationship of a taxpayer of the U.S. to its Federal Government is
different from that of a taxpayer of a municipal corporation to its
government. Indeed, under thecomposite system of government
existing in the U.S., the states of the Union are integral part of the
Federation from an international viewpoint, but, each state
enjoys internally a substantial measure of sovereignty, subject to
the limitations imposed by the Federal Constitution. In fact, the
same was made by representatives of each state of the Union,
not of the people of the U.S., except insofar as the former
represented the people of the respective States, and the people
of each State has, independently of that of the others, ratified
said Constitution. In other words, the Federal Constitution and the
Federal statutes have become binding upon the people of the U.S.
in consequence of an act of, and, in this sense, through the
respective states of the Union of which they are citizens. The
peculiar nature of the relation between said people and the
Federal Government of the U.S. is reflected in the election of its
President, who is chosen directly, not by the people of the U.S.,
89
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
but by electors chosen by each State, in such manner as the
legislature thereof may direct (Article II, section 2, of the Federal
Constitution).lawphi1.net
The relation between the people of the Philippines and its
taxpayers, on the other hand, and the Republic of the Philippines,
on the other, is not identical to that obtaining between the people
and taxpayers of the U.S. and its Federal Government. It is closer,
from a domestic viewpoint, to that existing between the people
and taxpayers of each state and the government thereof, except
that the authority of the Republic of the Philippines over the
people of the Philippines is more fully direct than that of the
states of the Union, insofar as the simple and unitary type of our
national government is not subject to limitations analogous to
those imposed by the Federal Constitution upon the states of the
Union, and those imposed upon the Federal Government in the
interest of the Union. For this reason, the rule recognizing the
right of taxpayers to assail the constitutionality of a legislation
appropriating local or state public funds — which has been upheld
by the Federal Supreme Court (Crampton vs. Zabriskie, 101 U.S.
601) — has greater application in the Philippines than that
adopted with respect to acts of Congress of the United States
appropriating federal funds.
Indeed, in the Province of Tayabas vs. Perez (56 Phil., 257),
involving the expropriation of a land by the Province of Tayabas,
two (2) taxpayers thereof were allowed to intervene for the
purpose of contesting the price being paid to the owner thereof,
as unduly exorbitant. It is true that in Custodio vs. President of the
Senate (42 Off. Gaz., 1243), a taxpayer and employee of the
Government was not permitted to question the constitutionality
of an appropriation for backpay of members of Congress.
However, in Rodriguez vs. Treasurer of the Philippines and
Barredo vs.Commission on Elections (84 Phil., 368; 45 Off. Gaz.,
4411), we entertained the action of taxpayers impugning the
validity of certain appropriations of public funds, and invalidated
the same. Moreover, the reason that impelled this Court to take
such position in said two (2) cases — the importance of the issues
therein raised — is present in the case at bar. Again, like the
petitioners in the Rodriguez and Barredo cases, petitioner herein
is not merely a taxpayer. The Province of Rizal, which he
represents officially as its Provincial Governor, is our most
populated political subdivision, 8and, the taxpayers therein bear a
substantial portion of the burden of taxation, in the Philippines.
Hence, it is our considered opinion that the circumstances
surrounding this case sufficiently justify petitioners action in
contesting the appropriation and donation in question; that this
action should not have been dismissed by the lower court; and
that the writ of preliminary injunction should have been
maintained.
Wherefore, the decision appealed from is hereby reversed, and
the records are remanded to the lower court for further
proceedings not inconsistent with this decision, with the costs of
this instance against respondent Jose C. Zulueta. It is so ordered.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes,
J.B.L., Barrera, Gutierrez David, Paredes, and Dizon, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4817             May 26, 1954
SILVESTER M. PUNSALAN, ET AL., plaintiffs-appellants, 
vs.
THE MUNICIPAL BOARD OF THE CITY OF MANILA, ET
AL., defendants-appellants.
Calanog and Alafriz for plaintiffs-appellants.
City Fiscal Eugenio Angeles and Assistant Fiscal Eulogio S. Serreno
for defendants-appellants.
REYES, J.:
This suit was commenced in the Court of First Instance of Manila
by two lawyers, a medical practitioner, a public accountant, a
dental surgeon and a pharmacist, purportedly "in their own behalf
and in behalf of other professionals practising in the City of
Manila who may desire to join it." Object of the suit is the
annulment of Ordinance No. 3398 of the City of Manila together
with the provision of the Manila charter authorizing it and the
refund of taxes collected under the ordinance but paid under
protest.
TROPANG POTCHI
The ordinance in question, which was approved by the municipal
board of the City of Manila on July 25, 1950, imposes a municipal
occupation tax on persons exercising various professions in the
city and penalizes non-payment of the tax "by a fine of not more
than two hundred pesos or by imprisonment of not more than six
months, or by both such fine and imprisonment in the discretion
of the court." Among the professions taxed were those to which
plaintiffs belong. The ordinance was enacted pursuant to
paragraph (1) of section 18 of the Revised Charter of the City of
Manila (as amended by Republic Act No. 409), which empowers
the Municipal Board of said city to impose a municipal occupation
tax, not to exceed P50 per annum, on persons engaged in the
various professions above referred to.
Having already paid their occupation tax under section 201 of the
National Internal Revenue Code, plaintiffs, upon being required to
pay the additional tax prescribed in the ordinance, paid the same
under protest and then brought the present suit for the purpose
already stated. The lower court upheld the validity of the
provision of law authorizing the enactment of the ordinance but
declared the ordinance itself illegal and void on the ground that
the penalty there in provided for non-payment of the tax was not
legally authorized. From this decision both parties appealed to
this Court, and the only question they have presented for our
determination is whether this ruling is correct or not, for though
the decision is silent on the refund of taxes paid plaintiffs make no
assignment of error on this point.
To begin with defendants' appeal, we find that the lower court
was in error in saying that the imposition of the penalty provided
for in the ordinance was without the authority of law. The last
paragraph (kk) of the very section that authorizes the enactment
of this tax ordinance (section 18 of the Manila Charter) in express
terms also empowers the Municipal Board "to fix penalties for the
violation of ordinances which shall not exceed to(sic) two hundred
pesos fine or six months" imprisonment, or both such fine and
imprisonment, for a single offense." Hence, the pronouncement
below that the ordinance in question is illegal and void because it
imposes a penalty not authorized by law is clearly without basis.
As to plaintiffs' appeal, the contention in substance is that this
ordinance and the law authorizing it constitute class legislation,
are unjust and oppressive, and authorize what amounts to double
taxation.
90
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
In raising the hue and cry of "class legislation", the burden of
plaintiffs' complaint is not that the professions to which they
respectively belong have been singled out for the imposition of
this municipal occupation tax; and in any event, the Legislature
may, in its discretion, select what occupations shall be taxed, and
in the exercise of that discretion it may tax all, or it may select for
taxation certain classes and leave the others untaxed. (Cooley on
Taxation, Vol. 4, 4th ed., pp. 3393-3395.) Plaintiffs' complaint is
that while the law has authorized the City of Manila to impose the
said tax, it has withheld that authority from other chartered cities,
not to mention municipalities. We do not think it is for the courts
to judge what particular cities or municipalities should be
empowered to impose occupation taxes in addition to those
imposed by the National Government. That matter is peculiarly
within the domain of the political departments and the courts
would do well not to encroach upon it. Moreover, as the seat of
the National Government and with a population and volume of
trade many times that of any other Philippine city or municipality,
Manila, no doubt, offers a more lucrative field for the practice of
the professions, so that it is but fair that the professionals in
Manila be made to pay a higher occupation tax than their
brethren in the provinces.
Plaintiffs brand the ordinance unjust and oppressive because they
say that it creates discrimination within a class in that while
professionals with offices in Manila have to pay the tax, outsiders
who have no offices in the city but practice their profession
therein are not subject to the tax. Plaintiffs make a distinction that
is not found in the ordinance. The ordinance imposes the tax
upon every person "exercising" or "pursuing" — in the City of
Manila naturally — any one of the occupations named, but does
not say that such person must have his office in Manila. What
constitutes exercise or pursuit of a profession in the city is a
matter of judicial determination. The argument against double
taxation may not be invoked where one tax is imposed by the
state and the other is imposed by the city (1 Cooley on Taxation,
4th ed., p. 492), it being widely recognized that there is nothing
inherently obnoxious in the requirement that license fees or taxes
be exacted with respect to the same occupation, calling or activity
by both the state and the political subdivisions thereof. (51 Am.
Jur., 341.)
In view of the foregoing, the judgment appealed from is reversed
in so far as it declares Ordinance No. 3398 of the City of Manila
illegal and void and affirmed in so far as it holds the validity of the
provision of the Manila charter authorizing it. With costs against
plaintiffs-appellants.
Pablo, Bengzon, Montemayor, Jugo, Bautista Angelo, Labrador,
and Concepcion, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19201             June 16, 1965
REV. FR. CASIMIRO LLADOC, petitioner, 
vs.
The COMMISSIONER OF INTERNAL REVENUE and The COURT of
TAX APPEALS, respondents.
Hilado and Hilado for petitioner.
Office of the Solicitor General for respondents.
PAREDES, J.:
Sometime in 1957, the M.B. Estate, Inc., of Bacolod City, donated
P10,000.00 in cash to Rev. Fr. Crispin Ruiz, then parish priest of
Victorias, Negros Occidental, and predecessor of herein
petitioner, for the construction of a new Catholic Church in the
locality. The total amount was actually spent for the purpose
intended.
On March 3, 1958, the donor M.B. Estate, Inc., filed the donor's
gift tax return. Under date of April 29, 1960, the respondent
Commissioner of Internal Revenue issued an assessment for
donee's gift tax against the Catholic Parish of Victorias, Negros
Occidental, of which petitioner was the priest. The tax amounted
to P1,370.00 including surcharges, interests of 1% monthly from
May 15, 1958 to June 15, 1960, and the compromise for the late
filing of the return.
Petitioner lodged a protest to the assessment and requested the
withdrawal thereof. The protest and the motion for
reconsideration presented to the Commissioner of Internal
Revenue were denied. The petitioner appealed to the Court of Tax
Appeals on November 2, 1960. In the petition for review, the Rev.
Fr. CasimiroLladoc claimed, among others, that at the time of the
donation, he was not the parish priest in Victorias; that there is no
legal entity or juridical person known as the "Catholic Parish Priest
of Victorias," and, therefore, he should not be liable for the
donee's gift tax. It was also asserted that the assessment of the
TROPANG POTCHI
gift tax, even against the Roman Catholic Church, would not be
valid, for such would be a clear violation of the provisions of the
Constitution.
After hearing, the CTA rendered judgment, the pertinent portions
of which are quoted below:
... . Parish priests of the Roman Catholic Church under
canon laws are similarly situated as its Archbishops and
Bishops with respect to the properties of the church
within their parish. They are the guardians,
superintendents or administrators of these properties,
with the right of succession and may sue and be sued.
xxx           x xx           x xx
The petitioner impugns the, fairness of the assessment
with the argument that he should not be held liable for
gift taxes on donation which he did not receive
personally since he was not yet the parish priest of
Victorias in the year 1957 when said donation was
given. It is intimated that if someone has to pay at all,
it should be petitioner's predecessor, the Rev. Fr.
Crispin Ruiz, who received the donation in behalf of
the Catholic parish of Victorias or the Roman Catholic
Church. Following petitioner's line of thinking, we
should be equally unfair to hold that the assessment
now in question should have been addressed to, and
collected from, the Rev. Fr. Crispin Ruiz to be paid from
income derived from his present parish where ever it
may be. It does not seem right to indirectly burden the
present parishioners of Rev. Fr. Ruiz for donee's gift tax
on a donation to which they were not benefited.
xxx           x xx           x xx
We saw no legal basis then as we see none now, to
include within the Constitutional exemption, taxes
which partake of the nature of an excise upon the use
made of the properties or upon the exercise of the
privilege of receiving the properties. (Phipps vs.
Commissioner of Internal Revenue, 91 F [2d] 627;
1938, 302 U.S. 742.)
It is a cardinal rule in taxation that exemptions from
payment thereof are highly disfavored by law, and the
party claiming exemption must justify his claim by
a clear, positive, or express grant of such privilege by
law. (Collector vs. Manila Jockey Club, G.R. No. L-8755,
March 23, 1956; 53 O.G. 3762.)
91
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
The phrase "exempt from taxation" as employed in
Section 22(3), Article VI of the Constitution of the
Philippines, should not be interpreted to mean
exemption from all kinds of taxes. Statutes exempting
charitable and religious property from taxation should
be construed fairly though strictly and in such manner
as to give effect to the main intent of the lawmakers.
(Roman Catholic Church vs. Hastrings 5 Phil. 701.)
xxx           x xx           x xx
WHEREFORE, in view of the foregoing considerations,
the decision of the respondent Commissioner of
Internal Revenue appealed from, is hereby affirmed
except with regard to the imposition of the
compromise penalty in the amount of P20.00
(Collector of Internal Revenue v. U.S.T., G.R. No. L-
11274, Nov. 28, 1958); ..., and the petitioner, the Rev.
Fr. CasimiroLladoc is hereby ordered to pay to the
respondent the amount of P900.00 as donee's gift tax,
plus the surcharge of five per centum (5%) as ad
valorem penalty under Section 119 (c) of the Tax Code,
and one per centum (1%) monthly interest from May
15, 1958 to the date of actual payment. The surcharge
of 25% provided in Section 120 for failure to file a
return may not be imposed as the failure to file a
return was not due to willful neglect.( ... ) No costs.
The above judgment is now before us on appeal, petitioner
assigning two (2) errors allegedly committed by the Tax Court, all
of which converge on the singular issue of whether or not
petitioner should be liable for the assessed donee's gift tax on the
P10,000.00 donated for the construction of the Victorias Parish
Church.
Section 22 (3), Art. VI of the Constitution of the Philippines,
exempts from taxation cemeteries, churches and parsonages or
convents, appurtenant thereto, and all lands, buildings, and
improvements used exclusively for religious purposes. The
exemption is only from the payment of taxes assessed on such
properties enumerated, as property taxes, as contra distinguished
from excise taxes. In the present case, what the Collector
assessed was a donee's gift tax; the assessment was not on the
properties themselves. It did not rest upon general ownership; it
was an excise upon the use made of the properties, upon the
exercise of the privilege of receiving the properties (Phipps vs.
Com. of Int. Rec. 91 F 2d 627). Manifestly, gift tax is not within the
exempting provisions of the section just mentioned. A gift tax is
not a property tax, but an excise tax imposed on the transfer of
property by way of giftintervivos, the imposition of which on
property used exclusively for religious purposes, does not
constitute an impairment of the Constitution. As well observed by
the learned respondent Court, the phrase "exempt from
taxation," as employed in the Constitution (supra) should not be
interpreted to mean exemption from all kinds of taxes. And there
being no clear, positive or express grant of such privilege by law,
in favor of petitioner, the exemption herein must be denied.
The next issue which readily presents itself, in view of petitioner's
thesis, and Our finding that a tax liability exists, is, who should be
called upon to pay the gift tax? Petitioner postulates that he
should not be liable, because at the time of the donation he was
not the priest of Victorias. We note the merit of the above claim,
and in order to put things in their proper light, this Court, in its
Resolution of March 15, 1965, ordered the parties to show cause
why the Head of the Diocese to which the parish of Victorias
pertains, should not be substituted in lieu of petitioner Rev. Fr.
CasimiroLladoc it appearing that the Head of such Diocese is the
real party in interest. The Solicitor General, in representation of
the Commissioner of Internal Revenue, interposed no objection to
such a substitution. Counsel for the petitioner did not also offer
objection thereto.
On April 30, 1965, in a resolution, We ordered the Head of the
Diocese to present whatever legal issues and/or defenses he
might wish to raise, to which resolution counsel for petitioner,
who also appeared as counsel for the Head of the Diocese, the
Roman Catholic Bishop of Bacolod, manifested that it was
submitting itself to the jurisdiction and orders of this Court and
that it was presenting, by reference, the brief of petitioner Rev.
Fr. CasimiroLladoc as its own and for all purposes.
In view here of and considering that as heretofore stated, the
assessment at bar had been properly made and the imposition of
the tax is not a violation of the constitutional provision exempting
churches, parsonages or convents, etc. (Art VI, sec. 22 [3],
Constitution), the Head of the Diocese, to which the parish
Victorias Pertains, is liable for the payment thereof.
The decision appealed from should be, as it is hereby affirmed
insofar as tax liability is concerned; it is modified, in the sense that
petitioner herein is not personally liable for the said gift tax, and
that the Head of the Diocese, herein substitute petitioner, should
pay, as he is presently ordered to pay, the said gift tax, without
special, pronouncement as to costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Dizon,
Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.
Barrera, J., took no part
G.R. No. L-39086 June 15, 1988
TROPANG POTCHI
ABRA VALLEY COLLEGE, INC., represented by PEDRO V.
BORGONIA, petitioner, 
vs.
HON. JUAN P. AQUINO, Judge, Court of First Instance, Abra;
ARMIN M. CARIAGA, Provincial Treasurer, Abra; GASPAR V.
BOSQUE, Municipal Treasurer, Bangued, Abra; HEIRS OF
PATERNO MILLARE,respondents.
 
PARAS, J.:
This is a petition for review on certiorari of the decision * of the
defunct Court of First Instance of Abra, Branch I, dated June 14,
1974, rendered in Civil Case No. 656, entitled "Abra Valley Junior
College, Inc., represented by Pedro V. Borgonia, plaintiff vs. Armin
M. Cariaga as Provincial Treasurer of Abra, Gaspar V. Bosque as
Municipal Treasurer of Bangued, Abra and Paterno Millare,
defendants," the decretal portion of which reads:
IN VIEW OF ALL THE FOREGOING, the Court
hereby declares:
That the distraint seizure and sale by the
Municipal Treasurer of Bangued, Abra, the
Provincial Treasurer of said province against
the lot and building of the Abra Valley
Junior College, Inc., represented by Director
Pedro Borgonia located at Bangued, Abra, is
valid;
That since the school is not exempt from
paying taxes, it should therefore pay all
back taxes in the amount of P5,140.31 and
back taxes and penalties from the
promulgation of this decision;
That the amount deposited by the plaintaff
him the sum of P60,000.00 before the trial,
be confiscated to apply for the payment of
the back taxes and for the redemption of
the property in question, if the amount is
less than P6,000.00, the remainder must be
returned to the Director of Pedro Borgonia,
who represents the plaintiff herein;
That the deposit of the Municipal Treasurer
in the amount of P6,000.00 also before the
trial must be returned to said Municipal
Treasurer of Bangued, Abra;
92
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

And finally the case is hereby ordered
dismissed with costs against the plaintiff.
SO ORDERED. (Rollo, pp. 22-23)
Petitioner, an educational corporation and institution of higher
learning duly incorporated with the Securities and Exchange
Commission in 1948, filed a complaint (Annex "1" of Answer by
the respondents Heirs of Paterno Millare; Rollo, pp. 95-97) on July
10, 1972 in the court a quo to annul and declare void the "Notice
of Seizure' and the "Notice of Sale" of its lot and building located
at Bangued, Abra, for non-payment of real estate taxes and
penalties amounting to P5,140.31. Said "Notice of Seizure" of the
college lot and building covered by Original Certificate of Title No.
Q-83 duly registered in the name of petitioner, plaintiff below, on
July 6, 1972, by respondents Municipal Treasurer and Provincial
Treasurer, defendants below, was issued for the satisfaction of
the said taxes thereon. The "Notice of Sale" was caused to be
served upon the petitioner by the respondent treasurers on July
8, 1972 for the sale at public auction of said college lot and
building, which sale was held on the same date. Dr. Paterno
Millare, then Municipal Mayor of Bangued, Abra, offered the
highest bid of P6,000.00 which was duly accepted. The certificate
of sale was correspondingly issued to him.
On August 10, 1972, the respondent Paterno Millare (now
deceased) filed through counstel a motion to dismiss the
complaint.
On August 23, 1972, the respondent Provincial Treasurer and
Municipal Treasurer, through then Provincial Fiscal Loreto C.
Roldan, filed their answer (Annex "2" of Answer by the
respondents Heirs of Patemo Millare; Rollo, pp. 98-100) to the
complaint. This was followed by an amended answer (Annex
"3," ibid, Rollo, pp. 101-103) on August 31, 1972.
On September 1, 1972 the respondent Paterno Millare filed his
answer (Annex "5," ibid; Rollo, pp. 106-108).
STIPULATION OF FACTS
COME NOW the parties, assisted by counsels, and to this
Honorable Court respectfully enter into the following agreed
stipulation of facts:
1. That the personal circumstances of the parties as stated in
paragraph 1 of the complaint is admitted; but the particular
person of Mr. Armin M. Cariaga is to be substituted, however, by
anyone who is actually holding the position of Provincial Treasurer
of the Province of Abra;
2. That the plaintiff Abra Valley Junior College, Inc. is the owner of
the lot and buildings thereon located in Bangued, Abra under
Original Certificate of Title No. 0-83;
3. That the defendant Gaspar V. Bosque, as Municipal treasurer of
Bangued, Abra caused to be served upon the Abra Valley Junior
College, Inc. a Notice of Seizure on the property of said school
under Original Certificate of Title No. 0-83 for the satisfaction of
real property taxes thereon, amounting to P5,140.31; the Notice
of Seizure being the one attached to the complaint as Exhibit A;
4. That on June 8, 1972 the above properties of the Abra Valley
Junior College, Inc. was sold at public auction for the satisfaction
of the unpaid real property taxes thereon and the same was sold
to defendant Paterno Millare who offered the highest bid of
P6,000.00 and a Certificate of Sale in his favor was issued by the
defendant Municipal Treasurer.
5. That all other matters not particularly and specially covered by
this stipulation of facts will be the subject of evidence by the
parties.
WHEREFORE, it is respectfully prayed of the Honorable Court to
consider and admit this stipulation of facts on the point agreed
upon by the parties.
Abra and the Municipal 
Treasurer of Bangued, Abra
Sgd. Demetrio V. Pre 
Typ. DEMETRIO V. PRE 
Attorney for
Defendant 
Paterno Millare (Rollo, pp. 17-18)
Aside from the Stipulation of Facts, the trial court among others,
found the following: (a) that the school is recognized by the
government and is offering Primary, High School and College
Courses, and has a school population of more than one thousand
students all in all; (b) that it is located right in the heart of the
town of Bangued, a few meters from the plaza and about 120
meters from the Court of First Instance building; (c) that the
elementary pupils are housed in a two-storey building across the
street; (d) that the high school and college students are housed in
the main building; (e) that the Director with his family is in the
second floor of the main building; and (f) that the annual gross
income of the school reaches more than one hundred thousand
pesos.
From all the foregoing, the only issue left for the Court to
determine and as agreed by the parties, is whether or not the lot
and building in question are used exclusively for educational
purposes. (Rollo, p. 20)
The succeeding Provincial Fiscal, Hon. Jose A. Solomon and his
Assistant, Hon. Eustaquio Z. Montero, filed a Memorandum for
the Government on March 25, 1974, and a Supplemental
Memorandum on May 7, 1974, wherein they opined "that based
on the evidence, the laws applicable, court decisions and
jurisprudence, the school building and school lot used for
educational purposes of the Abra Valley College, Inc., are
exempted from the payment of taxes." (Annexes "B," "B-1" of
Petition; Rollo, pp. 24-49; 44 and 49).

On October 12, 1972, with the aforesaid sale of the school
premises at public auction, the respondent Judge, Hon. Juan P.
Aquino of the Court of First Instance of Abra, Branch I, ordered
(Annex "6," ibid; Rollo, pp. 109-110) the respondents provincial
and municipal treasurers to deliver to the Clerk of Court the
proceeds of the auction sale. Hence, on December 14, 1972,
petitioner, through Director Borgonia, deposited with the trial
court the sum of P6,000.00 evidenced by PNB Check No. 904369.
On April 12, 1973, the parties entered into a stipulation of facts
adopted and embodied by the trial court in its questioned
decision. Said Stipulations reads:
Bangued, Abra, April 12, 1973. Nonetheless, the trial court disagreed because of the use of the
second floor by the Director of petitioner school for residential
Sgd. Agripino Brillantes  purposes. He thus ruled for the government and rendered the
Typ AGRIPINO BRILLANTES  assailed decision.
Attorney for Plaintiff
After having been granted by the trial court ten (10) days from
Sgd. Loreto Roldan  August 6, 1974 within which to perfect its appeal (Per Order dated
Typ LORETO ROLDAN  August 6, 1974; Annex "G" of Petition; Rollo, p. 57) petitioner
Provincial Fiscal  instead availed of the instant petition for review
Counsel for Defendants  on certiorari with prayer for preliminary injunction before this
Provincial Treasurer of  Court, which petition was filed on August 17, 1974 (Rollo, p.2).
93
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
In the resolution dated August 16, 1974, this Court resolved to
give DUE COURSE to the petition (Rollo, p. 58). Respondents were
required to answer said petition (Rollo, p. 74).
Petitioner raised the following assignments of error:
I
THE COURT A QUO ERRED IN SUSTAINING AS VALID THE SEIZURE
AND SALE OF THE COLLEGE LOT AND BUILDING USED FOR
EDUCATIONAL PURPOSES OF THE PETITIONER.
II
THE COURT A QUO ERRED IN DECLARING THAT THE COLLEGE LOT
AND BUILDING OF THE PETITIONER ARE NOT USED EXCLUSIVELY
FOR EDUCATIONAL PURPOSES MERELY BECAUSE THE COLLEGE
PRESIDENT RESIDES IN ONE ROOM OF THE COLLEGE BUILDING.
III
THE COURT A QUO ERRED IN DECLARING THAT THE COLLEGE LOT
AND BUILDING OF THE PETITIONER ARE NOT EXEMPT FROM
PROPERTY TAXES AND IN ORDERING PETITIONER TO PAY
P5,140.31 AS REALTY TAXES.
IV
THE COURT A QUO ERRED IN ORDERING THE CONFISCATION OF
THE P6,000.00 DEPOSIT MADE IN THE COURT BY PETITIONER AS
PAYMENT OF THE P5,140.31 REALTY TAXES. (See Brief for the
Petitioner, pp. 1-2)
The main issue in this case is the proper interpretation of the
phrase "used exclusively for educational purposes."
Petitioner contends that the primary use of the lot and building
for educational purposes, and not the incidental use thereof,
determines and exemption from property taxes under Section 22
(3), Article VI of the 1935 Constitution. Hence, the seizure and sale
of subject college lot and building, which are contrary thereto as
well as to the provision of Commonwealth Act No. 470, otherwise
known as the Assessment Law, are without legal basis and
therefore void.
On the other hand, private respondents maintain that the college
lot and building in question which were subjected to seizure and
sale to answer for the unpaid tax are used: (1) for the educational
purposes of the college; (2) as the permanent residence of the
President and Director thereof, Mr. Pedro V. Borgonia, and his
family including the in-laws and grandchildren; and (3) for
commercial purposes because the ground floor of the college
building is being used and rented by a commercial establishment,
the Northern Marketing Corporation (See photograph attached as
Annex "8" (Comment; Rollo, p. 90]).
Due to its time frame, the constitutional provision which finds
application in the case at bar is Section 22, paragraph 3, Article VI,
of the then 1935 Philippine Constitution, which expressly grants
exemption from realty taxes for "Cemeteries, churches and
parsonages or convents appurtenant thereto, and all lands,
buildings, and improvements used exclusively for religious,
charitable or educational purposes ...
Relative thereto, Section 54, paragraph c, Commonwealth Act No.
470 as amended by Republic Act No. 409, otherwise known as the
Assessment Law, provides:
The following are exempted from real
property tax under the Assessment Law:
xxx xxx xxx
(c) churches and parsonages or convents
appurtenant thereto, and all lands,
buildings, and improvements used
exclusively for religious, charitable, scientific
or educational purposes.
xxx xxx xxx
In this regard petitioner argues that the primary use of the school
lot and building is the basic and controlling guide, norm and
standard to determine tax exemption, and not the mere
incidental use thereof.
As early as 1916 in YMCA of Manila vs. Collector of lnternal
Revenue, 33 Phil. 217 [1916], this Court ruled that while it may be
true that the YMCA keeps a lodging and a boarding house and
maintains a restaurant for its members, still these do not
constitute business in the ordinary acceptance of the word, but an
institution used exclusively for religious, charitable and
educational purposes, and as such, it is entitled to be exempted
from taxation.
In the case of Bishop of Nueva Segovia v. Provincial Board of
Ilocos Norte, 51 Phil. 352 [1972], this Court included in the
exemption a vegetable garden in an adjacent lot and another lot
formerly used as a cemetery. It was clarified that the term "used
TROPANG POTCHI
exclusively" considers incidental use also. Thus, the exemption
from payment of land tax in favor of the convent includes, not
only the land actually occupied by the building but also the
adjacent garden devoted to the incidental use of the parish priest.
The lot which is not used for commercial purposes but serves
solely as a sort of lodging place, also qualifies for exemption
because this constitutes incidental use in religious functions.
The phrase "exclusively used for educational purposes" was
further clarified by this Court in the cases of Herrera vs. Quezon
City Board of assessment Appeals, 3 SCRA 186 [1961]
and Commissioner of Internal Revenue vs. Bishop of the
Missionary District, 14 SCRA 991 [1965], thus —
Moreover, the exemption in favor of
property used exclusively for charitable or
educational purposes is 'not limited to
property actually indispensable' therefor
(Cooley on Taxation, Vol. 2, p. 1430), but
extends to facilities which are incidental to
and reasonably necessary for the
accomplishment of said purposes, such as in
the case of hospitals, "a school for training
nurses, a nurses' home, property use to
provide housing facilities for interns,
resident doctors, superintendents, and
other members of the hospital staff, and
recreational facilities for student nurses,
interns, and residents' (84 CJS 6621), such
as "Athletic fields" including "a firm used for
the inmates of the institution. (Cooley on
Taxation, Vol. 2, p. 1430).
The test of exemption from taxation is the use of the property for
purposes mentioned in the Constitution (Apostolic Prefect v. City
Treasurer of Baguio, 71 Phil, 547 [1941]).
It must be stressed however, that while this Court allows a more
liberal and non-restrictive interpretation of the phrase
"exclusively used for educational purposes" as provided for in
Article VI, Section 22, paragraph 3 of the 1935 Philippine
Constitution, reasonable emphasis has always been made that
exemption extends to facilities which are incidental to and
reasonably necessary for the accomplishment of the main
purposes. Otherwise stated, the use of the school building or lot
for commercial purposes is neither contemplated by law, nor by
jurisprudence. Thus, while the use of the second floor of the main
building in the case at bar for residential purposes of the Director
and his family, may find justification under the concept of
incidental use, which is complimentary to the main or primary
purpose—educational, the lease of the first floor thereof to the
94
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Northern Marketing Corporation cannot by any stretch of the
imagination be considered incidental to the purpose of education.
It will be noted however that the aforementioned lease appears
to have been raised for the first time in this Court. That the matter
was not taken up in the to court is really apparent in the decision
of respondent Judge. No mention thereof was made in the
stipulation of facts, not even in the description of the school
building by the trial judge, both embodied in the decision nor as
one of the issues to resolve in order to determine whether or not
said properly may be exempted from payment of real estate taxes
(Rollo, pp. 17-23). On the other hand, it is noteworthy that such
fact was not disputed even after it was raised in this Court.
Indeed, it is axiomatic that facts not raised in the lower court
cannot be taken up for the first time on appeal. Nonetheless, as
an exception to the rule, this Court has held that although a
factual issue is not squarely raised below, still in the interest of
substantial justice, this Court is not prevented from considering a
pivotal factual matter. "The Supreme Court is clothed with ample
authority to review palpable errors not assigned as such if it finds
that their consideration is necessary in arriving at a just decision."
(Perez vs. Court of Appeals, 127 SCRA 645 [1984]).
Under the 1935 Constitution, the trial court correctly arrived at
the conclusion that the school building as well as the lot where it
is built, should be taxed, not because the second floor of the same
is being used by the Director and his family for residential
purposes, but because the first floor thereof is being used for
commercial purposes. However, since only a portion is used for
purposes of commerce, it is only fair that half of the assessed tax
be returned to the school involved.
PREMISES CONSIDERED, the decision of the Court of First Instance
of Abra, Branch I, is hereby AFFIRMED subject to the modification
that half of the assessed tax be returned to the petitioner.
SO ORDERED.
G.R. No. L-98050 March 17, 1994
PHILIPPINE PHOSPHATE FERTILIZER CORPORATION, petitioner, 
vs.
HON. RUBEN D. TORRES, Secretary of Labor and Employment,
HON. RODOLFO S. MILADO, Department of Labor and
Employment Mediator-Arbiter for Region VIII, Tacloban, City,
and PHILPHOS MOVEMENT FOR PROGRESS, INC.
(PMPI), respondents.
Quiroz, Dumas & Henares Law Offices for petitioner.
Seno, Mendoza & Associates for private respondent Philphos
Movement for Progress, Inc.
BELLOSILLO, J.:
PHILIPPINE PHOSPHATE FERTILIZER CORPORATION (PHILPHOS)
assails the decision of the Secretary of Labor of 7 August 1990
affirming the order of the Mediator-Arbiter of 28 March 1990
which directed the immediate conduct of a certification election
among the supervisory, professional or technical, and confidential
employees of petitioner corporation.
On 7 July 1989, Philphos Movement for Progress, Inc. (PMPI for
brevity), filed with the Department of Labor and Employment a
petition for certification election among the supervisory
employees of petitioner, alleging that as a supervisory union duly
registered with the Department of Labor and Employment it was
seeking to represent the supervisory employees of Philippine
Phosphate Fertilizer Corporation.
The petition for certification election filed by PMPI was not
opposed by PHILPHOS. In fact, on 11 August 1989, PHILPHOS
submitted a position paper with the Mediator-Arbiter stating that
its management welcomed the creation of a supervisory
employees' union provided the necessary requisites of law were
properly observed, but exempting from the union
its superintendents who were managerial and not supervisory
employees as they managed a division, subdivision or section, and
were vested with powers or prerogatives to lay down and execute
management policies. PHILPHOS also asserted that
its professional or technical employees were not within the
definition of supervisory employees under the Labor Code as they
were immediately under the direction and supervision of its
superintendents and supervisors. Moreover, the professional and
technical employees did not have a staff of workers under them.
Consequently, petitioner prayed for the exclusion of
its superintendents andprofessional/technical employees from the
PMPI supervisory union.
On 13 October 1989, Mediator-Arbiter Rodolfo S. Milado issued
an order directing the holding of a certification election among
the supervisory employees of petitioner, excluding therefrom the
superintendents and theprofessional and technical employees. He
also directed the parties to attend the pre-election conference on
19 April 1990 for the determination of the mechanics of the
election process and the qualifications and eligibility of those
allowed to vote.
TROPANG POTCHI
On 15 November 1989, PMPI filed an amended petition with the
Mediator-Arbiter wherein it sought to represent not only
the supervisory employees of petitioner but also
its professional/technical and confidential employees. The
amended petition was filed in view of the amendment of the
PMPI Construction which included in its membership
the professional/technical and confidential employees.
On 14 December 1989, the parties therein agreed to submit their
respective position papers and to consider the amended petition
submitted for decision on the basis thereof and related
documents.
On 28 March 1990, Mediator-Arbiter Milado issued an order
granting the petition and directing the holding of a certification
election among the "supervisory, professional (engineers,
analysts, mechanics, accountants, nurses, midwives,
etc.), technical, and confidential employees" 1 to comprise the
proposed bargaining unit.
On 16 April 1990, PHILPHOS appealed the order of 28 March 1990
to the Secretary of Labor and Employment who on 7 August 1990
rendered a decision through Undersecretary Bienvenido
Laguesma dismissing the appeal. PHILPHOS moved for
reconsideration but the same was denied; hence, the instant
petition alleging grave abuse of discretion on the part of public
respondents in rendering the assailed rulings.
On 8 July 1991, this Court issued a temporary restraining order
enjoining respondents from holding the certification election
among petitioner's supervisory, professional/technical,
and confidential employees scheduled on 12 July 1991.
There are two (2) issues raised by petitioner: (1) whether it was
denied due process in the proceedings before respondent
Mediator-Arbiter; and, (2) whether
its professional/technical and confidential employees may validly
join respondent PMPI union which is composed of supervisors.
PHILPHOS claims that it was denied due process when respondent
Mediator-Arbiter granted the amended petition of respondent
PMPI without according PHILPHOS a new opportunity to be heard.
We do not see it the way PHILPHOS does here. The essence of due
process is simply an opportunity to be heard or, as applied to
administrative proceedings, an opportunity to explain one's side
or an opportunity to seek a reconsideration of the action or ruling
complained of. 2 Where, as in the instant case, petitioner
PHILPHOS agreed to file its position paper with the Mediator-
Arbiter and to consider the case submitted for decision on the
basis of the position papers filed by the parties, there was
95
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
sufficient compliance with the requirement of due process, as
petitioner was afforded reasonable opportunity to present its
side. 3 Moreover, petitioner could have, if it so desired, insisted on
a hearing to confront and examine the witnesses of the other
party. But it did
not; 4 instead, it opted to submit its position paper with the
Mediator-Arbiter. Besides, petitioner had all the opportunity to
ventilate its arguments in its appeal to the Secretary of Labor.
As regards the second issue, we are with petitioner that being
a supervisory union, respondent PMPI cannot represent
the professional/technical and confidential employees of
petitioner whose positions we find to be more of the rank and file
than supervisory.
With the enactment in March 1989 of R.A. 6715, employees were
thereunder reclassified into three (3) groups, namely: (a)
managerial employees, (b) supervisory employees, and (c) rank
and file employees. The category of supervisory employees is
once again recognized in the present law.
Article 212, par. (m), of the Labor Code, as amended, provides,
that "(s)upervisory employees are those who, in the interest of
the employer, effectively recommend such managerial actions if
the exercise of such authority is not merely routinary or clerical in
nature but requires the use of independent judgment." The
definition of managerial employees is limited to those having
authority to hire and fire, while those who only recommend
effectively the hiring or firing or transfer of personnel; are
considered closer to rank and file employees. The exclusion
therefore of mid-level executives from the category of managers
has brought about a third classification, the supervisory
employees. The peculiar role of supervisors is such that while they
are not managers, when they recommend action implementing
management policy or ask for the discipline or dismissal of
subordinates, they identify with the interests of the employer and
may act contrary to the interests of the rank and file. 5
In its position paper submitted to the Mediator-Arbiter, petitioner
described the positions and functions of itsprofessional/technical
employees, (engineers, analysts, mechanics, accountants, nurses,
and midwives). The guidelines, which were not refuted by
respondent PMPI, state:
. . . . Professional and Technical positions
are those whose primary duty consists of
the performance of work directly related to
management programs; who customarily,
regularly and routinarily exercise judgment
in the application of concepts, methods,
systems and procedures in their respective
fields of specialization; who regularly and
TROPANG POTCHI
directly assist a managerial and/or the supervisors, then PMPI will turn out to be a rank and
supervisory employee, execute under file union with the supervisors as members.
general supervision, work along specialized
or technical lines requiring special training,
This is precisely the situation which the law prohibits. It would
experience or knowledge, or execute under
create an obvious conflict of views among the members, or at
general supervision special assignments and
least between two (2) groups of members espousing opposing
task . . . . They are immediately under the
interests. The intent of the law is to avoid a situation
direction and supervision of supervisors or
where supervisors would merge with the rank and file, or where
superintendents. They have no men under
the supervisors' labor organization would represent conflicting
them but are regularly called upon by their
interests, especially where, as in the case at bar, the supervisors
supervisors or superintendents on some
will be commingling with those employees whom they directly
technical matters. 6
supervise in their own bargaining unit. Members of the
supervisory union might refuse to carry out disciplinary measures
Moreover, Herculano, A. Duhaylungsod, Personnel Officer of against their co-member rank and file employees. 10
petitioner, attested that there was no community of interests
between the supervisors of petitioner and
Supervisors have the right to form their own union or labor
the professional/technical employees; that as of 25 July 1990,
organization. What the law prohibits is a union whose
personnel records showed that there were 125 supervisors and
membership comprises of supervisors merging with the rank and
271 professional/technical employees; that of the
file employees because this is where conflict of interests may arise
271 professional/technical employees, 150 were directly under
in the areas of discipline, collective bargaining and
and being supervised by supervisors, while the rest were staff
strikes. 11 The professional/technical employees of petitioner
members of superintendents. 7
therefore may join the existing rank and file union, or form a
union separate and distinct from the existing union organized by
The certification of Personnel Officer Duhaylungsod that the rank and file employees of the same company.
its professional/technical employees occupy positions that are
non-supervisory is evidence that said employees belong to
As to the confidential employees of the petitioner, the latter has
the rank and file. 8 Quite obviously, theseprofessional/technical
not shown any proof or compelling reason to exclude them from
employees cannot effectively recommend managerial actions with
joining respondent PMPI and from participating in the
the use of independent judgment because they are under the
certification election, unless these confidential employees are the
supervision of superintendents and supervisors. Because it is
same professional/technical employees whom we find to be
unrefuted that theseprofessional/technical employees are
occupying rank and file positions.
performing non-supervisory functions, hence considered
admitted, they should be classified, at least for purposes of this
case, as rank and file employees. Consequently, WHEREFORE, the petition is GRANTED. The decision of
these professional/technical employees cannot be allowed to join respondent Secretary of Labor of 7 August 1990, as well as the
a union composed of supervisors. Conversely, supervisory order of the respondent Mediator-Arbiter of 28 March 1990, is
employees cannot join a labor organization of employees under SET ASIDE. The professional/technical employees of petitioner
their supervision but may validly form a separate organization of Philippine Phosphate Fertilizer Corporation (PHILPHOS) are
their own. 9 This is provided in Art. 245 of the Labor Code, as declared disqualified from affiliating with respondent Philphos
amended by R.A. No. 6715, to wit: Movement for Progress, Inc. (PMPI).
. . . Managerial employees are not eligible The Department of Labor is directed to order immediately the
to join, assist or form any labor conduct of certification election among the supervisory
organization. Supervisory employees shall employees of petitioner, particularly excluding therefrom its
not be eligible for membership in a labor professional and technical employees.
organization of the rank and file employees
but may join, assist or form separate labor SO ORDERED.
organizations of their own.
G.R. No. 131652 March 9, 1998
Respondent PMPI is supposed to be a union of 125 supervisors. If
the professional/technical employees are included as members,
BAYANI M. ALONTE, petitioner, 
and records show that they are 271 in all or much more than
vs.
96
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

HON. MAXIMO A. SAVELLANO JR., NATIONAL BUREAU OF
INVESTIGATION and PEOPLE OF THE PHILIPPINES, respondents.
G.R. No. 131728 March 9, 1998
BUENAVENTURA CONCEPCION, petitioner, 
vs.
JUDGE MAXIMO SAVELLANO, JR., THE PEOPLE OF THE
PHILIPPINES, and JUVIELYN Y. PUNONGBAYAN, respondents.
 
VITUG, J.:
Pending before this Court are two separate petitions, one filed by
petitioner Bayani M. Alonte, docketed G.R. No. 131652, and the
other by petitioner Buenaventura Concepcion, docketed G.R. No.
131728, that assail the decision of respondent Judge Maximo A.
Savellano, Jr., of the Regional Trial Court ("RTC"), Branch 53, of
Manila finding both petitioners guilty beyond reasonable doubt of
the crime of rape. The two petitions were consolidated.
On 05 December 1996, an information for rape was filed against
petitioners Bayani M. Alonte, an incumbent Mayor of Biñan,
Laguna, and Buenaventura Concepcion predicated on a complaint
filed by Juvie-lyn Punongbayan. The information contained the
following averments; thus:
The case was docketed Criminal Case No. 9619-B and assigned by
raffle to Branch 25 of the RTC of Biñan, Laguna, presided over by
Judge Pablo B. Francisco.
On 13 December 1996, Juvie-lyn Punongbayan, through her
counsel Attorney Remedios C. Balbin, and Assistant Chief State
Prosecutor ("ACSP") Leonardo Guiyab, Jr., filed with the Office of
the Court Administrator a Petition for a Change of Venue
(docketed Administrative Matter No. 97-1-12-RTC) to have the
case transferred and tried by any of the Regional Trial Courts in
Metro Manila.
During the pendency of the petition for change of venue, or on 25
June 1997, Juvie-lyn Punongbayan, assisted by her parents and
counsel, executed an affidavit of desistance, quoted herein in full,
as follows:
AFFIDAVIT OF DESISTANCE
I, JUVIE-LYN YAMBAO PUNONGBAYAN, 17 years of age,
a resident of No. 5 Uranus Street, Congressional
Avenue Subdivision, Quezon City, duly assisted by
private legal counsel and my parents, after having duly
sworn in accordance with law, depose and say:
1. That I am the Complainant in the rape case filed
against Mayor Bayani "Arthur" Alonte of Biñan,
Laguna, with the RTC-Branch 25 of Biñan, Laguna;
5 That I do not blame anyone for the long, judicial
process, I simply wish to stop and live elsewhere with
my family, where we can start life anew, and live
normally once again;
6. That I pray that I be allowed to withdraw my
complaint for rape and the other charge for child
abuse wherein the Five-Man Investigating Panel of the
Office of the State Prosecutor found a prima facie case
although the information has not been filed, and that I
will not at any time revive this, and related cases or file
new cases, whether, criminal, civil, and/or
administrative, here or anywhere in the Philippines;
7 That I likewise realize that the execution of this
Affidavit will put to doubt my credibility as a witness-
complainant;
8. That this is my final decision reached without fear or
favor, premised on a corresponding commitment that
there will be no reprisals in whatever form, against
members of the police force or any other official of
officer, my relatives and friends who extended
assistance to me in whatever way, in my search for
justice.
WHEREOF, I affix my signature this 25 day of June,
1997, in Quezon City.

That on or about September 12, 1996, in Sto. Tomas, (Sgd)

2. That the case has been pending for some time, on
Biñan, Laguna, and within the jurisdiction of this JUVIE-LYN
preliminary issues, specifically, (a) change of venue,
Honorable court, the above named accused, who is the Y.
filed with the Supreme Court; (b) propriety of the
incumbent mayor of Biñan, Laguna after giving PUNONGB
appeal to the Court of Appeals, and after its denial by
complainant-child drinking water which made her dizzy AYAN
said court, brought to the Office of the President, on
and weak, did then and there willfully, unlawfully and
the veracity of the findings of the Five-Man
feloniously have carnal knowledge with said JUVIELYN
Investigating Panel of the State Prosecutor's Office, Complaina
PUNONGBAYAN against her will and consent, to her
and the Secretary of Justice, and (c) a hold-departure nt
damage and prejudice.
order filed with the Biñan Court.
Assisted by:
That accused Buenaventura "Wella" Concepcion
3. That the legal process moves ever so slowly, and
without having participated as principal or accessory
meanwhile, I have already lost two (2) semesters of my
assisted in the commission of the offense by bringing (Sgd) ATTY. REMEDIOS C. BALBIN
college residence. And when the actual trial is held
said complainant child to the rest house of accused
after all the preliminary issues are finally resolved, I
Bayani "Arthur" Alonte at Sto. Tomas, Biñan, Laguna
anticipate a still indefinite suspension of my schooling P
and after receiving the amount of P1,000.00 left her
to attend the hearings; r
alone with Bayani Alonte who subsequently raped her.
i
v
4. That during the entire period since I filed the case,
Contrary to Law. 1 a
my family has lived a most abnormal life: my father
t
and mother had to give up their jobs; my younger
e
brother, who is in fourth grade, had to stop his
schooling, like myself;
97
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
P B. It is thus incorrect for oppositors Alonte and
r Concepcion to contend that the fear of the petitioner,
o her private counsel and her witnesses are too
s generalized if not fabricated. Indeed, the probability
e that in desisting from pursuing her complaint for rape,
c petitioner, a minor, may have succumbed to some
u illicit influence and undue pressure. To prevent
t possible miscarriage of justice is a good excuse to grant
o the petition to transfer the venue of Criminal Case No.
r 9619-B from Biñan, Laguna to the City of Manila.
In the presence of: IN VIEW WHEREOF, the Petition for Change of Venue
from Biñan, Laguna to the City of Manila is granted.
The Executive Judge of RTC Manila is ordered to raffle
(Sgd) PABLO PUNONGBAYAN
Crim. Case No. 9619-B to any of its branches. The judge
to whom Crim. Case No. 9619-B shall be raffled shall
Father resolve the petitioner's Motion to Resume Proceedings
filed in Br. XXV of the RTC of Biñan, Laguna and
(Sgd) JULIE Y. PUNONGBAYAN determine the voluntariness and validity of petitioner's
desistance in light of the opposition of the public
prosecutor, Asst. Chief State Prosecutor Leonardo
Mother
Guiyab. The branch clerk of court of Br. XXV of the RTC
of Biñan, Laguna is ordered to personally deliver to the
SUBSCRIBED AND SWORN to before me this 25 day of Executive Judge of Manila the complete records of
June, 1997, in Quezon City. Crim. Case No. 9619-B upon receipt of this Resolution. 3
(Sgd) On 17 September 1997, the case, now re-docketed Criminal Case
Illegible No. 97-159955 by the Clerk of Court of Manila, was assigned by
raffle to Branch 53, RTC Manila, with respondent Judge Maximo A.
Savellano, Jr., presiding.
Administer
ing
Officer 2 On 07 October 1997, Juvie-lyn Punongbayan, through Attorney
Balbin, submitted to the Manila court a "compliance" where she
reiterated "her decision to abide by her Affidavit of Desistance."
On 28 June 1997, Atty. Ramon C. Casino, on behalf of petitioners,
moved to have the petition for change of venue dismissed on the
ground that it had become moot in view of complainant's affidavit In an Order, dated 09 October 1997, Judge Savellano found
of desistance. On 22 August 1997, ACSP Guiyab filed his comment probable cause for the issuance of warrants for the arrest of
on the motion to dismiss. Guiyab asserted that he was not aware petitioners Alonte and Concepcion "without prejudice to, and
of the desistance of private complainant and opined that the independent of, this Court's separate determination as the trier of
desistance, in any case, would not produce any legal effect since it facts, of the voluntariness and validity of the [private
was the public prosecutor who had direction and control of the complainant's] desistance in the light of the opposition of the
prosecution of the criminal action. He prayed for the denial of the public prosecutor, Asst. Chief State Prosecutor Leonardo Guiyab."
motion to dismiss.
On 02 November 1997, Alonte voluntarily surrendered himself to
On 02 September 1997, this Court issued a Resolution Director Santiago Toledo of the National Bureau of Investigation
(Administrative Matter No. 97-1-12-RTC), granting the petition for ("NBI"), while Concepcion, in his case, posted the recommended
change of venue. The Court said: bail of P150,000.00.
These affidavits give specific names, dates, and On 07 November 1997, petitioners were arraigned and both
methods being used to abort, by coercion or pleaded "not guilty" to the charge. The parties manifested that
corruption, the prosecution of Criminal Case No. 9619- they were waiving pre-trial. The proceedings forthwith went on.
TROPANG POTCHI
Per Judge Savellano, both parties agreed to proceed with the trial
of the case on the merits. 4 According to Alonte, however, Judge
Savellano allowed the prosecution to present evidence relative
only to the question of the voluntariness and validity of the
affidavit of desistance. 5
It would appear that immediately following the arraignment, the
prosecution presented private complainant Juvielyn Punongbayan
followed by her parents. During this hearing, Punongbayan
affirmed the validity and voluntariness of her affidavit of
desistance. She stated that she had no intention of giving positive
testimony in support of the charges against Alonte and had no
interest in further prosecuting the action. Punongbayan
confirmed: (i) That she was compelled to desist because of the
harassment she was experiencing from the media, (ii) that no
pressures nor influence were exerted upon her to sign the
affidavit of desistance, and (iii) that neither she nor her parents
received a single centavo from anybody to secure the affidavit of
desistance.
Assistant State Prosecutor Marilyn Campomanes then presented,
in sequence: (i) Punongbayan's parents, who affirmed their
signatures on the affidavit of desistance and their consent to their
daughter's decision to desist from the case, and (ii) Assistant
Provincial Prosecutor Alberto Nofuente, who attested that the
affidavit of desistance was signed by Punongbayan and her
parents in his presence and that he was satisfied that the same
was executed freely and voluntarily. Finally, Campomanes
manifested that in light of the decision of private complainant and
her parents not to pursue the case, the State had no further
evidence against the accused to prove the guilt of the accused.
She, then, moved for the "dismissal of the case" against both
Alonte and Concepcion.
Thereupon, respondent judge said that "the case was submitted
for decision." 6
On 10 November 1997, petitioner Alonte filed an "Urgent Motion
to Admit to Bail." Assistant State Prosecutor Campomanes, in a
Comment filed on the same date, stated that the State interposed
"no objection to the granting of bail and in fact Justice and Equity
dictates that it joins the accused in his prayer for the granting of
bail."
Respondent judge did not act on the application for bail.
On 17 November 1997, Alonte filed anew an Urgent Plea to
Resolve the Motion for Bail. On even date, ASP Campomanes filed
a Manifestation deeming "it proper and in accord with justice and
fair play to join the aforestated motion."
98
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Again, the respondent judge did not act on the urgent motion.
The records would indicate that on the 25th November 1997, 1st
December 1997, 8th December 1997 and 10th December 1997,
petitioner Alonte filed a Second, Third, Fourth and Fifth Motion
for Early Resolution, respectively, in respect of his application for
bail. None of these motions were acted upon by Judge Savellano.
On 17 December 1997, Attorney Philip Sigfrid A. Fortun, the lead
counsel for petitioner Alonte received a notice from the RTC
Manila. Branch 53, notifying him of the schedule of promulgation,
on 18 December 1997, of the decision on the case. The counsel
for accused Concepcion denied having received any notice of the
scheduled promulgation.
On 18 December 1997, after the case was called, Atty. Sigrid
Fortun and Atty. Jose Flaminiano manifested that Alonte could not
attend the promulgation of the decision because he was suffering
from mild hypertension and was confined at the NBI clinic and
that, upon the other hand, petitioner Concepcion and his counsel
would appear not to have been notified of the proceedings. The
promulgation, nevertheless, of the decision proceeded in
absentia; the reading concluded:
WHEREFORE, judgment is hereby rendered finding the
two (2) accused Mayor Bayani Alonte and
Buenaventura "Wella" Concepcion guilty beyond
reasonable doubt of the heinous crime of RAPE, as
defined and penalized under Article 335(2) in relation
to Article 27 of the Revised Penal Code, as amended by
Republic Act No. 7659, for which each one of the them
is hereby sentenced to suffer the indivisible penalty
of RECLUSION PERPETUA or imprisonment for twenty
(20) years and one (1) day to forty (40) years.
In view thereof, the bail bond put up by the accused
Buenaventura "Wella'" Concepcion for his provisional
liberty is hereby cancelled and rendered without any
further force and effect.
SO ORDERED. 7
On the same day of 18th December 1997, petitioner Alonte filed a
motion for reconsideration. Without waiting for its resolution,
Alonte filed the instant "Ex Abundante Ad Cautelam" for
"Certiorari, Prohibition, Habeas Corpus, Bail, Recusation of
respondent Judge, and for Disciplinary Action against an RTC
Judge." Petitioner Concepcion later filed his own petition
for certiorari and mandamus with the Court.
Alonte submits the following grounds in support of his petition
seeking to have the decision nullified and the case remanded for
new trial; thus:
The respondent Judge committed grave abuse of
discretion amounting to lack or excess of jurisdiction
when he rendered a Decision in the case a quo (Annex
A) without affording the petitioner his Constitutional
right to due process of law (Article III, §1, Constitution).
The respondent Judge committed grave abuse of
discretion amounting to lack or excess of jurisdiction
when he rendered a Decision in the case a quo in
violation of the mandatory provisions of the Rules on
Criminal Procedure, specifically, in the conduct and
order of trial (Rule 119) prior to the promulgation of a
judgment (Rule 120; Annex A).
The respondent Judge committed grave abuse of
discretion amounting to lack or excess of jurisdiction
when, in total disregard of the Revised Rules on
Evidence and existing doctrinal jurisprudence, he
rendered a Decision in the case a quo (Annex A) on the
basis of two (2) affidavits (Punongbayan's and Balbin's)
which were neither marked nor offered into evidence
by the prosecution, nor without giving the petitioner
an opportunity to cross-examine the affiantsthereof,
again in violation of petitioner's right to due process
(Article III, §1, Constitution).
The respondent Judge committed grave abuse of
discretion amounting to lack or excess of jurisdiction
when he rendered a Decision in the case a quo without
conducting a trial on the facts which would establish
that complainant was raped by petitioner (Rule 119,
Article III, §1, Constitution), thereby setting a
dangerous precedent where heinous offenses can
result in conviction without trial (then with more
reason that simpler offenses could end up with the
same result). 8
On the other hand, Concepcion relies on the following grounds in
support of his own petition; thus:
1. The decision of the respondent Judge rendered in
the course of resolving the prosecution's motion to
dismiss the case is a patent nullity for having been
rendered without jurisdiction, without the benefit of a
trial and in total violation of the petitioner's right to
due process of law.
TROPANG POTCHI
2. There had been no valid promulgation of judgment
at least as far as petitioner is concerned.
3. The decision had been rendered in gross violation of
the right of the accused to a fair trial by an impartial
and neutral judge whose actuations and outlook of the
case had been motivated by a sinister desire to ride on
the crest of media hype that surrounded this case and
use this case as a tool for his ambition for promotion to
a higher court.
4. The decision is patently contrary to law and the
jurisprudence in so far as it convicts the petitioner as a
principal even though he has been charged only as an
accomplice in the information. 9
The petitions deserve some merit; the Court will disregard, in view
of the case milieu, the prematurity of petitioners' invocation, i.e.,
even before the trial court could resolve Alonte's motion for
reconsideration.
The Court must admit that it is puzzled by the somewhat strange
way the case has proceeded below. Per Judge Savellano, after the
waiver by the parties of the pre-trial stage, the trial of the case did
proceed on the merits but that —
The two (2) accused did not present any countervailing
evidence during the trial. They did not take the witness
stand to refute or deny under oath the truth of the
contents of the private complainant's aforementioned
affidavit which she expressly affirmed and confirmed in
Court, but, instead, thru their respective lawyers, they
rested and submitted the case for decision merely on
the basis of the private complainant's so called
"desistance" which, to them, was sufficient enough for
their purposes. They left everything to the so-called
"desistance" of the private complainant. 10
According to petitioners, however, there was no such trial for
what was conducted on 07 November 1997, aside from the
arraignment of the accused, was merely a proceeding in
conformity with the resolution of this Court in Administrative Case
No. 97-1-12-RTC to determine the validity and voluntariness of
the affidavit of desistance executed by Punongbayan.
It does seem to the Court that there has been undue precipitancy
in the conduct of the proceedings. Perhaps the problem could
have well been avoided had not the basic procedures been, to the
Court's perception, taken lightly. And in this shortcoming, looking
at the records of the case, the trial court certainly is not alone to
blame.
99
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Section 14, paragraphs (1) and (2), of Article III, of the Constitution
provides the fundamentals.
(1) No person shall be held to answer for a criminal
offense without due process of law.
(2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial,
and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance
In Tabao vs. Espina, 14 the Court has underscored the need to
of witnesses and the production of evidence in his
adhere strictly to the above rules. It reminds that —
behalf. However, after arraignment, trial may proceed
notwithstanding the absence of the accused provided
that he has been duly notified and his failure to appear
is unjustifiable.
Jurisprudence 11 acknowledges that due process in criminal
proceedings, in particular, require (a) that the court or tribunal
trying the case is properly clothed with judicial power to hear and
determine the matter before it; (b) that jurisdiction is lawfully
acquired by it over the person of the accused; (c) that the accused
is given an opportunity to be heard; and (d) that judgment is
rendered only upon lawful hearing. 12
The above constitutional and jurisprudential postulates, by now
elementary and deeply imbedded in our own criminal justice
system, are mandatory and indispensable. The principles find
universal acceptance and are tersely expressed in the oft-quoted
statement that procedural due process cannot possibly be met
While Judge Savellano has claimed in his Comment that —
without a "law which hears before it condemns, which proceeds
upon inquiry and renders judgment only after trial." 13
The order of trial in criminal cases is clearly spelled out in Section
3, Rule 119, of the Rules of Court; viz:
Sec. 3. Order of trial. — The trial shall proceed in the
following order:
(a) The prosecution shall present evidence to prove the
charge and, in the proper case, the civil liability.
(b) The accused may present evidence to prove his
defense, and damages, if any, arising from the issuance
of any provisional remedy in the case.
it should be pointed out, however, that the existence of the
waiver must be positively demonstrated. The standard of waiver
(c) The parties may then respectively present rebutting
requires that it "not only must be voluntary, but must be knowing,
evidence only, unless the court, in furtherance of
intelligent, and done with sufficient awareness of the relevant
justice, permits them to present additional evidence
bearing upon the main issue.
(d) Upon admission of the evidence, the case shall be
deemed submitted for decision unless the court directs
the parties to argue orally or to submit memoranda.
(e) However, when the accused admits the act or
omission charged in the complaint or information but
interposes a lawful defense, the order of trial may be
modified accordingly.
. . . each step in the trial process serves a specific
purpose. In the trial of criminal cases, the
constitutional presumption of innocence in favor of an
accused requires that an accused be given sufficient
opportunity to present his defense. So, with the
prosecution as to its evidence.
Hence, any deviation from the regular course of trial
should always take into consideration the rights of all
the parties to the case, whether in the prosecution or
defense. In the exercise of their discretion, judges are
sworn not only to uphold the law but also to do what is
fair and just. The judicial gavel should not be wielded
by one who has an unsound and distorted sense of
justice and fairness. 15
Petitioners-accused were each represented during the
hearing on 07 November 1997 with their respective
counsel of choice. None of their counsel interposed an
intention to cross-examine rape victim Juvielyn
Punongbayan, even after she attested, in answer to
respondent judge's clarificatory questions, the
voluntariness and truth of her two affidavits — one
detailing the rape and the other detailing the attempts
to buy her desistance; the opportunity was missed/not
used, hence waived. The rule of case law is that the
right to confront and cross-examine a witness "is a
personal one and may be waived." (emphasis supplied)
—
TROPANG POTCHI
circumstances and likely consequences." 16 Mere silence of the
holder of the right should not be so construed as a waiver of right,
and the courts must indulge every reasonable presumption
against waiver. 17 The Solicitor General has aptly discerned a few
of the deviations from what otherwise should have been the
regular course of trial: (1) Petitioners have not been directed to
present evidence to prove their defenses nor have dates therefor
been scheduled for the purpose; 18 (2) the parties have not been
given the opportunity to present rebutting evidence nor have
dates been set by respondent Judge for the purpose; 19 and (3)
petitioners have not admitted the act charged in the Information
so as to justify any modification in the order of trial. 20 There can
be no short-cut to the legal process, and there can be no excuse
for not affording an accused his full day in court. Due process,
rightly occupying the first and foremost place of honor in our Bill
of Rights, is an enshrined and invaluable right that cannot be
denied even to the most undeserving.
This case, in fine, must be remanded for further proceedings. And,
since the case would have to be sent back to the court a quo,
this ponencia has carefully avoided making any statement or
reference that might be misconstrued as prejudgment or as pre-
empting the trial court in the proper disposition of the case. The
Court likewise deems it appropriate that all related proceedings
therein, including the petition for bail, should be subject to the
proper disposition of the trial court.
Nevertheless, it is needful to stress a few observations on the
affidavit of desistance executed by the complainant.
Firstly, the affidavit of desistance of Juvie-Lyn Punongbayan,
hereinbefore quoted, does not contain any statement that
disavows the veracity of her complaint against petitioners but
merely seeks to "be allowed to withdraw" her complaint and to
discontinue with the case for varied other reasons. On this
subject, the case ofPeople vs. Junio, 21 should be instructive. The
Court has there explained:
The appellant's submission that the execution of an
Affidavit of Desistance by complainant who was
assisted by her mother supported the "inherent
incredibility of prosecution's evidence" is specious. We
have said in so many cases that retractions are
generally unreliable and are looked upon with
considerable disfavor by the courts. The unreliable
character of this document is shown by the fact that it
is quite incredible that after going through the process
of having accused-appellant arrested by the police,
positively identifying him as the person who raped her,
enduring the humiliation of a physical examination of
her private parts, and then repeating her accusations
in open court by recounting her anguish, Maryjane
100
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

would suddenly turn around and declare that "[a]fter a recalled to the witness stand to testify on her affidavit. justify the dismissal of the complaint should have been
careful deliberation over the case, (she) find(s) that the Her affidavit is thus hearsay. It was her husband, made prior to the institution of the criminal action.
same does not merit or warrant criminal prosecution. Roque Asenita, who was presented and the matters he [People vs. Entes, 103 SCRA 162, cited by People vs.
testified to did not even bear on the substance of Soliao, 194 SCRA 250, which in turn is cited in People
Tessie's affidavit. He testified that accused-appellant vs. Villorente, 210 SCRA 647.] Here, the motion to
Thus, we have declared that at most the retraction is
was not involved in the perpetration of the crime. dismiss to which the affidavit of desistance is attached
an afterthought which should not be given probative
was filed after the institution of the criminal case. And,
value. It would be a dangerous rule to reject the
affiant did not appear to be serious in "signifying (her)
testimony taken before the court of justice simply In the second place, to accept the new evidence
intention to refrain from testifying" since she still
because the witness who has given it later on changed uncritically would be to make a solemn trial a mockery
completed her testimony notwithstanding her earlier
his mind for one reason or another. Such a rule will and place the investigation at the mercy of
affidavit of desistance. More, the affidavit is suspect
make a solemn trial a mockery and place the unscrupulous witnesses. [De Guzman vs. Intermediate
considering that while it was dated "April 1992," it was
investigation at the mercy of unscrupulous witnesses. Appellate Court, 184 SCRA 128, 134, citing People vs.
only submitted sometime in August 1992, four (4)
Because affidavits of retraction can easily be secured Morales, 113 SCRA 683.] For even assuming that Tessie
months after the Information was filed before the
from poor and ignorant witnesses, usually for Asenita had made a retraction, this circumstance alone
court a quo on 6 April 1992, perhaps dated as such to
monetary consideration, the Court has invariably does not require the court to disregard her original
coincide with the actual filing of the case. 26
regarded such affidavits as exceedingly unreliable testimony. A retraction does not necessarily negate an
[Flores vs. People, 211 SCRA 622, citing De Guzman vs. earlier declaration. [People vs. Davatos, 229 SCRA 647.]
Intermediate Appellate Court, 184 SCRA 128; People For this reason, courts look with disfavor upon In People vs. Miranda, 27 applying the pertinent provisions of
vs. Galicia, 123 SCRA 550.] 22 retractions because they can easily be obtained from Article 344 of the Revised Penal Code which, in full, states —
witnesses usually through intimidation or for monetary
considerations. [People vs. Clamor, 198 SCRA 642.]
The Junio rule is no different from ordinary criminal cases. For Art. 344. Prosecution of the crimes of adultery,
Hence, when confronted with a situation where a
instance, in People vs. Ballabare, 23 a murder case, the Court has concubinage, seduction, abduction, rape, and acts of
witness recants his testimony, courts must not
ruled: lasciviousness. The crimes of adultery and concubinage
automatically exclude the original testimony solely on
shall not be prosecuted except upon a complaint filed
the basis of the recantation. They should determine
by the offended spouse.
The contention has no merit. To begin with, the which testimony should be given credence through a
Affidavit executed by eyewitness Tessie Asenita is not a comparison of the original testimony and the new
recantation. To recant a prior statement is to renounce testimony, applying the general rules of evidence. The offended party cannot institute criminal
and withdraw it formally and publicly. [36 WORDS AND [Reano vs. Court of Appeals, 165 SCRA 525.] In this prosecution without including both the guilty parties, if
PHRASES 683, citing Pradlik vs. State, 41-A 2nd, 906, case we think the trial court correctly ruled. 24 they are both alive, nor, in any case, if he shall have
907.] In her affidavit, Tessie Asenita did not really consented or pardoned the offenders.
recant what she had said during the trial. She only said
It may not be amiss to state that courts have the inherent power
she wanted to withdraw her testimony because her
to compel the attendance of any person to testify in a case The offenses of seduction, abduction, rape or acts of
father, Leonardo Tacadao, Sr., was no longer
pending before it, and a party is not precluded from invoking that lasciviousness, shall not be prosecuted except upon a
interested in prosecuting the case against accused-
authority. 25 complaint filed by the offended party or her parents,
appellant. Thus, her affidavit stated:
grandparents, or guardian, nor, in any case, if the
offender has been expressly pardoned by the above
Secondly, an affidavit of desistance by itself, even when construed
3. That inasmuch as my father, Leonardo Tacadao, Sr., named persons, as the case may be.
as a pardon in the so-called "private crimes," is not a ground for
the complainant therein, was no longer interested to
the dismissal of the criminal case once the action has been
prosecute the case as manifested in the Sworn
instituted. The affidavit, nevertheless, may, as so earlier In cases of seduction, abduction, acts of lasciviousness
Affidavit of Desistance before the Provincial
intimated, possibly constitute evidence whose weight or and rape, the marriage of the offender with the
Prosecutor, I do hereby WITHDRAW and/or REVOKE
probative value, like any other piece of evidence, would be up to offended party shall extinguish the criminal action or
my testimony of record to confirm (sic) with my
the court for proper evaluation. The decision in Junio went on to remit the penalty already imposed upon him. The
father's desire;
hold — provisions of this paragraph shall also be applicable to
the coprincipals, accomplices and accessories after the
It is absurd to disregard a testimony that has fact of the above-mentioned crimes.
While "[t]he offenses of seduction, abduction, rape or
undergone trial and scrutiny by the court and the
acts of lasciviousness, shall not be prosecuted except
parties simply because an affidavit withdrawing the
upon a complaint flied by the offended party or her the Court said:
testimony is subsequently presented by the defense. In
parents, grandparents, or guardian, nor in any case, if
the first place, any recantation must be tested in a
the offender has been expressly pardoned by the Paragraph 3 of the legal provision above quoted
public trial with sufficient opportunity given to the
above named persons, as the case may be," [Third par. prohibits a prosecution for seduction, abduction, rape,
party adversely affected by it to cross-examine the
of Art. 344, The Revised Penal Code.] the pardon to or acts of lasciviousness, except upon a complaint
recanting witness. In this case, Tessie Asenita was not
101
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
made by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the
offender has been expressly pardoned by the above-
named persons, as the case may be. It does not
prohibit the continuance of a prosecution if the
offended party pardons the offender after the cause
has been instituted, nor does it order the dismissal of
said cause. The only act that according to article 344
extinguishes the penal action and the penalty that may
have been imposed is the marriage between the
offended and the offended party. 28
29
In People vs. Infante,   decided just a little over a month before
Miranda, the Court similarly held:
In this court, after the case had been submitted, a
motion to dismiss was filed on behalf of the appellant
predicated on an affidavit executed by Manuel Artigas,
Jr., in which he pardoned his guilty spouse for her
infidelity. But this attempted pardon cannot prosper
for two reasons. The second paragraph of article 344
of the Revised Penal Code which is in question reads:
"The offended party cannot institute criminal
prosecution without including both the guilty parties, if
they are both alive, nor, in any case, if he shall have
consented or pardoned the offenders." This provision
means that the pardon afforded the offenders must
come before the institution of the criminal
prosecution, and means, further, that both the
offenders must be pardoned by the offended party. To
elucidate further, article 435 of the old Penal Code
provided: "The husband may at any time remit the
penalty imposed upon his wife. In such case the
penalty imposed upon the wife's paramour shall also
be deemed to be remitted." These provisions of the old
Penal Code became inoperative after the passage of
Act No. 1773, section 2, which had the effect of
repealing the same. The Revised Penal Code thereafter
expressly repealed the old Penal Code, and in so doing
did not have the effect of reviving any of its provisions
which were not in force. But with the incorporation of
the second paragraph of article 344, the pardon given
by the offended party again constitutes a bar to the
prosecution for adultery. Once more, however, it must
be emphasized that this pardon must come before the
institution of the criminal prosecution and must be for
both offenders to be effective — circumstances which
do not concur in this case. 30
The decisions speak well for themselves, and the Court need not
say more than what it has heretofore already held.
TROPANG POTCHI
Relative to the prayer for the disqualification of Judge Savellano scheduled for raffle among the other branches of that
from further hearing the case, the Court is convinced that Judge court for proper disposition.
Savellano should, given the circumstances, the best excused from
the case. Possible animosity between the personalities here
No special pronouncement on costs.
involved may not all be that unlikely. The pronouncement of this
Court in the old case of Luque vs. Kayanan 31 could again be said:
All suitors are entitled to nothing short of the cold neutrality of an SO ORDERED.
independent, wholly-free, disinterested and unbiased tribunal.
Second only to the duty of rendering a just decision is the duty of Melo, Kapunan, Martinez, Quisumbing and Purisima, JJ., concur.
doing it in a manner that will not arouse any suspicion as to the
fairness and integrity of the Judge. 32 It is not enough that a court
is impartial, it must also be perceived as impartial. Narvasa, C.J., took no part.
The Court cannot end this ponencia without a simple reminder on  
the use of proper language before the courts. While the lawyer in
promoting the cause of his client or defending his rights might do  
so with fervor, simple courtesy demands that it be done within
the bounds of propriety and decency. The use of intemperate
 
language and unkind ascriptions hardly can be justified nor can
have a place in the dignity of judicial forum. Civility among
members of the legal profession is a treasured tradition that must Separate Opinions
at no time be lost to it.
PUNO, J., separate opinion;
Finally, it may be opportune to say, once again, that prosecutors
are expected not merely to discharge their duties with the highest
The facts are critical and need to be focused. Petitioners were
degree or excellence, professionalism and skill but also to act each
charged with rape in Criminal Case No. 15993 which was raffled to
time with utmost devotion and dedication to duty. 33 The Court is
Br. 25 of the RTC of Biñan, Laguna. The charge is principally based
hopeful that the zeal which has been exhibited many times in the
on the following affidavit dated October 31, 1996 of Ms. Juvie-Lyn
past, although regrettably a disappointment on few occasions, will
Punongbayan, a 16-year old minor, viz.:
not be wanting in the proceedings yet to follow.
REPLY-AFFIDAVIT
WHEREFORE, conformably with all the foregoing, the
Court hereby RULES that —
(TUGON SA MGA SALAYSAY NILA MAYOR BAYANI
ALONTE, WELLA CONCEPCION, RICARDO LACAYAN at
(a) The submission of the "Affidavit of Desistance,"
JAIME MENDOZA)
executed by Juvie-Lyn Y. Punongbayan on 25 June
1997, having been filed AFTER the institution of
Criminal Case No. 97-159935, DOES NOT WARRANT Ako si JUVIE-LYN Y. PUNONGBAYAN, Filipino, walang
THE DISMISSAL of said criminal case; asawa, 16 years old, at kasalukuyang nasa
pangangalaga ng Department of Social Welfare and
Development, matapos makapanumpa ayon sa batas,
(b) For FAILURE OF DUE PROCESS, the assailed
ay nagsasaad:
judgment, dated 12 December 1997, convicting
petitioners is declared NULL AND VOID and thereby
SET ASIDE; accordingly, the case is REMANDED to the 1. Wala pong katotohanan ang lahat nakasaad sa mga
trial court for further proceedings; and salaysay ni Mayor Bayani Alonte at Buenaventura
"Wella" Concepcion, ng kanilang mga testigo na sila
Ricardo (Ading) Lacayan y Aguilar at Jaime Bagtas
(c) Judge Maximo A. Savellano, Jr., presiding Judge of
Mendoza.
Branch 53 of the Regional Trial Court of Manila, is
ENJOINED from further hearing Criminal Case No. 97-
159935; instead, the case shall immediately be 2. Ang totoo po ay inabuso ako ni Mayor nung
September 12, 1996, katulad nga ng naihayag ko na sa
aking sinumpaang salaysay. Ayon sa driver ng tricycle
102
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
na nasakyan ko pagkatapos ng insidente, hindi lang po
ako, kundi marami pa pong babae ang inabuso ni
Mayor. Sabi pa nga ng driver ay naaawa siya sa akin, at
lumaban daw ako. Tinawagan ko na rin po ang lahat ng
mga babae na naging biktima ni Mayor; wag silang
matakot, lumabas at ilahad ang pangaabuso ni Mayor.
Ang detalya nung panggagahasa
ni Alonte at ang partisipasyon
ni Wella Concepcion
3. Nakalahad po sa sumusunod na talata ang detalya
ng pang-aabuso sa akin ni Mayor. Pinakikita rin dito
kung paano nakipagsabwatan kay Wella Concepcion.
Sa pamamagitan nito ay mapapabulaanan na rin ang
mga nakasaad sa salaysay nila at ng mga testigo nila.
4. Nakilala ko si Wella Concepcion, dance instructor,
nung bandang last week ng August 1996. Noon ay
naghahanda ako para sa "Miss Education" beauty
contest sa Perpetual Help College of Laguna. Doon ako
nag-aaral. First year college ako, at education ang
kursong pinili ko. Ang nasabing contest ay ginanap
nung Sept. 20, 1996. Kapag nagkikita kami ni Wella
para sa ensayo, nagkukuwentuhan din kami, at
nabanggit niya na may kaibigan siyang bakla na
nagdadala ng babae kay Mayor Alonte. Waway daw
ang pangalan ng bakla. Hindi ko pa kilala si Waway
noon.
5. Nung Sept. 7, niyaya ako ni Wella na sumali sa dance
contest sa "Sang Linggo NAPO SILA" sa Channel 2, na
itatanghal sa Sept. 11, 1996. Wala na daw po akong
aalalahanin. Siya daw ang bahala sa costume at
transportation. Pumayag ang nanay ko, dahil wala na
kaming gagastusin. Hindi ko tinanong kay Wella kung
saan galing ang costume. Akala ko may ipapagamit lang
siya sa akin.
6. Nung Sept. 8, pinakilala ni Wella si Waway sa akin. Si
Waway ang nagturo sa amin ng sayaw para sa TV
contest. Mula nung araw na yon hanggang Sept. 10 ay
nagsanay kami sa bahay ng kapatid ni Waway sa St.
Francis Subdivision, Biñan, Laguna. Tatlo kami sa dance
group: ako at ang dalawang lalaki na ipinakilala sa akin
ni Waway: si Melchor at Darius.
7. Nagpunta kami sa studio sa Delta nung Sept. 11.
Bago kami magsayaw, habang inaayos ni Wella yung
damit ko, sinabi niya na dapat manalo kami dahil si
Mayor Alonte daw ang nag-sponsor ng costume namin.
Noon ko lang ito nalaman. Hindi kami nanalo sa
contest, pero nagkaroon pa rin kami ng premyong
P1,500.00 na pinaghatian namin.
8. Pagkatapos ng contest, at nung nakapagpalit na ako
ng damit, binabalik ko kay Wella ang costume ko. Sabi
niya iuwi ko daw ito dahil gagamitin ko ito sa Miss
Education contest, sa presentation ng mga candidates.
Mula sa studio, nagpunta kaming lahat sa isang kainan
sa tapat ng Delta at, pagkatapos namin kumain,
humiwalay yung ibang kasama namin.
9. Dinala ako ni Wella sa isang department store at
binili niya ako ng sandals. Inikot niya ako sa lugar na
yon at binili niya ako ng pagakain. Tapos ay sumakay
kami ng bus pauwi sa Laguna. Nung nasa bus kami,
niyaya ako ni Wella na magpunta sa bahay ni Mayor
para magpasalamat ng personal para sa costume
namin. Pumayag ako at sabi ko kay Wella na sunduin
niya ako sa bahay ng 10:00 a.m. sa susunod na araw,
Sept. 12. Nakarating ako sa bahay ng 5:00 p.m. ng araw
na yon, Sept. 11.
10. Nung Sept. 12, hinintay ko si Wella ng 10:00 a.m.
Nung hindi siya dumating umalis kaming Tita ko dahil
sinamahan ko siya sa health center. Sumundo pala si
Wella doon, pero hindi kami nagkita kasi saglit lang
kami doon. Bumalik siya sa bahay, at doon na kami
nagkita. Tapos ay umalis kami ni Wella papunta kay
Mayor. Tumawid kami ng kalye, at pumara ako ng
tricycle. Pero kahit marami na akong pinara, ayaw ni
Wella na sumakay doon. Maya-maya, may tricyle na
dumating na hindi naman pinara ni Wella. Basta
huminto na lang sa harap namin. Doon kami sumakay
ni Wella. Si Wella ang nagturo sa driver kung saan kami
pupunta. Nag-uusap sila ng driver habang papunta
kami kay Mayor.
11. Bumaba kami sa tapat ng bahay na bukas ang gate.
May swimming pool sa loob, alam na alam ni Wella
and, pasikot-sikot nang bahay; tuloy-tuloy siya sa loob
at sumunod naman ako. Wala kaming taong nakita,
pero bukas pati yung pintuan ng bahay. Dinala ako ni
Wella sa sala. Napakaganda ng loob ng bahay.
Mayroong wall paper na may design na leaves and
flowers; may carpet sa sahig. May mahabang hagdan
patungo sa dalawang pintuan.
12. Tinanong ko kay Wella kung nasaan si Mayor. Sabi
niya ay nasa munisipyo daw; darating na daw maya-
TROPANG POTCHI
maya. Pagkaraan ng mga 15 minutes, dumating si
Mayor na nakasakay sa green na kotse. Lumabas siya
sa kaliwang pintuan sa harap ng kotse. Wala siyang
kasama.
13. Pumasok si Mayor sa loob ng bahay. Naghubad siya
ng sapatos. Sabi ni Wella: "Mayor, si Juvie; Juvie si
Mayor."
14. Umupo si Mayor sa tabi ko. Kinamayan niya ako at
sinabi niya: "Hi, I'm Arthur" sabay hinalikan niya sa ako
sa lips. Hindi ako naka-react dahil nagulat at kinabahan
ako.
15. Nagmamadaling nagpaalam si Wella. Kinuha ni
Mayor ang wallet sa bulsa sa likod ng kanyang
pantalon. Dumukot siya ng P1,000 na buo. Inabot niya
ito kay Wella. Patayo na ako pero hinawakan ni Mayor
ang braso ko. Wag daw akong sasama kay Wella. Sinabi
ko kay Wella na wag niya akong iiwanan, pero parang
wala siyang narinig. Basta tuloy-tuloy siyang umalis.
16. Nung, kami na lang ni Mayor ang natira, pinainom
niya ako ng mineral water. Uminom ako dahil nauuhaw
ako. Nanlabo ang paningin ko at nanghina ako.
17. Nawalan ako ng malay. Ang sumunod ko na lang na
natatandaan ay nandoon na ako sa kwarto. Wala
akong damit. Nakadagan si Mayor sa akin. May
malaking salamin sa pader. Doon ko nakita na walang
kadamit-damit si Mayor.
18. Hawak ako ni Mayor sa magkabilang braso. Pinipisil
niya ito kaya nagkaroon ako ng pasa sa kaliwang braso
(at ito ay nawala lang pagkatapos ng tatlong araw).
19. Naramdaman ko na pilit na pinasok ni Mayor ang
ari niya sa aking ari. Nasaktan ako. Nagmakaawa ako.
Umiiyak ako nung sinabi ko sa kanya na tigilan niya
ako; nasasaktan ako; may anak rin siyang babae. Sabi
niya wag daw akong maingay at i-embrace ko na lang
daw siya. Lalo akong umiyak dahil nandidiri ako sa
kanya, at sa ginagawa niya sa akin. Naghalo ang galit,
pandidiri at takot. Wala akong magawa kundi
magmakaawa. Hindi ko siya maitulak dahil nanghihina
ako, nakadagan siya sa akin, mataba siya, at hawak-
hawak niya ang braso ko. Pero kahit nagmamakaawa
ako, tinuloy pa rin niya at pinasok niya ulit ang ari niya
sa aking ari.
103
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
20. Maya-maya ay tumigil siya. Tumayo siya at sabi
niya: "ang panty mo, nasa tabi mo." Kinuha ko ang
panty ko, tumayo ako at sinuot ko ito. Hinanap ko ang
damit ko, at nakita ko ang walking shorts, bra at t-shirt
ko sa sahig. Pinulot ko ito at sinuot ko. Habang
sinusuot ko, umiiyak pa rin ako. Pagkatapos kong
magbihis, umupo ako sa mahabang upuan sa may gilid
ng kama.
21. Samantala, paqkatapos sabihin ni Mayor na nasa
tabi ko ang panty ko, nagpunta siya sa banyo na
transparent ang pinto. Wala siyang suot pagpunta niya
doon. Paglabas niya, nakasuot na siya ng checkered
brief na kulay black and white. Pumunta siya sa
kabilang gilid ng kama. Kinuha niya ang damit niya na
nakahanger sa pader. Sinuot niya ito. Lumabas siya ng
kwarto. Hindi nagtagal ay pumasok siya ulit at sinabi
niya na nandiyan na daw ang sundo ko.
22. Tumayo ako. Sinabi ko na aalis na ako. Nung
papunta na ako sa pintuan, lumapit si Mayor sa akin.
May hawak-hawak siyang dalawang pirasong P1,000.
Tiniklop niya ito; binaba niya yung neckline ng t-shirt
ko, at pinasok niya ang pera sa aking bra. Nagalit ako.
Kinuha ko ang pera at tinapon ko ito sa kanya. Sabi ko
hindi ako bayarang babae. Nagalit siya at pinagbantaan
ako. Sabi niya: "Pag nagsalita ka, alam mo na kung ano
ang mangyayari sa iyo." Tiningnan ko siya, at umalis
ako pababa.
23. Mayroon tricycle na nakaabang sa labas. Sumunod
si Mayor. Lumapit siya sa driver at binigyan niya ito ng
P100. Tapos ay umalis na kami.
24. Umiiyak pa rin ako nung nasa tricycle. Sabi ko sa
driver na ginahasa ako ni Mayor. Sabi niya masuwerte
daw ako at maaga akong pinauwi dahil yung mga ibang
babae daw na dinadala kay Mayor ay pinauwi ng
madaling-araw o hating-gabi. Minsan dalawa o tatlo pa
nga daw ang dinadala doon, at yung iba ay naka-
uniform pa. Naawa daw siya sa akin, kaya
magsumbong daw ako. Nakokonsensiya daw siya dahil
isa siya sa dalawang tricycle driver na naghahatid ng
mga babae doon. Sabi pa nga niya, babae din daw ang
ina niya, kaya din siya nakokonsensiya. Dinagdag pa
niya na kung may kasiyahan kina Mayor, isang van ng
mga babae ang nadoon. Pagdating namin sa bahay ng
Lola ko, sabi niya bago siya umalis: "Lumaban ka."
On December 13, 1996, the private complainant thru her counsel,
Atty. Remedios C. Balbin and Asst. Chief State Prosecutor
Leonardo Guiab, Jr., of the Department of Justice petitioned this
Court for a change of venue. They cited as ground the "great
danger to the lives of both the private complainant, the
immediate members of her family, and their witnesses as they
openly defy the principal accused, Mayor Alonte who is
acknowledged as a powerful political figure and almost an
institution in Biñan, Laguna . . ."
On March 31, 1997, the private complainant, thru the then
Secretary of Justice, the Honorable Teofisto Guingona and Chief
State Prosecutor Jovencio Zuno filed a Manifestation and Motion
for the early resolution of the petition for change of venue. They
submitted the affidavits of the private complainant, her counsel
Atty. Remedios C. Balbin, Dolores Mercado-Yambao, Bienvenido
Salandanan and Evelyn Celso to prove their allegation that they
"are exposed to kidnapping, harassment, veiled threats and
tempting offers of bribe money — all intended to extract an
'affidavit of desistance' from the private complainant." Worth
bright lining are the two (2) affidavits of Atty. Remedios C. Balbin,
counsel for the private complainant, relating the fantastic amount
of P10M bribe money allegedly offered to her. The first affidavit
dated February 24, 1997 states:
I, Remedios C. Balbin, of legal age, Filipino, married,
with residence at #5 Uranus Street, Congressional
Avenue Subdivision, Quezon City, after having duly
sworn in accordance with law, depose and say:
1. That I am the Private Prosecutor in Criminal Case No.
96-19-B for rape, filed with the Biñan RTC, Branch 25,
entitled "People of the Philippines vs. Bayani Arthur
Alonte, et al.;
2. That as Private Prosecutor, it is my avowed duty to
be faithful to the interests of my client, Ms. Juvie-lyn
Punongbayan;
3. That on several occasions, I was visited at my Office
at the Quezon City Hall Compound, by a lawyer who
introduced himself as Atty. Leo C. Romero,
representing the Accused Mayor Bayani Arthur Alonte;
4. That my calendar at the People's Bureau, Quezon
City Hall, shows that he came to see me about eight (8)
times, but we talked only about three (3) times
because I was always busy attending to the problems
of Quezon City's urban poor and the landowners of
private properties illegally occupied by them;
5. That in two (2) occasions, Atty. Romero conveyed to
me the message of Mayor Alonte, namely, to drop the
rape case against him, and that he would give a
TROPANG POTCHI
consideration of Ten Million Pesos (P10 Million) to be
apportioned as follows:
Five Million Pesos (P5M) — for the Private
Complainant
Three Million Pesos (P3M) — for me as Private
Prosecutor
Two Million Pesos (P2M) — for him as the mediator
6. That I explained to Atty. Romero that money does
not matter at all to the Complainant and her family
even if they have very modest means; that they want
justice, which means a conviction for the charge of
rape;
7. That I also explained to Atty. Romero that the
money he was offering me was of no consequence to
me because I had access to the resources of my two (2)
daughters, both of whom are in the medical field
abroad, and of Mr. Filomeno Balbin, Labor Attached
then assigned in Riyadh;
8. That I told him that I cannot be tempted with his
offer because spiritual consideration are more
important to me than the material. Also, that I usually
handle cases pro bono (at abunado pa) where the
litigant is in dire need of legal assistance but cannot
afford to pay for the lawyer's fees, as in Juvie-lyn's
case;
9. That I gave Atty. Romero a copy of the decision of
the Supreme Court promulgated December 10 1996,
entitled "People of the Philippines vs. Robert Cloud"
(GR No. 119359: Crim. Case No. Q-90-12660) for
parricide involving the death of a 2 1/2 year old boy. I
wrote on page one of the xerox copy of the decision:
"To Atty. Leo Romero — so you will understand," and
to which I affixed my signature.
10. That I told him explicitly: "we cannot simplify the
entire proceedings. You advise Mayor Alonte to
surrender (one mitigating circumstance), plead guilty
(another mitigating circumstance), get a conviction and
suffer the corresponding penalty. Otherwise, we have
nothing to talk about."
104
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
11. That I emphasized that his suggestion for Mayor
Alonte to plead guilty to "act of lasciviousness" merely
was ridiculous;
12. That when the Complainant's Affidavit on the offer
of Ms. Emily Vasquez for a valuable consideration in
exchange for an affidavit of desistance in the rape was
exposed by media, Atty. Romero came to see me and
thanked me for not exposing him in similar fashion. I
assured him that he will not be an exception and that I
was just too busy then to execute an affidavit on the
matter, as I do now;
13. That I have not received other similar offers of
valuable material consideration from any other person,
whether private party or government official;
However, I have been separately advised by several
concerned persons that I was placing my personal
safety at great risk. The victim's family will have great
difficulty in finding another lawyer to "adopt" them in
the way I did, which gives them strength to pursue
their case with confidence and the accused Mayor is
aware that I am the obstacle to an out-of-court
settlement of the case. Also, that I had my hands full,
as it is, as the Head of the QC People's Bureau, Housing
Development Center, and Special Task Force an
Squatting and Resettlement, and the numerous cases
filed by me or against me, connected with my
performance of official duties, and I should not add
more legal problems despite my authority to engage in
private law practice.
14. That this affidavit is executed in order to put on
record the attempt to influence me directly, in
exchange for valuable consideration to drop the rape
charge against Mayor Bayani Arthur Alonte.
February 24, 1997, City of Manila.
SGD. REMEDIOS C. BALBIN
I, REMEDIOS C. BALBIN, of legal age, Filipino, married, and with
postal address at No. 5 Uranus Street, Congressional Avenue
REMEDIOS C. BALBIN Quezon City, after having duly sworn in accordance
Subdivision
with law, depose and say:
SUBSCRIBED AND SWORN to before me this 26th day
of March, 1997, Metro Manila.
Community Tax Certificate —
5208733
Date Issue 2-10-97
TROPANG POTCHI
Quezon City Leonardo Guiyab, Jr., and Director Jude Romano of the Witness
Protection Program, the instances of substantial amounts
amounting to several millions, to my client, to her relatives,
NOTARY PUBLIC
including her maternal grandmother, and to myself;
SGD. JUANITO L. GARCIA
3. That despite the published declaration by the Department of
Justice of its determination to prosecute those who offered the
ATTY. JUANITO L. GARCIA
bribes, new emissaries of Mayor Alonte persist in making offers,
as follows:
NOTARY PUBLIC
a. On Thursday, March 6, 1997, at about 3:15 o'clock in the
UNTIL Dec. afternoon,
31, 1997 Atty. Dionisio S. Daga came to see me at my office at
the People's Bureau, Office of the Mayor, of Squatting case which
I filed against his clients;
PTR No. 63-T-033457
b. That after a brief exchange on the status of the case, he
ISSUED AT MLA. ON 1-2-97 confided to me his real purpose;
TAN—161-570-81 c. That he started off by saying that he was the legal counsel of
the gambling lords of Malabon for which he gets a monthly
Doc. No. 950; retainer of fifteen thousand pesos (P15,000.00), exclusive of
transportation expenses, etc.
Page No. 170;
d. The he also stated that the network of gambling lords
throughout the country is quite strong and unified;
Series of 1997.
e. That I then asked him: "What do you mean — is Alonte into
In her second Affidavit dated March 26, 1997, Atty. Balbin gambling too? that he is part of the network you speak of?"
declared in no uncertain language that the bribe offer for private
complainant to make a desistance was increased from P10,000.00
to P20,000.00, viz: f. That Atty. Daga did not reply but instead said: "they are
prepared to double the offer made to you by Atty. Romero which
was published in the newspapers" at P10 Million;
REPUBLIC OF THE PHILIPPINES )
g. That I told him that all the money in the world will not make me
CITY OF MANILA ) s.s. change my position against my client's executing a desistance, and
that only Alonte's voluntary surrender, plea of guilty in rape,
AFFIDAVIT conviction and the imposition of the corresponding penalty will
satisfy the ends of justice;
h. That I told him that my client's case is not isolated, there being
five (5) other minors similarly placed; and Alonte should be
stopped from doing more harm;
1. That I am the Private Prosecutor in the rape case filed by the i. That Atty. Daga then told me in Pilipino "if you do not accede to
"minor Juvie-Lyn Punongbayan against Mayor Bayani Arthur a desistance, then, they will be forced to . . .".
Alonte of Biñan, Laguna.
j. That because he did not complete his sentence, I asked him
2. That earlier, I reported to Secretary Teofisto Guingona, State directly: "What do you mean? What do you intend to do? And he
Prosecutor Jovencio R. Zuno, Asst. Chief State Prosecutor replied: Go on with the case Buy the Judge."
105
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
k. That unbelieving, I reacted, saying; "but they have already done
so, Judge Francisco at Binan suddenly changed his attitude
towards the Prosecution. Perhaps, you are referring to the next
judge when the petition for change of venue is finally granted?"
1. That Atty. Daga did not reply, and he reiterated that his
principals, referring to them again as "gambling lords," want a
desistance, after which he excused himself and left.
4. That I execute this Affidavit to attest to the truth of the incident
with Atty. Dionisio S. Daga which occurred in the afternoon of
March 6, 1997, at my Office, stressing herein my surprise over his
daring in making yet another monetary offer to me in exchange
for my client's desistance and my feeling of fear for the first time
since I started "handling" this case against Alonte;
5. That despite what I perceived as veiled threats of Atty. Daga, I
will seek justice in behalf of Juvie-Lyn Punongbayan, with the
indispensable initiatives, participation and support of the
Department of Justice under Secretary Teofisto Guingona.
FURTHER AFFIANT SAYETH NAUGHT.
SGD. REMEDIOS C. BALBIN
ATTY. REMEDIOS C.was the Affidavit of Desistance of the private complainant
Affiant
REPUBLIC OF THE PHILIPPINES )
CITY OF MANILA ) S.S.
SUBSCRIBED AND SWORN TO BEFORE ME this 26th day of March,
1997.
Community Tax Certificate — 5208733
Date Issued 2-10-97
Quezon City
Notary Public
SGD. JUANITO L. GARCIA
ATTY. JUANITO L. GARCIA
TROPANG POTCHI
NOTARY PUBLIC
finally resolved, I anticipate a still indefinite suspension of my
schooling to attend the hearings;
UNTIL DEC. 31, 1997
4. That during the entire period since I filed the case, my family
has lived a most abnormal life: my father and mother had to give
PTR NO. 63-T-033457
up their jobs; my younger brother, who is in fourth grade, had to
stop his schooling, like myself;
ISSUED AT MLA. ON 1-2-87
5. That I do not blame anyone for the long, judicial process; I
TAN -161-570-81
simply wish to stop and live elsewhere with my family, where we
can start life anew, and live normally once again;
Doc. No. 948;
6. That I pray that I be allowed to withdraw my complaint for rape
Book No. 190; and the other charge for child abuse wherein the Five-Man
investigating Penal of the Office of the State Prosecutor found
a prima facie case although the information has not been filed,
Page No. XLIII; and that I will not at any time revive this, and related cases or file
new cases whether, criminal, civil and/or administrative here or
Series of 1997. anywhere in the Philippines;
After the alleged bribe money was increased from P10M to P20M 7. That I likewise realize that the execution of this Affidavit will put
the complexion of the case changed swiftly. to doubt my credibility as a witness-complainant;
On June 25, 1997, Atty. Balbin filed a Motion to Resume 8. That this is my final decision reached without fear or favor,
Proceedings in Br. 25 of the RTC of Biñan, Laguna. Attached to the premised on a corresponding commitment that there will be no
Motion reprisals in whatever form, against members of the police force or
BALBIN
which states: any friends who extended assistance to me in whatever way, in
my search for justice.
I, Juvie-lyn Yambao — Punongbayan, 17 years of age, a resident of
No. 5 Uranus Street, Congressional Avenue Subdivision, Quezon WHEREOF, I affix my signature, this 25th day of June, 1997, in
City, duly assisted by private legal counsel and my parents, after Quezon City.
having duly sworn in accordance with law, depose and say:
SGD. JUVIE-
1. That I am the Complainant in the rape case filed against Mayor PUNONGBA
Bayani "Arthur" Alonte of Biñan, Laguna, with the RTC-Branch 25
of Binan, Laguna; JUVIE-LYN Y
PUNONGBA
2. That the case has been pending for some time, on preliminary
issues, specifically, (a) change of venue, filed with the Supreme Assisted by:
Court; (b) propriety of the appeal to the Court of Appeals, and
after its denial by said court, brought to the Office of the
President, on the veracity of the findings of the Five-Man SGD. REMEDIOS C. BALBIN
Investigating Panel of the State Prosecutor's Office, and the
Secretary of Justice and (c) a hold-departure order filed with the ATTY. REMEDIOS C. BALBIN
Biñan Court;
Private Prosecutor
3. That the legal process moves ever so slowly, and meanwhile, I
have already lost two (2) semesters of my college residence. And
In the presence of:
when the actual trial is held after all the preliminary issues are
106
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
SGD. PABLO PUNONGBAYAN
PABLO PUNONGBAYAN
Father
SGD. JULIE Y. PUNONGBAYAN
JULIE Y. PUNONGBAYAN
Mother
SUBSCRIBED AND SWORN to before me this 25 the day of June,
1997, in Quezon City.
SGD. ILLEGIBLE
Administering Officer
RTC Branch 94
Quezon City
Obviously, the Motion to Resume Proceedings was intended to
get the trial court's approval for the dismissal of the rape case
against the petitioners.
Indeed, three days thereafter or on June 28, 1997, Atty. Ramon C.
Casino moved in behalf of the petitioners to dismiss the petition
for change of venue then pending in this Court citing the affidavit
of desistance of the private complainant. On August 22, 1997,
however, Asst. Chief State Prosecutor Guiyab opposed the
motion. He alleged that he has control of the prosecution of the
rape case and that he was not aware of the desistance of the
private complainant.
The legal maneuvers to dismiss the rape case against the
petitioners on the basis of the alleged affidavit of desistance of
the private complainant did not find the favor of this Court. On
September 2, 1997, this Court unanimously granted the petition
for change of venue, ruling among others, viz:
xxx xxx xxx
These affidavits give specific names, dates and methods being
used to abort, by coercion or corruption, the prosecution of
Criminal Case No. 9619-B. It is thus incorrect for oppositors Alonte
and Concepcion to contend that the fear of the petitioner, her
private counsel and her witnesses are too generalized if not
fabricated. Indeed, the probability that in desisting from pursuing
her complaint for rape, petitioner, a minor, may have succumbed
to some illicit influence and undue pressure. To prevent possible
miscarriage of justice is good excuse to grant the petition to
transfer the venue of Criminal Case No. 9619-B from Biñan,
Laguna to the City of Manila.
IN VIEW WHEREOF, the Petition for Change of Venue from Biñan,
Laguna to the City of Manila is granted. The Executive Judge of
RTC Manila is ordered to raffle Crim. Case No. 9619-B to any of its
branches. The judge to whom Crim. Case No. 9619-B shall be
raffled shall resolve the petitioner's Motion to Resume
Proceedings filed in Br. XXV of the RTC of Biñan, Laguna and
determine the voluntariness and validity of petitioner's desistance
in light of the opposition of the public prosecutor, Asst. Chief
State Prosecutor Leonardo Guiyab. The branch clerk of court of
Br. XXV of the RTC of Biñan, Laguna is ordered to personally
deliver to the Executive Judge of Manila the complete records of
Crim. Case No. 9619-B upon receipt of this Resolution.
On September 17, 1997, Criminal Case No. 9619-B (re-docketed
by the Clerk of Court of Manila as Crim. Case No. 97-159955) was
raffled to Br. 53 of the RTC of Manila, presided by the respondent
judge, the Honorable Maximo A. Savellano.
On October 9, 1997, the respondent judge issued warrants of
arrest against the petitioners after a finding of probable cause.
On October 28, 1997, an Administrative Order of the DOJ was
issued empowering First Assistant City Prosecutor Marilyn R. O.
Campomanes to prosecute the case at bar. Asst. Chief State
Prosecutor Leonardo Guiab, Jr., who opposed the affidavit of
desistance was relieved from the case. The reason given in the
Administrative Order was ". . . in the interest of public service."
Prosecutor Campomanes was authorized "to move for its (case)
dismissal if the evidence on record so warrant . . ."1
The arraignment of the petitioners took place on November 7,
1997. The State was represented by Prosecutor Marilyn
Campomanes. Petitioner Alonte was represented by Atty. Jose
Flaminiano and Atty. Sigfrid A. Fortun. Petitioner Concepcion was
represented by Atty. Ramon C. Casano. Atty. Remedios Balbin who
had previously exposed under oath the threats to the life of the
private complainant and her witnesses and the repeated attempts
to buy complainant's desistance was absent. 2
Petitioners pled not guilty to the charge of rape upon their
arraignment. 3 Pre-trial was then waived by both the prosecution
and the defense. The proceedings continued and Prosecutor
Campomanes presented the private complainant, Ms.
TROPANG POTCHI
Punongbayan who testified on her affidavit of desistance. She
declared that her desistance was her "personal" decision with the
consent of her parents. 4 She said she was neither paid nor
pressured to desist. On questions by the respondent judge,
however, she affirmed the truth of her affidavit dated October 31,
1996 that she was raped by petitioner Alonte. Prosecutor
Campomanes marked and offered her affidavit of desistance as
Exhibit "A". 5 She called on other witnesses to testify on the
voluntariness of the affidavit of desistance. The parents of the
complainant — Pablo 6 and Julie 7 Punongbayan — declared that
they did not receive any monetary consideration for the
desistance of their minor daughter. Neither were they pressured
to give their consent to the desistance. Fourth Asst. Provincial
Prosecutor Alberto Nofuente averred that the affidavit of
desistance was signed and sworn to before him in the presence of
the complainant's parents and private counsel, Atty. Balbin. He
said he explained the affidavit to them and that the complainant
voluntarily signed the same. 8
After their testimonies, Prosecutor Campomanes made the
manifestation that "with the presentation of our witnesses and
the marking of our documents (sic) we are now closing the case
and that we are praying for the dismissal of the case. 9 The
respondent judge ruled "the case is submitted for
decision." 10 Atty. Flaminiano orally prayed that petitioner Alonte
be granted bail and Prosecutor Campomanes offered no
objection. 11
On November 10, 1997, petitioner Alonte filed an Urgent Motion
to Admit to Bai1. 12 In her Comment, Prosecutor Campomanes
agreed and averred, viz.: 13
xxx xxx xxx
1. That she received a copy of the Petition for Bail.
2. That on the hearing of the instant case on November 7, 1997,
the Prosecution presented its witnesses who vehemently signified
their intention not to further prosecute the case in Court and
there being no other witnesses to present, the undersigned is left
with no alternative but to seek the dismissal of the considering
that without the testimony of said witnesses this case has nothing
to stand on in Court.
3. That for the aforestated reason, the People interposes no
objection to the granting of Bail and in fact justice and equity
dictate that it joins the accused in his prayer for the granting of
bail in the amount of P150,000 (ONE HUNDRED FIFTY THOUSAND
PESOS).
107
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
4. That for the aforementioned bases, the People hereby
manifests its position that the case be immediately dismissed or
at least the accused be granted bail since the record proves that
there is no more evidence to sustain the charge against him such
that the granting of bail is proper and in order.
5. That as a general rule, a hearing on the petition for bail is
necessary to prove that the guilt is not strong but in this particular
case there is no need for hearing since the prosecution cannot
prove its case against the accused as it has no other evidence or
witnesses to be presented.
On November 17, 1997, petitioner Alonte, thru counsel, filed an
Urgent Plea to Resolve the Motion for Bail. 14 On the same date,
Prosecutor Campomanes manifested that "she deems it proper
and in accord with justice and fair play to join the aforestated
motion." 15
On November 25, 1997, December 1, 1997, December 8, 1997
and December 10, 1997, petitioner Alonte filed a Second, Third,
Fourth, and Fifth Motion early for resolution of his petition for
bail. 16 In all these motions, Atty. Fortun, counsel of petitioner
Alonte, alleged that copy of the motion . . . could not be served in
person upon the private prosecutor" (Atty. Balbin) in light of the
distance between their offices. 17 He relied on section 13, Rule 11
of the 1997 Rules on Civil Procedure. The motions were not
resolved by the respondent judge.
On December 18, 1997, the respondent judge promulgated his
Decision convicting the petitioners and sentencing them
to reclusion perpetua. On whether of the affidavit of desistance
can be a ground for dismissal of the rape case against the
petitioners, the respondent judge held:
The first issue to be determined and resolved is the "voluntariness
and validity of petitioner's desistance in the light of the opposition
of the public prosecutor Asst. Chief State Prosecutor Leonardo
Guiab." (p. 7, SC Resolution En Banc, dated September 2, 199/.7;
[Rollo, p. 253]) It is appropriate to quote again a portion of the 7-
page Resolution En Banc of the highest tribunal, to wit; "Indeed,
the probability (exists) that in desisting from pursuing her
complaint for rape, petitioner, a minor, may have succumbed to
some illicit influence and undue pressure. To prevent possible
miscarriage of justice is a good excuse to grant the petition for
change of venue . . ." (Rollo, p. 202).
The Court shall narrate the facts leading to the desistance of the
private complainant which are embodied in the two (2) affidavits
of her lawyer, Atty. Remedios C. Balbin, with whom the private
complainant lives at No. 5 Uranus St., Congressional Avenue
Subdivision, Quezon City. One affidavit is dated May 24 1997, (sic)
while March 26, 1997. The said affidavits are attached as exhibits
to the aforementioned Manifestation and Motion for the
Resolution of Petition for Change of Venue filed by the private
complainant Juvie-Lyn Y. Punongbayan. Exh. "C", dated May 24,
1997, (Rollo, pp. 216-219) is hereby quoted as follows:
xxx xxx xxx
It clearly appears in the abovequoted affidavit that repeated bribe
offers from a lawyer representing the accused Mayor Bayani
Arthur Alonte in the total amount of Ten Million Pesos
(P10,000,000.00) were made to Atty. Balbin, allocated as follows:
(1) Five Million Pesos (5,000,000.00) for the private complainant
Juvie-lyn Y. Punongbayan; (2) Three Million Pesos (P3,000,000.00)
for her (Atty. Balbin); and (3) Two Million Pesos (P2,000,000.00)
for the mediator.
In the subsequent affidavit, dated March 26, 1997, executed by
Atty. Remedios C. Balbin (Exh. F, Rollo, pp. 224-225) she narrated
in detail the continuing veiled threats and the very tempting and
escalating offer to increase the amount of the bribe money
offered to her and the private complainant after her first affidavit,
by doubling the first offer of Ten Million Pesos (P10,000,000.00)
to Twenty Million Pesos (P20,000,000.00), in exchange for her
client's desistance, but also accompanied with veiled threats, if
refused. Said affidavit is quoted, as follows:
xxx xxx xxx
The Court underscores paragraphs (b), (c), (d), (e), (f), (g), (h), (i),
(j), (k), and (l), particularly paragraphs (i), (j) and specially
paragraph (k) of the abovequoted affidavit of Atty. Balbin which
insinuates that the presiding Judge of the RTC Biñan, Laguna, had
already been bought, and that accused Alonte thru his numerous
emissaries, will also buy or bribe the "the next judge when the
petition for change of venue is finally granted." In view of this
insinuation, the undersigned presiding Judge is very careful in
deciding this case, lest he be placed under suspicion that he is also
receiving blood money that continues to flow. The Court wants to
have internal peace — the peace which money cannot buy.
Money is the root of all evil. The Holy Holy Scriptures also remind
judges and jurists: "You shall not act dishonestly in rendering
judgment. Show neither partiality to the weak nor deterrence to
the mighty, but judge your fellow men justly," (Leviticus 19:15).
The Scriptures further say: "What does it profit a man if he gains
the whole world but suffers the loss of his soul?" (Mt. 16:26) and
"No one can serve two (2) masters. . . You cannot serve God and
mammon." (Mt. 6:24, Luke 16:13). It is not out of place to quote
the Holy Scriptures because the Honorable Supreme Court has
been doing so in its quest for truth and justice. Thus, People
vs. Garcia, 209 SCRA 164, 174, the highest tribunal, in ruling that
TROPANG POTCHI
the flight of an accused is evidence of guilt on his part, quoted the
old Testament, as follows:
It was written in the literature of Old
Testament several centuries ago that:
The wicked man fleeth though no man
pursueth, but the righteous are as bold as a
lion.
(Proverbs, 28:1)
Subsequently, on June 25, 1997, the private complainant and her
lawyer suddenly somersaulted or changed their common
positions or attitudes in the prosecution of this case. Evidently,
veiled threats and money had replaced the "spiritual
consideration" which earlier, to them were "more important than
the material" to quote Atty. Balbin in her first affidavit (Rollo, p.
217), and her reply to Atty. Dionisio S. Daga that "all the money in
the world will not make me change my position against my client's
executing a desistance, and that only Alonte's voluntary
surrender, plea of guilty to rape, conviction and the imposition of
the corresponding penalty will satisfy the ends of justice.
On June 26, 1997, the private complainant thru her counsel, Atty.
Remedios C. Balbin, filed a Motion to Resume Proceedings, dated
June 25, 1997, (Rollo, pp. 238-244) praying therein that the RTC,
Biñan, Laguna, where this case was still pending, vacate its Order
to Suspend Hearings, to enable it to act on all incidents including
private Complainant's Affidavit of Desistance attached thereto.
(Rollo, pp. 240-241) which affidavit of desistance is quoted
hereunder as follows:
xxx xxx xxx
This Court, as the trier of facts, is tasked by the highest tribunal to
find out if the private complainant, a minor "may have succumbed
to some illicit influence and undue pressure, in order to prevent a
possible miscarriage of justice." Evidently, the veiled threats and
acceptance of the bribe money in allocated amounts which was
subsequently raised to the irresistible amount of at least
P20,000,000.00, compelled, impelled and/or tempted the private
complainant her father Pablo Punongbayan and her mother Julie
Y. Punongbayan, and her lawyer and private prosecutor Atty.
Remedios C. Balbin, who did not appear in Court on November 7,
1997, despite notice, to execute the said "Affidavit of Desistance"
which was the ultimate goal of the accused. It is very obvious that
the private complainant a minor, "succumbed to some illicit
influence and undue pressure," to borrow the language of the
Honorable Supreme Court En Banc. It would be the height of
extreme naivete or gullibility for any normal individual to
108
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
conclude otherwise. The Court does not believe that the private
complainant, her lawyer, and her parents charged but in exchange
for a plea of guilty the charge is reduced to homicide and the
accused is allowed to claim a number of mitigating circumstances.
It is not uncommon for estafa, libel, physical injuries and even
homicide cases to be dismissed because the complainant has lost
interest or alleged that the complaint was filed as a result of a
misunderstanding. A number of examples can be given and they
can fill a book."
Again, in People vs. Evangelista, L-45089, April 27, 1982, 113 SCRA
713, 720, the Supreme Court further declared:
It may be noted that the crimes in question (forcible abduction
with rape) are among those enumerated in Article 344 of the
Revised Penal Code, which crimes cannot be prosecuted de
officio. In other words, the crimes of abduction and rape are in the
nature of private offense, inasmuch as the law has reposed "the
right to institute such proceedings exclusively and successively in
the offended person, her parents, grandparents or guardian" . . .
Accordingly, if after filing the case at face at bar decided that she
was unable to face the scandal of public trial, or, if for some
private reason she preferred to suffer the outraged in silence,
then, corollary to her right institute the proceedings, she should
have been allowed to withdraw her complaint and desist from
prosecuting the case (Emphasis supplied).
Petitioner Concepcion did not submit any motion for
reconsideration. Without waiting for the resolution of his motion
for reconsideration, petitioner Alonte repaired to this Court. So
did petitioner Concepcion.
Without doubt, the petitions at bar raise two (2) fulcrum issues:
(1) the correctness of the ruling of the respondent judge that the
desistance of the complainant is not a ground to dismiss the rape
charge against the petitioners, and (2) the invalidity of petitioners'
conviction on the ground of denial of due process.
I agree with the learned disquisition of Mr. Justice Vitug that we
should set aside the conviction of the petitioners for patent
violation of their right to due process of law. I write this Separate
Opinion to highlight the erroneousness of the shocking stance of
the State Prosecutor that the rape charge should be dismissed in
view of the desistance of the private complainant. But our ruling
giving no effect on the affidavit of desistance should not based on
the reason that it was procured by threat or intimidation or any
payment of money as the respondent judge opined in his
Decision. The respondent judge arrived at this conclusion on the
basis of the affidavits of Atty. Balbin, the counsel of the private
complainant. This is erroneous for Atty. Balbin was never called to
the witness stand to testify on the truth of her affidavits. Her
affidavits therefore are hearsay evidence and should not have
been relied upon by the respondent judge. The affidavit of
desistance cannot abort the rape charge against the petitioners
on the simple ground that it did not state that the private
complainant-affiant was not raped by petitioner Alonte. In truth,
the private complainant affirmed her earlier Reply-Affidavit where
she narrated in detail how petitioner Alonte raped her. Moreover,
the rape charge has been filed in Court and it is not anymore the
absolute privilege of the camplainant to desist from continuing
with the case.
This separate opinion unequivocably addresses the issue of
whether the desistance of the victim can stop the further
prosecution of the petitioners.
I
In Philippine jurisprudence, desistance has been equated with
recantation or retraction.
To "recant" means to "withdraw or repudiate formally and
publicly;" 18 "to renounce or withdraw prior statement." 19 To
"retract" means to "take back;" "to retract an offer is to withdraw
it before acceptance." 20 A recantation usually applies to a
complainant or witness, either for the prosecution or the defense,
who has previously given an extra-judicial statement 21 or
testimony in court. 22 Repudiation may be made in writing, i.e., by
sworn statement, 23 or by testifying on the witness stand. 24
Mere retraction by a witness or by complainant of his or her
testimony does not necessarily vitiate the original testimony or
statement, if credible. 25 The general rule is that courts look with
disfavor upon retractions of testimonies previously given in
court. 26 This rule applies to crimes, 27 offenses 28 as well as to
administrative offenses. 29 The reason is because affidavits of
retraction can easily be secured from poor and ignorant
witnesses, usually through intimidation or for monetary
consideration. 30 Moreover, there is always the probability that
they will later be repudiated 31 and there would never be an end
to criminal litigation. 32 It would also be a dangerous rule for
courts to reject testimonies solemnly taken before courts of
justice simply because the witnesses who had given them later on
changed their minds for one reason or another. This would make
solemn trials a mockery and place the investigation of the truth at
the mercy of unscrupulous witnesses. 33
The general rule notwithstanding, the affidavit should not be
peremptorily dismissed as a useless scrap of paper. There are
instances when a recantation may create serious doubts as to the
guilt of the accused. 34 A retracted statement or testimony must
be subject to scrupulous examination. The previous statement or
testimony and the subsequent one must be carefully compared
TROPANG POTCHI
and the circumstances under which each was given and the
reasons and motives for the change carefully scrutinized. The
veracity of each statement or testimony must be tested by the
credibility of the witness which is left for the judge to decide. 35 In
short, only where there exists special circumstances in the case
which when coupled with the retraction raise doubts as to the
truth of the testimony or statement given, can a retraction be
considered and upheld. 36
A survey of our jurisprudence reveals that the same rule has been
applied to affidavits of desistance. 37 An affidavit of desistance is
understood to be a sworn statement executed by a complainant
in a criminal or administrative case that he or she is discontinuing
the action filed upon his or her complaint for whatever reason he
or she may cite. The court attaches no persuasive value to a
desistance especially when executed as an
afterthought. 38 However, a in retractions, an affidavit of
desistance calls for a reexamination of the records of the case. 39
In private crimes, an affidavit of desistance filed by a private
complainant is also frowned upon by the courts. Although such
affidavit may deserve a second look at the case, there is hardly an
instance when this Court upheld it in private crimes and dismissed
the case on the sole basis thereof. Indeed, a case is not dismissed
upon mere affidavit of desistance of the complainant, particularly
where there exist special circumstances that raise doubts as to
the reliability of the affidavit. 40
Usually in private crimes, an affidavit of desistance is executed by
the private complainant after pardoning and forgiving the
offender. In this instance, the court treats the affidavit as an
express pardon. 41 It does not ipso facto dismiss the case but
determines the timeliness and validity thereof.
Private crimes are crimes against chastity such as adultery and
concubinage, seduction, abduction, rape and acts of
lasciviousness. Their institution, prosecution and extinction are
governed by Article 344 of the Revised Penal Code, viz:
Art. 344. Prosecution of the crimes of adultery, concubinage,
seduction, abduction, rape and acts of lasciviousness. — The
crimes of adultery and concubinage shall not be prosecuted
except upon a complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without
including both the guilty parties, if they are both alive, nor in any
case, if he shall have consented or pardoned the offenders.
The offenses of seduction, abduction, rape, acts of lasciviousness,
shall not be prosecuted except upon a complaint filed by the
offended party or her parents, grand parents, or guardian, nor in
109
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
any case, the offender has been expressly pardoned by the above-
named persons, as the case may be.
In cases of seduction, abduction, acts of lasciviousness and rape,
the marriage of the offender with the offended party shall
extinguish the criminal action or remit the penalty already
imposed upon him. The provisions of this paragraph shall also be
applicable to the co-principals, accomplices and accessories after
the fact of the above-mentioned crimes.
Private crimes cannot be prosecuted except upon complaint filed
by the offended party. In adultery and concubinage, the offended
party must implead both the guilty parties and must not have
consented or pardoned the offenders. In seduction, abduction,
rape and acts of lasciviousness, the complaint must be filed by the
offended party or her parents, grandparents or guardian. The
complainant must not have expressly pardoned the offender.
Article 344 also provides for the extinction of criminal liability in
private crimes. It mentions two modes: pardon and marriage,
which when validly and timely made, result in the total extinction
of criminal liability of the offender. 42 The pardon in private crimes
must be made before the institution of the criminal action. 43 In
adultery and concubinage, the pardon may be express or implied
while in seduction, abduction, rape and acts of lasciviousness, the
pardon must be express. In all cases, the pardon must come prior
to the institution of the criminal action. After the case has been
filed in court, any pardon made by the private complainant,
whether by sworn statement or on the witness stand, cannot
extinguish criminal liability. The only act that extinguishes the
penal action and the penalty that may have been imposed is the
marriage between the offender and the offended party.  44
As this Court declared in the case of Donio-Teves v. Vamenta, Jr.: 45
The term "private crimes" in reference to felonies which cannot
be prosecuted except upon complaint filed by the aggrieved
party, is misleading. Far from what it implies, it is not only the
aggrieved party who is offended in such crimes but also the State.
Every violation of penal laws results in the disturbance of public
order and safety which the State is committed to uphold and
protect. If the law imposes the condition that private crimes like
adultery shall not be prosecuted except upon complaint filed by
the offended party, it is, as herein pointed earlier "out of
consideration for the aggrieved party who might prefer to suffer
the outrage in silence rather than go through the scandal of a
public trial." Once a complaint is filed, the will of the offended
party is ascertained and the action proceeds just as in any other
crime. This is shown by the fact that after filing a complaint, any
pardon given by the complainant to the offender would be
unavailing. It is true, the institution of the action in so called the
private crimes is at the option of the action of the aggrieved party.
But it is equally true that once the choice is made manifest, the
law will be applied in full force beyond the control of, and inspite
of the complainant, his death notwithstanding.
The filing of a complaint in private crimes is merely a condition
precedent to the exercise by the proper authorities of the power
to prosecute the guilty parties. 46 It is the complaint that starts the
prosecutory proceeding without which the fiscal and the court
cannot exercise jurisdiction over the case. 47 Once the complaint is
filed, the action proceeds just as in any other crime.
We follow the postulate that a criminal offense is an outrage to
the sovereign state 48 and the right of prosecution for a crime is
one of the attributes of the sovereign power.49 Thus, criminal
actions are usually commenced by the State, through the People
of the Philippines, and the offended party is merely a complaining
witness. 50 In private crimes, however, or those which cannot be
prosecuted de oficio, the offended party assumes a more
predominant role since the right to commence the action or
refrain therefrom, is a matter exclusively within his power and
option. 51 The sovereign state deems it the wiser policy, in private
crimes, to let the aggrieved party and her family decide whether
to expose to public view the vices, faults and disgraceful acts
occurring in the family.  52 But once the offended party files the
complaint, her will is ascertained and the action proceeds just as
in any other crime. The decision of the complainant to undergo
the scandal of a public trial necessarily witness connotes the
willingness to face the scandal. 53The private complainant is
deemed to have shed off her privacy and the crime ceases to be
"private" and becomes "public." The State, through the fiscal,
takes over the prosecution of the case and the victim's change of
heart and mind will not affect the State's right to vindicate the
outrage against the violation of its law. 54
This is the reason why pardon in crimes of chastity must come
before the institution of the criminal action. Pardon by the
offended party extinguishes criminal liability when made while the
crime is still "private" and within the control of the offended
party. But once the case is filed in court, the
pardon cannot ipso facto operate to dismiss the case. After the
institution of the criminal action, any pardon given by the
complainant to the offender would be unavailing, 55 except of
course when the offender validly marries the offended
party. 56 The offended party's pardon of the offender in a
seduction case after the criminal action had been instituted
constitutes no bar to said action. 57 A pardon given in a rape case
after the filing of the action in court "comes too late to hide the
shameful occurrence from public notice." 58
Even the death of the offended party cannot extinguish the case
once it is filed in court. 59 If the offended party dies immediately
after filing the complaint but before the institution of the criminal
TROPANG POTCHI
action, his death is not a ground to dismiss the case. 60 Clearly, the
will and participation of the offended party is necessary only to
determine whether to file the complaint or not. Thereafter, the
will of the State prevails.
Article 344 does not include desistance of the offended party from
prosecuting the case as a ground for extinction of criminal liability
whether 
total 61 or partial. 62 Hence, only when the desistance is grounded
on forgiveness and pardon and is made before the institution of
the criminal action, can it extinguish criminal liability.
Desistance, per se, is not equivalent to pardon.
In the case at bar, the "Affidavit of Desistance" of Juvielyn is not
an express pardon of the accused and the crime committed.
Private complainant desisted from prosecuting the case against
the petitioners because she wished "to start life anew and live
normally again." She reiterated this reason on the witness stand.
She complained that members of the media were bothering and
harassing her and that she wanted to go back to her normal life.
She never said that she forgave the petitioners. She did not
absolve them from their culpability. She did not give any
exculpatory fact that would raise doubts about her rape. She did
not say that she consented to petitioner Alonte's acts. Moreover,
the rape case is already in court and it is no longer her right to
decide whether or not the charge should be continued. As we
held in Crespo v. Mogul: 63
xxx xxx xxx
The rule in this jurisdiction is that once a complaint or information
is filed in court any disposition of the case as to its dismissal or
conviction or acquittal of the accused rests in the sound discretion
of the court. Although the fiscal retains the direction and control
of the prosecution of criminal cases even while the case is already
in court he cannot impose his opinion on the trial court. The court
is the best and sole judge on what to do with the case before it.
The determination of the case is within its exclusive jurisdiction
and competence. A motion to dismiss the case filed by the fiscal
should be addressed to the court who has the option to grant or
deny the same. It does not matter if this is done before or after
the arraignment of the accused or that the motion was filed after
a reinvestigation or upon instructions of the Secretary of Justice
who reviewed the records of the investigation.
II
The next issue is the validity of the conviction of petitioners.
Petitioners contend that they were convicted without undergoing
any trial. Respondent judge insists otherwise. He claims that
petitioners submitted the case on the merits and relied principally
110
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
on the Affidavit of Desistance. He recounts the events that took
place before the presentation of private complainant as revealed
by the transcripts of November 7, 1997, viz:
Prosecutor Campomanes
Your Honor, the complaining
witness/private complainant Juvielyn
Punongbayan is present here in Court, and
a while ago, I was given a copy of her
Affidavit of Desistance so I would like to
present her in order to attest to the veracity
of her Affidavit of Desistance, your Honor,
and for the Court to her testimony.
Court
We will have a separate trial, this involved a
heinous offense and that there is not even
any plea-bargaining in this case.
Prosecutor Campomanes
Yes, your Honor, I understand that.
Court
So you have to mark now your
documentary evidence in preparation for
trial.
Prosecutor Campomanes
Yes, your Honor.
Court
There are many documentary evidence
mentioned by the Supreme Court in its
seven (7) page . . . (may I see the record)
seven(7) page resolution, dated September
2, 1997, and that this case was assigned to
this Court as the trial Judge. This Court has
already arraigned the accused and he
pleaded not guilty, and so the next step is
pre-trial. The Order of the Supreme Court is
to direct this Court not only to determine
the voluntariness but also the validity of the
Affidavit of Desistance mentioned by the
Court which was also brought to the
attention of the Supreme Court.
Prosecutor Campomanes
And to the Department of Justice likewise
your Honor.
Court
And that's why the Supreme Court instead
of resolving it sent the records to this Court
to determine the voluntariness and the
validity of the Desistance, but they must be
determined after trial on the merits.
Prosecutor Campomanes
Your Honor please, representing the
people. Its events now will prove that there
is no more need for the prosecution to go
on trial of this case, considering that the
private complainant herself had already
furnished the Department of Justice a copy
of her Affidavit of Desistance.
Court
What does it say there?
Prosecutor Campomanes
That she is no longer interested in further
prosecuting this case, and that she is now
desisting in going to full blown trial, and
considering your Honor further, that this is
a private offense, then, the Department of
Justice feels that it can not be more popish
than the Pope.
Court
That is the stand of the Department of
Justice. But the Supreme Court belongs to a
different Department, I am governed by the
Supreme Court, because I am a Judge, I am
not from the Department of Justice.
TROPANG POTCHI
Prosecutor Campomanes
We are all aware your Honor, that we will
just be prolonging the agony, in fairness to
everybody, considering that we are
representing the people, but we are not
representing only . . . the Department of
Justice is not only representing the
complainant in this case but we are also for
justice to be rendered to the respondent as
well.
Court
I am rendering fair justice to everyone. That
is the sense of this Court. That is the
perception of this Court with respect to the
Supreme Court resolution, in the first place,
that Affidavit does not negate the
commission of the crime. You want us to
dismiss this case when the Affidavit does
not negate the commission of the crime?
Prosecutor Campomanes
That's why we will be presenting her in
Open Court, your Honor.
Court
Just to affirm that?
Prosecutor Campomanes
No to prove . . .
Court
What happened . . . how about the
Prosecution Department, they have control
of the prosecution, and the offended party
herself, has not negated the commission of
the crime, is there anything there to show
that she did not . . . that the accused . . . did
not commit the crime charged?
Prosecutor Campomanes
111
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
That's why we will be presenting her in
Open Court, whatever is not here will be
clarified.
Court
So, we will go to a trial on the merits you
present that affidavit, that's a part of your
evidence.
Prosecutor Campomanes
The people is ready to present that . . . the
complaining witness.
Court
We will have a trial on the merits.
Prosecutor Campomanes
Your Honor please, being a woman, I have
extensively discussed this matter with the
complaining witness and she intimated to
this representation that she can not bear
another day of coming here, with all these
people staring at her with everybody
looking at her as if she is something . . . .
Court
On December 13, 1996, petitioner
Punongbayan through private counsel, Atty.
Remedios C. Balbin and the Assistant State
Prosecutor Guiab, Jr. who is not here both
were relieved and changed with a new lady
prosecutor, prayed that the case be tried by
the Regional Trial Court of Manila, they
cited the following grounds: "THE GREAT
DANGER TO THE LIVES OF BOTH PRIVATE
COMPLAINANT AND THE IMMEDIATE
MEMBERS OF HER FAMILY AND THEIR
WITNESSES AS THEY OPENLY IDENTIFIED
THE PRINCIPAL ACCUSED MAYOR ALONTE
WHO IS ACKNOWLEDGED AS A POWERFUL
POLITICAL FIGURE AND ALMOST AN
INSTITUTION IN BIÑAN LAGUNA AND [THE]
GREAT DANGERS TO THE LIVES OF
WITNESSES WHO OTHERWISE WISH TO
COME OUT IN THE OPEN AND TESTIFY ON
THE MORAL AND CRIMINAL ACTIVITIES OF
BOTH ACCUSED PERPETRATED UPON VERY
YOUNG GIRLS STUDENTS OF BIÑAN
LAGUNA THAT WILL NOT DO SO IN THE
TERMS OF THE ACCUSED MAYOR" that is
why it was the prayer of the offended party
and the Supreme Court granted the Motion
for Change of Venue, and we are now on a
new venue, where the danger to the lives of
the witness is no longer present, on January
7, 1997, Alonte filed an Opposition thereto,
and on April 23, 1997, the petitioner, the
offended party through the Honorable
Secretary of Justice Teofisto Guingona and
Chief State Prosecutor Jovencito Zuno filed
a Manifestation and Motion for Resolution
of the Petition For Change of Venue.
Attached to the motion of the Honorable
Secretary of Justice Guingona and Chief
State Prosecutor Jovencito Zuno were the
affidavits of the petitioner, her lawyer, Atty.
Remedios Balbin, Dolores Yambao,
Bienvenido Salandanan and Evelyn Celso
with their contention that the prosecution
witnesses and the private counsel of
petitioner are exposed to kidnapping,
harassment, grave threats and tempting
offers of bribe money, that was the stand of
your department . . . And then later on June
28, 1997 . . . we have to review this case
because this involves public interest . . . on
June 23, 1997, Atty. Casano in behalf of the
oppositors, two (2) oppositors, filed a
motion to dismiss the petition for change of
venue in the Supreme Court on the ground
that it has become moot, he alleges that
the petitioner despite the motion to resume
the proceedings in criminal case no. 96-19-B
in said motion, the petitioner informed the
Court that she is desisting . . . informed the
Supreme Court that she is desisting from
proceeding with the case, it is the same
affidavit she prayed that the trial Court, on
her affidavit of desistance . . . Atty. Casano
also submitted to this Court, to the
Supreme Court the manifestation of the
petitioner joining the oppositors' prayer to
dismiss her petition to a change of venue,
the manifestation was also signed by Atty.
Remedios Balbin as private prosecutor, the
Supreme Court required Assistant Chief
State Prosecutor Leonardo Guiab to
comment on the motion to dismiss filed by
Atty. Casano which involve the same
TROPANG POTCHI
affidavit that you have just read. On August
22, 1997, assistant Chief State Prosecutor
Guiab filed his comment, he alleged that he
is not aware of the desistance of the
petitioner in criminal case no. 96-19-B, and
in said desistance there is two (2) legal
effect, [that] the public prosecutor has the
control and direction of the prosecution in
criminal action, he prayed for the denial of
the Motion to Dismiss and reiterated his
petition for change of venue, the Supreme
Court granted the change of venue and in
granting the change of venue the highest
tribunal which we are all subordinates, says:
for the record, in their manifestation and
motion for the resolution of petition to a
change of venue the Secretary of Justice
and Chief State Prosecutor submitted
various affidavits in support of their
allegations that prosecution witnesses and
private legal counsel are exposed to
KIDNAPPING, HARASSMENT, GRAVE
THREATS, AND TEMPTING OFFERS OF BRIBE
MONEY all intended to extract an affidavit
of desistance from the complainant, this is
now the affidavit of desistance in her
affidavit dated December 16, 1996, the
petitioner the offended party, the herein
offended party Juvielyn Punongbayan
alleged etc . . . etc . . . in support of her
petition and then she alleged that during
the last week of Feb. 1997, she was visited
by one Lourdes Salaysay, she stated that
Mrs. Salaysay told her that Mrs. Alonte,
wife of Mayor Alonte requested her to
settle Alonte's case, she was informed that
Mrs. Alonte was offering P10,000,000.00,
will send her to school and give her house
and send her parents abroad, Atty.
Remedios C. Balbin is not here now, I am
just quoting the Supreme Court counsel,
private counsel of petitioner also executed
an affidavit dated February 1997, quote: the
Supreme Court quote to them: to put on
record the attempting, influence, directly, in
exchange of valuable consideration, that
the Rape charge against Mayor Bayani
Arthur Alone, she alleged that in two (2)
occasions Atty. Romero conveyed to me the
message of Mayor Alonte, namely: to drop
the rape case against him and that he
would give a consideration of
P10,000,000.00 to be apportioned as
follows: P5,000.00, for the private
112
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
complainant, your client and the prosecutor
P3,000,000.00 for me, as private
prosecutor, that is what Atty. Balbin said,
P4,000,000.00 for her, the mediator, so
there seems to be a liberal flow of blood
money, that is why the Supreme Court
ordered the Court to determine the validity,
and there is another, dated March 19, 1997.
I have to remind everybody about what
happened, this thing did not come from me,
I am not fabricating anything this comes
from the highest tribunal jurat, to whom I
am responsible another affidavit of Atty.
Balbin, she narrated the continuing
attempts to bribe her and threatened her,
so there were continuing events, they
alleged, the People's Bureau, Office of the
Mayor of Quezon City, extensively discuss
the squatting case with against his client,
that after a brief exchange on the status of
the case, they confided to me his real
purpose, that it started of by saying he was
the legal counsel of the gambling lords of
Malabon for which he get a monthly
retainer of P15,000.00 exclusive of
transportation expenses, but he also stated
that he knows all the network of the
gambling lord throughout the country,
which is quite strong and unified, that I then
ask him "what do you mean?" "Is Alonte
into gambling too, that he is part of the
network you speak of?", that Atty. Daga did
not reply, but instead said, they are
prepared to double the offer made to by
Atty. Romero which was published in the
newspaper at P10,000,000.00, so, its
double, double your money, so its
P20,000,000.00, that I told him, its Atty.
Balbin, that all the money in the world, all
the money in the world will not make me
change my position against my client
executing a desistance and that Alonte's
voluntary surrender plea of guilty to rape,
conviction, and the imposition of the
corresponding penalty will satisfy the ends
of justice, but I told him, that my client's
case is not isolated, there being five (5)
other miners similarly place and Alonte's
will be stopped from doing more harm that
Atty. Daga, then told me in Filipino if you do
not accede to a desistance, then they will
be force to but because he did not
[complete] the sentence I asked him
directly, what do you mean, what do you
TROPANG POTCHI
intend to do, and he replied, go on with the Prosecutor Campomanes
case, [buy] the judge, [buy] the judge, that I
am believing, and I reacted saying, but they
So we go on trial your Honor, and we will
have already done so, Judge Francisco
present the complaining witness, and let
Binan, Judge Francisco Binan suddenly
the Court decide on the basis of the
change his attitude towards the
complainants testimony . . . private
prosecution, perhaps you are referring to
complainant's testimony, before this
the next judge when the petition for change
Honorable Court . . .
of venue is finally granted that Atty. Daga
did not reply, and he reiterated that his
principal referring to them again as xxx xxx xxx
gambling lords, wanted desistance, after
which he excused himself and left, that I Prosecutor Campomanes
execute this affidavit, as Atty. Balbin attests
to the truth of the incident with Atty.
Dionisio Daga which occurred in the That's why we are presenting the private
afternoon of March 6, 1997 at my office, complainant, the principal witness, the
stating . . . (JUDGE READING THE RECORDS mother who is also a signatory to this
OF THE CASE) affidavit of desistance, everybody who have
been a part and participant in the making
and preparation of this affidavit of
Court desistance, they have already signed these
affidavit of desistance.
Then, the Supreme Court said, these
affidavits, the one attached gave specific Court
names, dates and methods . . . a coercion of
corruption, the prosecution of Criminal Case
No. 96-19-B (JUDGE CONTINUED READING And we also have the affidavits mentioned
THE RECORDS OF THE CASE) that is desisting by the Supreme Court, because I was . . . all
for pursuing her complaint for Rape of those documents in the determination of
petitioner a minor, they have . . . illicit, whether that affidavit is valid.
influence and due pressure to prevent . . .
Criminal Case No. 96-19-B to any of its Prosecutor Campomanes
Branch, just to call the Criminal Case No. 96-
19-B shall be raffled, shall result the
petitioner's motion, to resume proceedings Yes, your Honor.
filed in Branch 26 in the RTC of Laguna, to
determine the voluntariness and validity of Court
the petitioner's desistance in the light of the
position of the public prosecutor, Assistant
We . . . the Court cannot close his eyes to
Chief Prosecutor Leonardo Guiab . . . I don't
the other affidavits . . . because . . . that's
know what will be the outcome . . . you may
why precisely the Supreme Court ordered
contend that because of that affidavit of the
me to hear this case.
desistance there is reasonable doubt . . .
etc . . . but still, that will be placing the cart
before the horse . . . you have to go a Prosecutor Campomanes
regular trial on the merits . . . because this is
a heinous offense which cannot . . . and We understand that your Honor.
during the pre-trial cannot be subject to a
plea-bargaining, and with respect to its new
law which took effect in 1993, that is a new Court
one, it was placed to the category of a
heinous offense . . .
113
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
There are may conflicting matters to be
solve . . . conflicting matters to be tackled in
this case.
Prosecutor Campomanes
May we present the private complainant,
your Honor . . . . 64
The records show that the hearing of November 7, 1997 was set
for arraignment of the petitioners. 65 After the counsels made
their respective appearances, Prosecutor Campomanes presented
her authority to appear as prosecutor in lieu of Asst. Chief State
Prosecutor Guiyab, Jr. Both petitioners pleaded not guilty to the
charge. Respondent judge then set the case for pretrial which the
parties, however, waived. The proceedings continued and
Prosecutor Campomanes manifested there was no need for the
prosecution to go to trial in view of the Affidavit of Desistance of
the private complainant. Respondent judge, however, observed
that private complainant did not negate the commission of the
crime in her Affidavit of Desistance. Respondent judge expressed
his misgivings on the validity of the Affidavit of Desistance
because of the September 2, 1997 Resolution of this Court citing
affidavits where allegations of bribery were made to extract said
affidavit from complainant. Prosecutor Campomanes then offered
to present the private complainant to attest to the voluntariness
and veracity of her Affidavit of Desistance. Respondent judge
averred whether the court should proceed to a trial on the merits.
Prosecutor Campomanes declared that they could go on trial and
let the court decide the merits of the case on the basis of the
testimony of private complainant and the other witnesses. It was
then that private complainant was presented as a witness.
From the garbled transcripts of the hearing on November 7, 1997,
it is not clear what both respondent judge and the public
prosecutor intended the proceedings to be. Respondent judge
repeatedly declared that the proceedings before him was to be a
trial on the merits. The public prosecutor agreed to go to trial, but
at the same time moved to present private complainant and her
witnesses to testify on the voluntariness of her Affidavit of
Desistance. Respondent judge and the public prosecutor were,
obviously, not tuned in to each other.
I agree with the majority that the November 7, 1997 proceedings
could not have been a trial on the merits. First of all, the
proceedings did not conform with the procedure for trial as
provided in the 1985 Rules on Criminal Procedure. Section 3 of
Rule 119 provides:
Sec. 3. Order of Trial. — The trial shall proceed in the following
order:
(a) The prosecution shall present evidence to prove the charge
and, in the proper case, the civil liability.
(b) The accused may present evidence to prove his defense, and
damages, if any, arising from the issuance of any provisional
remedy in the case.
(c) The parties may then respectively present rebutting evidence
only, unless the court, in furtherance of justice, permits them
present additional evidence bearing upon the main issue.
(d) Upon admission of the evidence, the case shall be deemed
submitted for decision unless the court directs the parties to
argue orally or to submit memoranda.
(e) However, when the accused admits the act charged or
omission charged in the complaint or information but interposes
lawful defense, the order of trial may be modified accordingly.
In the case at bar, petitioners were never instructed to present
evidence to prove their defenses. The parties were never given
the opportunity to present their respective evidence rebutting the
testimony of private complainant. There was no admission by
petitioners of the charge in the information as to justify a change
in the order of trial. 66
Our criminal rules of procedure strictly provide the step by step
procedure to be followed by courts in cases punishable by
death. 67 This rule also applies to all other criminal cases,
particularly where the imposable penalty is reclusion perpetua.
The reason for this is to assure that the State makes no mistake in
taking life and liberty except that of the guilty. 68 Thus:
Judges should be reminded that each step in the trial process
serves a specific purpose. In the trial of criminal cases, the
constitutional presumption of innocence in favor of the accused
requires that an accused be given sufficient opportunity to
present his defense. So with the prosecution as to its evidence.
Hence, any deviation from the regular course of trial should
always take into consideration the rights of all the parties to the
case, whether the prosecution or defense. 69
Second, the admission of private complainant's affidavit of
October 21, 1996 was made solely in response to respondent
judge's own questioning. 70 It was this affidavit which respondent
judge used to convict the petitioners. This affidavit, however, was
not marked nor was it formally offered before the court. The
Revised rules on Evidence clearly and expressly provide that "[t]he
court shall consider no evidence which has not been formally
TROPANG POTCHI
offered." 71 Evidence not formally offered in court will not be
taken into consideration by the court in disposing of the issues of
the case. Any evidence which a party desires to submit for the
consideration of the court must formally be offered by
him, 72 otherwise it is excluded and rejected. 73
Third, where there is a doubt as to the nature of the criminal
proceedings before the court, this doubt must be resolved in
favor of the accused who must be given the widest latitude of
action to prove his innocence. 74 It is in petitioners' favor that the
proceedings of November 7, 1997 be treated as a hearing on the
motion to dismiss, not a trial on the merits. To rule otherwise will
effectively deny petitioners due process and all the other rights of
an accused under the Bill of Rights and our Rules in Criminal
Procedure.
Indeed, following respondent judge's finding and assuming that
the November 7, 1997 hearing was already a trial on the merits,
petitioners were never afforded their right to confront and cross-
examine the witness. The court did not, at the very least, inquire
as to whether the petitioners wanted to cross-examine private
complainant with respect to her affidavit of October 21, 1996. No
opportunity to cross-examine was afforded petitioners and their
counsels such that they cannot be deemed to have waived said
right by inaction. 75
Regalado, Davide, Jr., Romero, Bellosillo, Mendoza and
Panganiban, JJ., concur.
 
Separate Opinions
PUNO, J., separate opinion;
The facts are critical and need to be focused. Petitioners were
charged with rape in Criminal Case No. 15993 which was raffled to
Br. 25 of the RTC of Biñan, Laguna. The charge is principally based
on the following affidavit dated October 31, 1996 of Ms. Juvie-Lyn
Punongbayan, a 16-year old minor, viz.:
REPLY-AFFIDAVIT
(TUGON SA MGA SALAYSAY NILA MAYOR BAYANI ALONTE, WELLA
CONCEPCION, RICARDO LACAYAN at JAIME MENDOZA)
Ako si JUVIE-LYN Y. PUNONGBAYAN, Filipino, walang asawa, 16
years old, at kasalukuyang nasa pangangalaga ng Department of
Social Welfare and Development, matapos makapanumpa ayon sa
batas, ay nagsasaad:
114
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
1. Wala pong katotohanan ang lahat nakasaad sa mga salaysay ni
Mayor Bayani Alonte at Buenaventura "Wella" Concepcion, ng
kanilang mga testigo na sila Ricardo (Ading) Lacayan y Aguilar at
Jaime Bagtas Mendoza.
2. Ang totoo po ay inabuso ako ni Mayor nung September 12,
1996, katulad nga ng naihayag ko na sa aking sinumpaang
salaysay. Ayon sa driver ng tricycle na nasakyan ko pagkatapos ng
insidente, hindi lang po ako, kundi marami pa pong babae ang
inabuso ni Mayor. Sabi pa nga ng driver ay naaawa siya sa akin, at
lumaban daw ako. Tinawagan ko na rin po ang lahat ng mga
babae na naging biktima ni Mayor; wag silang matakot, lumabas
at ilahad ang pangaabuso ni Mayor.
Ang detalya nung panggagahasa
ni Alonte at ang partisipasyon
ni Wella Concepcion
3. Nakalahad po sa sumusunod na talata ang detalya ng pang-
aabuso sa akin ni Mayor. Pinakikita rin dito kung paano
nakipagsabwatan kay Wella Concepcion. Sa pamamagitan nito ay
mapapabulaanan na rin ang mga nakasaad sa salaysay nila at ng
mga testigo nila.
4. Nakilala ko si Wella Concepcion, dance instructor, nung
bandang last week ng August 1996. Noon ay naghahanda ako para
sa "Miss Education" beauty contest sa Perpetual Help College of
Laguna. Doon ako nag-aaral. First year college ako, at education
ang kursong pinili ko. Ang nasabing contest ay ginanap nung Sept.
20, 1996. Kapag nagkikita kami ni Wella para sa ensayo,
nagkukuwentuhan din kami, at nabanggit niya na may kaibigan
siyang bakla na nagdadala ng babae kay Mayor Alonte. Waway
daw ang pangalan ng bakla. Hindi ko pa kilala si Waway noon.
5. Nung Sept. 7, niyaya ako ni Wella na sumali sa dance contest sa
"Sang Linggo NAPO SILA" sa Channel 2, na itatanghal sa Sept. 11,
1996. Wala na daw po akong aalalahanin. Siya daw ang bahala sa
costume at transportation. Pumayag ang nanay ko, dahil wala na
kaming gagastusin. Hindi ko tinanong kay Wella kung saan galing
ang costume. Akala ko may ipapagamit lang siya sa akin.
6. Nung Sept. 8, pinakilala ni Wella si Waway sa akin. Si Waway
ang nagturo sa amin ng sayaw para sa TV contest. Mula nung
araw na yon hanggang Sept. 10 ay nagsanay kami sa bahay ng
kapatid ni Waway sa St. Francis Subdivision, Biñan, Laguna. Tatlo
kami sa dance group: ako at ang dalawang lalaki na ipinakilala sa
akin ni Waway: si Melchor at Darius.
7. Nagpunta kami sa studio sa Delta nung Sept. 11. Bago kami
magsayaw, habang inaayos ni Wella yung damit ko, sinabi niya na
dapat manalo kami dahil si Mayor Alonte daw ang nag-sponsor ng
costume namin. Noon ko lang ito nalaman. Hindi kami nanalo sa
contest, pero nagkaroon pa rin kami ng premyong P1,500.00 na
pinaghatian namin.
8. Pagkatapos ng contest, at nung nakapagpalit na ako ng damit,
binabalik ko kay Wella ang costume ko. Sabi niya iuwi ko daw ito
dahil gagamitin ko ito sa Miss Education contest, sa presentation
ng mga candidates. Mula sa studio, nagpunta kaming lahat sa
isang kainan sa tapat ng Delta at, pagkatapos namin kumain,
humiwalay yung ibang kasama namin.
9. Dinala ako ni Wella sa isang department store at binili niya ako
ng sandals. Inikot niya ako sa lugar na yon at binili niya ako ng
pagakain. Tapos ay sumakay kami ng bus pauwi sa Laguna. Nung
nasa bus kami, niyaya ako ni Wella na magpunta sa bahay ni
Mayor para magpasalamat ng personal para sa costume namin.
Pumayag ako at sabi ko kay Wella na sunduin niya ako sa bahay ng
10:00 a.m. sa susunod na araw, Sept. 12. Nakarating ako sa bahay
ng 5:00 p.m. ng araw na yon, Sept. 11.
10. Nung Sept. 12, hinintay ko si Wella ng 10:00 a.m. Nung hindi
siya dumating umalis kaming Tita ko dahil sinamahan ko siya sa
health center. Sumundo pala si Wella doon, pero hindi kami
nagkita kasi saglit lang kami doon. Bumalik siya sa bahay, at doon
na kami nagkita. Tapos ay umalis kami ni Wella papunta kay
Mayor. Tumawid kami ng kalye, at pumara ako ng tricycle. Pero
kahit marami na akong pinara, ayaw ni Wella na sumakay doon.
Maya-maya, may tricyle na dumating na hindi naman pinara ni
Wella. Basta huminto na lang sa harap namin. Doon kami
sumakay ni Wella. Si Wella ang nagturo sa driver kung saan kami
pupunta. Nag-uusap sila ng driver habang papunta kami kay
Mayor.
11. Bumaba kami sa tapat ng bahay na bukas ang gate. May
swimming pool sa loob, alam na alam ni Wella and, pasikot-sikot
nang bahay; tuloy-tuloy siya sa loob at sumunod naman ako. Wala
kaming taong nakita, pero bukas pati yung pintuan ng bahay.
Dinala ako ni Wella sa sala. Napakaganda ng loob ng bahay.
Mayroong wall paper na may design na leaves and flowers; may
carpet sa sahig. May mahabang hagdan patungo sa dalawang
pintuan.
12. Tinanong ko kay Wella kung nasaan si Mayor. Sabi niya ay
nasa munisipyo daw; darating na daw maya-maya. Pagkaraan ng
mga 15 minutes, dumating si Mayor na nakasakay sa green na
kotse. Lumabas siya sa kaliwang pintuan sa harap ng kotse. Wala
siyang kasama.
TROPANG POTCHI
13. Pumasok si Mayor sa loob ng bahay. Naghubad siya ng
sapatos. Sabi ni Wella: "Mayor, si Juvie; Juvie si Mayor."
14. Umupo si Mayor sa tabi ko. Kinamayan niya ako at sinabi niya:
"Hi, I'm Arthur" sabay hinalikan niya sa ako sa lips. Hindi ako naka-
react dahil nagulat at kinabahan ako.
15. Nagmamadaling nagpaalam si Wella. Kinuha ni Mayor ang
wallet sa bulsa sa likod ng kanyang pantalon. Dumukot siya ng
P1,000 na buo. Inabot niya ito kay Wella. Patayo na ako pero
hinawakan ni Mayor ang braso ko. Wag daw akong sasama kay
Wella. Sinabi ko kay Wella na wag niya akong iiwanan, pero
parang wala siyang narinig. Basta tuloy-tuloy siyang umalis.
16. Nung, kami na lang ni Mayor ang natira, pinainom niya ako ng
mineral water. Uminom ako dahil nauuhaw ako. Nanlabo ang
paningin ko at nanghina ako.
17. Nawalan ako ng malay. Ang sumunod ko na lang na
natatandaan ay nandoon na ako sa kwarto. Wala akong damit.
Nakadagan si Mayor sa akin. May malaking salamin sa pader.
Doon ko nakita na walang kadamit-damit si Mayor.
18. Hawak ako ni Mayor sa magkabilang braso. Pinipisil niya ito
kaya nagkaroon ako ng pasa sa kaliwang braso (at ito ay nawala
lang pagkatapos ng tatlong araw).
19. Naramdaman ko na pilit na pinasok ni Mayor ang ari niya sa
aking ari. Nasaktan ako. Nagmakaawa ako. Umiiyak ako nung
sinabi ko sa kanya na tigilan niya ako; nasasaktan ako; may anak
rin siyang babae. Sabi niya wag daw akong maingay at i-embrace
ko na lang daw siya. Lalo akong umiyak dahil nandidiri ako sa
kanya, at sa ginagawa niya sa akin. Naghalo ang galit, pandidiri at
takot. Wala akong magawa kundi magmakaawa. Hindi ko siya
maitulak dahil nanghihina ako, nakadagan siya sa akin, mataba
siya, at hawak-hawak niya ang braso ko. Pero kahit
nagmamakaawa ako, tinuloy pa rin niya at pinasok niya ulit ang ari
niya sa aking ari.
20. Maya-maya ay tumigil siya. Tumayo siya at sabi niya: "ang
panty mo, nasa tabi mo." Kinuha ko ang panty ko, tumayo ako at
sinuot ko ito. Hinanap ko ang damit ko, at nakita ko ang walking
shorts, bra at t-shirt ko sa sahig. Pinulot ko ito at sinuot ko.
Habang sinusuot ko, umiiyak pa rin ako. Pagkatapos kong
magbihis, umupo ako sa mahabang upuan sa may gilid ng kama.
21. Samantala, paqkatapos sabihin ni Mayor na nasa tabi ko ang
panty ko, nagpunta siya sa banyo na transparent ang pinto. Wala
siyang suot pagpunta niya doon. Paglabas niya, nakasuot na siya
ng checkered brief na kulay black and white. Pumunta siya sa
kabilang gilid ng kama. Kinuha niya ang damit niya na nakahanger
115
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
sa pader. Sinuot niya ito. Lumabas siya ng kwarto. Hindi nagtagal
ay pumasok siya ulit at sinabi niya na nandiyan na daw ang sundo
ko.
22. Tumayo ako. Sinabi ko na aalis na ako. Nung papunta na ako
sa pintuan, lumapit si Mayor sa akin. May hawak-hawak siyang
dalawang pirasong P1,000. Tiniklop niya ito; binaba niya yung
neckline ng t-shirt ko, at pinasok niya ang pera sa aking bra.
Nagalit ako. Kinuha ko ang pera at tinapon ko ito sa kanya. Sabi ko
hindi ako bayarang babae. Nagalit siya at pinagbantaan ako. Sabi
niya: "Pag nagsalita ka, alam mo na kung ano ang mangyayari sa
iyo." Tiningnan ko siya, at umalis ako pababa.
23. Mayroon tricycle na nakaabang sa labas. Sumunod si Mayor.
Lumapit siya sa driver at binigyan niya ito ng P100. Tapos ay
umalis na kami.
24. Umiiyak pa rin ako nung nasa tricycle. Sabi ko sa driver na
ginahasa ako ni Mayor. Sabi niya masuwerte daw ako at maaga
akong pinauwi dahil yung mga ibang babae daw na dinadala kay
Mayor ay pinauwi ng madaling-araw o hating-gabi. Minsan dalawa
o tatlo pa nga daw ang dinadala doon, at yung iba ay naka-
uniform pa. Naawa daw siya sa akin, kaya magsumbong daw ako.
Nakokonsensiya daw siya dahil isa siya sa dalawang tricycle driver
na naghahatid ng mga babae doon. Sabi pa nga niya, babae din
daw ang ina niya, kaya din siya nakokonsensiya. Dinagdag pa niya
na kung may kasiyahan kina Mayor, isang van ng mga babae ang
nadoon. Pagdating namin sa bahay ng Lola ko, sabi niya bago siya
umalis: "Lumaban ka."
On December 13, 1996, the private complainant thru her counsel,
Atty. Remedios C. Balbin and Asst. Chief State Prosecutor
Leonardo Guiab, Jr., of the Department of Justice petitioned this
Court for a change of venue. They cited as ground the "great
danger to the lives of both the private complainant, the
immediate members of her family, and their witnesses as they
openly defy the principal accused, Mayor Alonte who is
acknowledged as a powerful political figure and almost an
institution in Biñan, Laguna . . ."
On March 31, 1997, the private complainant, thru the then
Secretary of Justice, the Honorable Teofisto Guingona and Chief
State Prosecutor Jovencio Zuno filed a Manifestation and Motion
for the early resolution of the petition for change of venue. They
submitted the affidavits of the private complainant, her counsel
Atty. Remedios C. Balbin, Dolores Mercado-Yambao, Bienvenido
Salandanan and Evelyn Celso to prove their allegation that they
"are exposed to kidnapping, harassment, veiled threats and
tempting offers of bribe money — all intended to extract an
'affidavit of desistance' from the private complainant." Worth
bright lining are the two (2) affidavits of Atty. Remedios C. Balbin,
counsel for the private complainant, relating the fantastic amount
of P10M bribe money allegedly offered to her. The first affidavit
dated February 24, 1997 states:
I, Remedios C. Balbin, of legal age, Filipino, married, with
residence at #5 Uranus Street, Congressional Avenue Subdivision,
Quezon City, after having duly sworn in accordance with law,
depose and say:
1. That I am the Private Prosecutor in Criminal Case No. 96-19-B
for rape, filed with the Biñan RTC, Branch 25, entitled "People of
the Philippines vs. Bayani Arthur Alonte, et al.;
2. That as Private Prosecutor, it is my avowed duty to be faithful
to the interests of my client, Ms. Juvie-lyn Punongbayan;
3. That on several occasions, I was visited at my Office at the
Quezon City Hall Compound, by a lawyer who introduced himself
as Atty. Leo C. Romero, representing the Accused Mayor Bayani
Arthur Alonte;
4. That my calendar at the People's Bureau, Quezon City Hall,
shows that he came to see me about eight (8) times, but we
talked only about three (3) times because I was always busy
attending to the problems of Quezon City's urban poor and the
landowners of private properties illegally occupied by them;
5. That in two (2) occasions, Atty. Romero conveyed to me the
message of Mayor Alonte, namely, to drop the rape case against
him, and that he would give a consideration of Ten Million Pesos
(P10 Million) to be apportioned as follows:
Five Million Pesos (P5M) — for the Private Complainant
Three Million Pesos (P3M) — for me as Private Prosecutor
Two Million Pesos (P2M) — for him as the mediator
6. That I explained to Atty. Romero that money does not matter at
all to the Complainant and her family even if they have very
modest means; that they want justice, which means a conviction
for the charge of rape;
7. That I also explained to Atty. Romero that the money he was
offering me was of no consequence to me because I had access to
the resources of my two (2) daughters, both of whom are in the
medical field abroad, and of Mr. Filomeno Balbin, Labor Attached
then assigned in Riyadh;
TROPANG POTCHI
8. That I told him that I cannot be tempted with his offer because
spiritual consideration are more important to me than the
material. Also, that I usually handle cases pro bono (at abunado
pa) where the litigant is in dire need of legal assistance but cannot
afford to pay for the lawyer's fees, as in Juvie-lyn's case;
9. That I gave Atty. Romero a copy of the decision of the Supreme
Court promulgated December 10 1996, entitled "People of the
Philippines vs. Robert Cloud" (GR No. 119359: Crim. Case No. Q-
90-12660) for parricide involving the death of a 2 1/2 year old
boy. I wrote on page one of the xerox copy of the decision: "To
Atty. Leo Romero — so you will understand," and to which I
affixed my signature.
10. That I told him explicitly: "we cannot simplify the entire
proceedings. You advise Mayor Alonte to surrender (one
mitigating circumstance), plead guilty (another mitigating
circumstance), get a conviction and suffer the corresponding
penalty. Otherwise, we have nothing to talk about."
11. That I emphasized that his suggestion for Mayor Alonte to
plead guilty to "act of lasciviousness" merely was ridiculous;
12. That when the Complainant's Affidavit on the offer of Ms.
Emily Vasquez for a valuable consideration in exchange for an
affidavit of desistance in the rape was exposed by media, Atty.
Romero came to see me and thanked me for not exposing him in
similar fashion. I assured him that he will not be an exception and
that I was just too busy then to execute an affidavit on the matter,
as I do now;
13. That I have not received other similar offers of valuable
material consideration from any other person, whether private
party or government official; However, I have been separately
advised by several concerned persons that I was placing my
personal safety at great risk. The victim's family will have great
difficulty in finding another lawyer to "adopt" them in the way I
did, which gives them strength to pursue their case with
confidence and the accused Mayor is aware that I am the obstacle
to an out-of-court settlement of the case. Also, that I had my
hands full, as it is, as the Head of the QC People's Bureau, Housing
Development Center, and Special Task Force an Squatting and
Resettlement, and the numerous cases filed by me or against me,
connected with my performance of official duties, and I should
not add more legal problems despite my authority to engage in
private law practice.
14. That this affidavit is executed in order to put on record the
attempt to influence me directly, in exchange for valuable
consideration to drop the rape charge against Mayor Bayani
Arthur Alonte.
116
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

February 24, 1997, City of Manila. CITY OF MANILA ) s.s. g. That I told him that all the money in the world will not make me
change my position against my client's executing a desistance, and
that only Alonte's voluntary surrender, plea of guilty in rape,
SGD. REMEDIOS
AFFIDAVIT
C.
conviction and the imposition of the corresponding penalty will
BALBIN
satisfy the ends of justice;
I, REMEDIOS C. BALBIN, of legal age, Filipino, married, and with
REMEDIOS C.
postal
BALBIN
address at No. 5 Uranus Street, Congressional Avenue
h. That I told him that my client's case is not isolated, there being
Subdivision Quezon City, after having duly sworn in accordance
five (5) other minors similarly placed; and Alonte should be
with law, depose and say:
SUBSCRIBED AND SWORN to before me this 26th day of March, stopped from doing more harm;
1997, Metro Manila.
1. That I am the Private Prosecutor in the rape case filed by the
i. That Atty. Daga then told me in Pilipino "if you do not accede to
"minor Juvie-Lyn Punongbayan against Mayor Bayani Arthur
Community Tax Certificate — 5208733 a desistance, then, they will be forced to . . .".
Alonte of Biñan, Laguna.

Date Issue 2-10-97 j. That because he did not complete his sentence, I asked him
2. That earlier, I reported to Secretary Teofisto Guingona, State
directly: "What do you mean? What do you intend to do? And he
Prosecutor Jovencio R. Zuno, Asst. Chief State Prosecutor
Quezon City replied: Go on with the case Buy the Judge."
Leonardo Guiyab, Jr., and Director Jude Romano of the Witness
Protection Program, the instances of substantial amounts
amounting to several millions, to my client, to her relatives,
NOTARY PUBLIC k. That unbelieving, I reacted, saying; "but they have already done
including her maternal grandmother, and to myself; so, Judge Francisco at Binan suddenly changed his attitude
towards the Prosecution. Perhaps, you are referring to the next
SGD. JUANITO L. GARCIA judge when the petition for change of venue is finally granted?"
3. That despite the published declaration by the Department of
Justice of its determination to prosecute those who offered the
ATTY. JUANITO L. GARCIA
bribes, new emissaries of Mayor Alonte persist in making offers, 1. That Atty. Daga did not reply, and he reiterated that his
as follows: principals, referring to them again as "gambling lords," want a
NOTARY PUBLIC desistance, after which he excused himself and left.
a. On Thursday, March 6, 1997, at about 3:15 o'clock in the
UNTIL Dec. afternoon,
31, 1997 Atty. Dionisio S. Daga came to see me at my office at 4. That I execute this Affidavit to attest to the truth of the incident
the People's Bureau, Office of the Mayor, of Squatting case which with Atty. Dionisio S. Daga which occurred in the afternoon of
I filed against his clients; March 6, 1997, at my Office, stressing herein my surprise over his
PTR No. 63-T-033457 daring in making yet another monetary offer to me in exchange
for my client's desistance and my feeling of fear for the first time
b. That after a brief exchange on the status of the case, he
ISSUED AT MLA. ON 1-2-97 since I started "handling" this case against Alonte;
confided to me his real purpose;

TAN—161-570-81 5. That despite what I perceived as veiled threats of Atty. Daga, I

c. That he started off by saying that he was the legal counsel of
will seek justice in behalf of Juvie-Lyn Punongbayan, with the
the gambling lords of Malabon for which he gets a monthly
indispensable initiatives, participation and support of the
Doc. No. 950; retainer of fifteen thousand pesos (P15,000.00), exclusive of
Department of Justice under Secretary Teofisto Guingona.
transportation expenses, etc.
Page No. 170;
FURTHER AFFIANT SAYETH NAUGHT.
d. The he also stated that the network of gambling lords
throughout the country is quite strong and unified;
Series of 1997.
SGD. REMED
BALBIN
e. That I then asked him: "What do you mean — is Alonte into
In her second Affidavit dated March 26, 1997, Atty. Balbin
gambling too? that he is part of the network you speak of?"
declared in no uncertain language that the bribe offer for private
ATTY. REME
complainant to make a desistance was increased from P10,000.00
BALBIN
to P20,000.00, viz: f. That Atty. Daga did not reply but instead said: "they are
prepared to double the offer made to you by Atty. Romero which
was published in the newspapers" at P10 Million; Affiant
REPUBLIC OF THE PHILIPPINES )

REPUBLIC OF THE PHILIPPINES )

117
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

CITY OF MANILA ) S.S. I, Juvie-lyn Yambao — Punongbayan, 17 years of age, a resident of WHEREOF, I affix my signature, this 25th day of June, 1997, in
No. 5 Uranus Street, Congressional Avenue Subdivision, Quezon Quezon City.
City, duly assisted by private legal counsel and my parents, after
SUBSCRIBED AND SWORN TO BEFORE ME this 26th day of March,
having duly sworn in accordance with law, depose and say:
1997. SGD. JUVIE-
PUNONGBA
1. That I am the Complainant in the rape case filed against Mayor
Community Tax Certificate — 5208733
Bayani "Arthur" Alonte of Biñan, Laguna, with the RTC-Branch 25
JUVIE-LYN Y
of Binan, Laguna;
PUNONGBA
Date Issued 2-10-97
2. That the case has been pending for some time, on preliminary
Assisted by:
Quezon City issues, specifically, (a) change of venue, filed with the Supreme
Court; (b) propriety of the appeal to the Court of Appeals, and
after its denial by said court, brought to the Office of the SGD. REMEDIOS C. BALBIN
Notary Public
President, on the veracity of the findings of the Five-Man
Investigating Panel of the State Prosecutor's Office, and the ATTY. REMEDIOS C. BALBIN
SGD. JUANITO L. GARCIA
Secretary of Justice and (c) a hold-departure order filed with the
Biñan Court;
Private Prosecutor
ATTY. JUANITO L. GARCIA
3. That the legal process moves ever so slowly, and meanwhile, I
have already lost two (2) semesters of my college residence. And In the presence of:
NOTARY PUBLIC
when the actual trial is held after all the preliminary issues are
finally resolved, I anticipate a still indefinite suspension of my SGD. PABLO PUNONGBAYAN
UNTIL DEC. schooling
31, 1997 to attend the hearings;

PABLO PUNONGBAYAN
PTR NO. 63-T-033457
4. That during the entire period since I filed the case, my family
has lived a most abnormal life: my father and mother had to give
up their Father
ISSUED AT MLA. ONjobs; my younger brother, who is in fourth grade, had to
1-2-87
stop his schooling, like myself;
SGD. JULIE Y. PUNONGBAYAN
TAN -161-570-81
5. That I do not blame anyone for the long, judicial process; I
simply wish to stop and live elsewhere with my family, where we JULIE Y. PUNONGBAYAN
Doc. No. 948;
can start life anew, and live normally once again;
Mother
Book No. 190;
6. That I pray that I be allowed to withdraw my complaint for rape
and the other charge for child abuse wherein the Five-Man
SUBSCRIBED AND SWORN to before me this 25 the day of June,
Page No. XLIII; investigating Penal of the Office of the State Prosecutor found
1997, in Quezon City.
a prima facie case although the information has not been filed,
Series of 1997. and that I will not at any time revive this, and related cases or file
new cases whether, criminal, civil and/or administrative here or SGD. ILLEGIBLE
anywhere in the Philippines;
After the alleged bribe money was increased from P10M to P20M
Administering Officer
the complexion of the case changed swiftly.
7. That I likewise realize that the execution of this Affidavit will put
to doubt my credibility as a witness-complainant; RTC Branch 94
On June 25, 1997, Atty. Balbin filed a Motion to Resume
Proceedings in Br. 25 of the RTC of Biñan, Laguna. Attached to the
Motion was the Affidavit of Desistance of the private complainant 8. That this is my final decision reached without fear or favor, Quezon City
which states: premised on a corresponding commitment that there will be no
reprisals in whatever form, against members of the police force or
any friends who extended assistance to me in whatever way, in Obviously, the Motion to Resume Proceedings was intended to
my search for justice. get the trial court's approval for the dismissal of the rape case
against the petitioners.

118
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Indeed, three days thereafter or on June 28, 1997, Atty. Ramon C.
Casino moved in behalf of the petitioners to dismiss the petition
for change of venue then pending in this Court citing the affidavit
of desistance of the private complainant. On August 22, 1997,
however, Asst. Chief State Prosecutor Guiyab opposed the
motion. He alleged that he has control of the prosecution of the
rape case and that he was not aware of the desistance of the
private complainant.
The legal maneuvers to dismiss the rape case against the
petitioners on the basis of the alleged affidavit of desistance of
the private complainant did not find the favor of this Court. On
September 2, 1997, this Court unanimously granted the petition
for change of venue, ruling among others, viz:
xxx xxx xxx
These affidavits give specific names, dates and methods being
used to abort, by coercion or corruption, the prosecution of
Criminal Case No. 9619-B. It is thus incorrect for oppositors Alonte
and Concepcion to contend that the fear of the petitioner, her
private counsel and her witnesses are too generalized if not
fabricated. Indeed, the probability that in desisting from pursuing
her complaint for rape, petitioner, a minor, may have succumbed
to some illicit influence and undue pressure. To prevent possible
miscarriage of justice is good excuse to grant the petition to
transfer the venue of Criminal Case No. 9619-B from Biñan,
Laguna to the City of Manila.
IN VIEW WHEREOF, the Petition for Change of Venue from Biñan,
Laguna to the City of Manila is granted. The Executive Judge of
RTC Manila is ordered to raffle Crim. Case No. 9619-B to any of its
branches. The judge to whom Crim. Case No. 9619-B shall be
raffled shall resolve the petitioner's Motion to Resume
Proceedings filed in Br. XXV of the RTC of Biñan, Laguna and
determine the voluntariness and validity of petitioner's desistance
in light of the opposition of the public prosecutor, Asst. Chief
State Prosecutor Leonardo Guiyab. The branch clerk of court of
Br. XXV of the RTC of Biñan, Laguna is ordered to personally
deliver to the Executive Judge of Manila the complete records of
Crim. Case No. 9619-B upon receipt of this Resolution.
On September 17, 1997, Criminal Case No. 9619-B (re-docketed
by the Clerk of Court of Manila as Crim. Case No. 97-159955) was
raffled to Br. 53 of the RTC of Manila, presided by the respondent
judge, the Honorable Maximo A. Savellano.
On October 9, 1997, the respondent judge issued warrants of
arrest against the petitioners after a finding of probable cause.
On October 28, 1997, an Administrative Order of the DOJ was
issued empowering First Assistant City Prosecutor Marilyn R. O.
Campomanes to prosecute the case at bar. Asst. Chief State
Prosecutor Leonardo Guiab, Jr., who opposed the affidavit of
desistance was relieved from the case. The reason given in the
Administrative Order was ". . . in the interest of public service."
Prosecutor Campomanes was authorized "to move for its (case)
dismissal if the evidence on record so warrant . . ."1
The arraignment of the petitioners took place on November 7,
1997. The State was represented by Prosecutor Marilyn
Campomanes. Petitioner Alonte was represented by Atty. Jose
Flaminiano and Atty. Sigfrid A. Fortun. Petitioner Concepcion was
represented by Atty. Ramon C. Casano. Atty. Remedios Balbin who
had previously exposed under oath the threats to the life of the
private complainant and her witnesses and the repeated attempts
to buy complainant's desistance was absent. 2
Petitioners pled not guilty to the charge of rape upon their
arraignment. 3 Pre-trial was then waived by both the prosecution
and the defense. The proceedings continued and Prosecutor
Campomanes presented the private complainant, Ms.
Punongbayan who testified on her affidavit of desistance. She
declared that her desistance was her "personal" decision with the
consent of her parents. 4 She said she was neither paid nor
pressured to desist. On questions by the respondent judge,
however, she affirmed the truth of her affidavit dated October 31,
1996 that she was raped by petitioner Alonte. Prosecutor
Campomanes marked and offered her affidavit of desistance as
Exhibit "A". 5 She called on other witnesses to testify on the
voluntariness of the affidavit of desistance. The parents of the
complainant — Pablo 6 and Julie 7 Punongbayan — declared that
they did not receive any monetary consideration for the
desistance of their minor daughter. Neither were they pressured
to give their consent to the desistance. Fourth Asst. Provincial
Prosecutor Alberto Nofuente averred that the affidavit of
desistance was signed and sworn to before him in the presence of
the complainant's parents and private counsel, Atty. Balbin. He
said he explained the affidavit to them and that the complainant
voluntarily signed the same. 8
After their testimonies, Prosecutor Campomanes made the
manifestation that "with the presentation of our witnesses and
the marking of our documents (sic) we are now closing the case
and that we are praying for the dismissal of the case. 9 The
respondent judge ruled "the case is submitted for
decision." 10 Atty. Flaminiano orally prayed that petitioner Alonte
be granted bail and Prosecutor Campomanes offered no
objection. 11
TROPANG POTCHI
On November 10, 1997, petitioner Alonte filed an Urgent Motion
to Admit to Bai1. 12 In her Comment, Prosecutor Campomanes
agreed and averred, viz.: 13
xxx xxx xxx
1. That she received a copy of the Petition for Bail.
2. That on the hearing of the instant case on November 7, 1997,
the Prosecution presented its witnesses who vehemently signified
their intention not to further prosecute the case in Court and
there being no other witnesses to present, the undersigned is left
with no alternative but to seek the dismissal of the considering
that without the testimony of said witnesses this case has nothing
to stand on in Court.
3. That for the aforestated reason, the People interposes no
objection to the granting of Bail and in fact justice and equity
dictate that it joins the accused in his prayer for the granting of
bail in the amount of P150,000 (ONE HUNDRED FIFTY THOUSAND
PESOS).
4. That for the aforementioned bases, the People hereby
manifests its position that the case be immediately dismissed or
at least the accused be granted bail since the record proves that
there is no more evidence to sustain the charge against him such
that the granting of bail is proper and in order.
5. That as a general rule, a hearing on the petition for bail is
necessary to prove that the guilt is not strong but in this particular
case there is no need for hearing since the prosecution cannot
prove its case against the accused as it has no other evidence or
witnesses to be presented.
On November 17, 1997, petitioner Alonte, thru counsel, filed an
Urgent Plea to Resolve the Motion for Bail. 14 On the same date,
Prosecutor Campomanes manifested that "she deems it proper
and in accord with justice and fair play to join the aforestated
motion." 15
On November 25, 1997, December 1, 1997, December 8, 1997
and December 10, 1997, petitioner Alonte filed a Second, Third,
Fourth, and Fifth Motion early for resolution of his petition for
bail. 16 In all these motions, Atty. Fortun, counsel of petitioner
Alonte, alleged that copy of the motion . . . could not be served in
person upon the private prosecutor" (Atty. Balbin) in light of the
distance between their offices. 17 He relied on section 13, Rule 11
of the 1997 Rules on Civil Procedure. The motions were not
resolved by the respondent judge.
119
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
On December 18, 1997, the respondent judge promulgated his
Decision convicting the petitioners and sentencing them
to reclusion perpetua. On whether of the affidavit of desistance
can be a ground for dismissal of the rape case against the
petitioners, the respondent judge held:
The first issue to be determined and resolved is the "voluntariness
and validity of petitioner's desistance in the light of the opposition
of the public prosecutor Asst. Chief State Prosecutor Leonardo
Guiab." (p. 7, SC Resolution En Banc, dated September 2, 199/.7;
[Rollo, p. 253]) It is appropriate to quote again a portion of the 7-
page Resolution En Banc of the highest tribunal, to wit; "Indeed,
the probability (exists) that in desisting from pursuing her
complaint for rape, petitioner, a minor, may have succumbed to
some illicit influence and undue pressure. To prevent possible
miscarriage of justice is a good excuse to grant the petition for
change of venue . . ." (Rollo, p. 202).
The Court shall narrate the facts leading to the desistance of the
private complainant which are embodied in the two (2) affidavits
of her lawyer, Atty. Remedios C. Balbin, with whom the private
complainant lives at No. 5 Uranus St., Congressional Avenue
Subdivision, Quezon City. One affidavit is dated May 24 1997, (sic)
while March 26, 1997. The said affidavits are attached as exhibits
to the aforementioned Manifestation and Motion for the
Resolution of Petition for Change of Venue filed by the private
complainant Juvie-Lyn Y. Punongbayan. Exh. "C", dated May 24,
1997, (Rollo, pp. 216-219) is hereby quoted as follows:
xxx xxx xxx
It clearly appears in the abovequoted affidavit that repeated bribe
offers from a lawyer representing the accused Mayor Bayani
Arthur Alonte in the total amount of Ten Million Pesos
(P10,000,000.00) were made to Atty. Balbin, allocated as follows:
(1) Five Million Pesos (5,000,000.00) for the private complainant
Juvie-lyn Y. Punongbayan; (2) Three Million Pesos (P3,000,000.00)
for her (Atty. Balbin); and (3) Two Million Pesos (P2,000,000.00)
for the mediator.
In the subsequent affidavit, dated March 26, 1997, executed by
Atty. Remedios C. Balbin (Exh. F, Rollo, pp. 224-225) she narrated
in detail the continuing veiled threats and the very tempting and
escalating offer to increase the amount of the bribe money
offered to her and the private complainant after her first affidavit,
by doubling the first offer of Ten Million Pesos (P10,000,000.00)
to Twenty Million Pesos (P20,000,000.00), in exchange for her
client's desistance, but also accompanied with veiled threats, if
refused. Said affidavit is quoted, as follows:
xxx xxx xxx
The Court underscores paragraphs (b), (c), (d), (e), (f), (g), (h), (i),
(j), (k), and (l), particularly paragraphs (i), (j) and specially
paragraph (k) of the abovequoted affidavit of Atty. Balbin which
insinuates that the presiding Judge of the RTC Biñan, Laguna, had
already been bought, and that accused Alonte thru his numerous
emissaries, will also buy or bribe the "the next judge when the
petition for change of venue is finally granted." In view of this
insinuation, the undersigned presiding Judge is very careful in
deciding this case, lest he be placed under suspicion that he is also
receiving blood money that continues to flow. The Court wants to
have internal peace — the peace which money cannot buy.
Money is the root of all evil. The Holy Holy Scriptures also remind
judges and jurists: "You shall not act dishonestly in rendering
judgment. Show neither partiality to the weak nor deterrence to
the mighty, but judge your fellow men justly," (Leviticus 19:15).
The Scriptures further say: "What does it profit a man if he gains
the whole world but suffers the loss of his soul?" (Mt. 16:26) and
"No one can serve two (2) masters. . . You cannot serve God and
mammon." (Mt. 6:24, Luke 16:13). It is not out of place to quote
the Holy Scriptures because the Honorable Supreme Court has
been doing so in its quest for truth and justice. Thus, People
vs. Garcia, 209 SCRA 164, 174, the highest tribunal, in ruling that
the flight of an accused is evidence of guilt on his part, quoted the
old Testament, as follows:
It was written in the literature of Old
Testament several centuries ago that:
The wicked man fleeth though no man
pursueth, but the righteous are as bold as a
lion.
(Proverbs, 28:1)
Subsequently, on June 25, 1997, the private complainant and her
lawyer suddenly somersaulted or changed their common
positions or attitudes in the prosecution of this case. Evidently,
veiled threats and money had replaced the "spiritual
consideration" which earlier, to them were "more important than
the material" to quote Atty. Balbin in her first affidavit (Rollo, p.
217), and her reply to Atty. Dionisio S. Daga that "all the money in
the world will not make me change my position against my client's
executing a desistance, and that only Alonte's voluntary
surrender, plea of guilty to rape, conviction and the imposition of
the corresponding penalty will satisfy the ends of justice.
On June 26, 1997, the private complainant thru her counsel, Atty.
Remedios C. Balbin, filed a Motion to Resume Proceedings, dated
June 25, 1997, (Rollo, pp. 238-244) praying therein that the RTC,
Biñan, Laguna, where this case was still pending, vacate its Order
to Suspend Hearings, to enable it to act on all incidents including
private Complainant's Affidavit of Desistance attached thereto.
TROPANG POTCHI
(Rollo, pp. 240-241) which affidavit of desistance is quoted
hereunder as follows:
xxx xxx xxx
This Court, as the trier of facts, is tasked by the highest tribunal to
find out if the private complainant, a minor "may have succumbed
to some illicit influence and undue pressure, in order to prevent a
possible miscarriage of justice." Evidently, the veiled threats and
acceptance of the bribe money in allocated amounts which was
subsequently raised to the irresistible amount of at least
P20,000,000.00, compelled, impelled and/or tempted the private
complainant her father Pablo Punongbayan and her mother Julie
Y. Punongbayan, and her lawyer and private prosecutor Atty.
Remedios C. Balbin, who did not appear in Court on November 7,
1997, despite notice, to execute the said "Affidavit of Desistance"
which was the ultimate goal of the accused. It is very obvious that
the private complainant a minor, "succumbed to some illicit
influence and undue pressure," to borrow the language of the
Honorable Supreme Court En Banc. It would be the height of
extreme naivete or gullibility for any normal individual to
conclude otherwise. The Court does not believe that the private
complainant, her lawyer, and her parents charged but in exchange
for a plea of guilty the charge is reduced to homicide and the
accused is allowed to claim a number of mitigating circumstances.
It is not uncommon for estafa, libel, physical injuries and even
homicide cases to be dismissed because the complainant has lost
interest or alleged that the complaint was filed as a result of a
misunderstanding. A number of examples can be given and they
can fill a book."
Again, in People vs. Evangelista, L-45089, April 27, 1982, 113 SCRA
713, 720, the Supreme Court further declared:
It may be noted that the crimes in question (forcible abduction
with rape) are among those enumerated in Article 344 of the
Revised Penal Code, which crimes cannot be prosecuted de
officio. In other words, the crimes of abduction and rape are in the
nature of private offense, inasmuch as the law has reposed "the
right to institute such proceedings exclusively and successively in
the offended person, her parents, grandparents or guardian" . . .
Accordingly, if after filing the case at face at bar decided that she
was unable to face the scandal of public trial, or, if for some
private reason she preferred to suffer the outraged in silence,
then, corollary to her right institute the proceedings, she should
have been allowed to withdraw her complaint and desist from
prosecuting the case (Emphasis supplied).
Petitioner Concepcion did not submit any motion for
reconsideration. Without waiting for the resolution of his motion
for reconsideration, petitioner Alonte repaired to this Court. So
did petitioner Concepcion.
120
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Without doubt, the petitions at bar raise two (2) fulcrum issues:
(1) the correctness of the ruling of the respondent judge that the
desistance of the complainant is not a ground to dismiss the rape
charge against the petitioners, and (2) the invalidity of petitioners'
conviction on the ground of denial of due process.
I agree with the learned disquisition of Mr. Justice Vitug that we
should set aside the conviction of the petitioners for patent
violation of their right to due process of law. I write this Separate
Opinion to highlight the erroneousness of the shocking stance of
the State Prosecutor that the rape charge should be dismissed in
view of the desistance of the private complainant. But our ruling
giving no effect on the affidavit of desistance should not based on
the reason that it was procured by threat or intimidation or any
payment of money as the respondent judge opined in his
Decision. The respondent judge arrived at this conclusion on the
basis of the affidavits of Atty. Balbin, the counsel of the private
complainant. This is erroneous for Atty. Balbin was never called to
the witness stand to testify on the truth of her affidavits. Her
affidavits therefore are hearsay evidence and should not have
been relied upon by the respondent judge. The affidavit of
desistance cannot abort the rape charge against the petitioners
on the simple ground that it did not state that the private
complainant-affiant was not raped by petitioner Alonte. In truth,
the private complainant affirmed her earlier Reply-Affidavit where
she narrated in detail how petitioner Alonte raped her. Moreover,
the rape charge has been filed in Court and it is not anymore the
absolute privilege of the camplainant to desist from continuing
with the case.
This separate opinion unequivocably addresses the issue of
whether the desistance of the victim can stop the further
prosecution of the petitioners.
I Private crimes cannot be prosecuted except upon complaint filed
In Philippine jurisprudence, desistance has been equated with
recantation or retraction.
To "recant" means to "withdraw or repudiate formally and
publicly;" 18 "to renounce or withdraw prior statement." 19 To
"retract" means to "take back;" "to retract an offer is to withdraw
it before acceptance." 20 A recantation usually applies to a
complainant or witness, either for the prosecution or the defense,
who has previously given an extra-judicial statement 21 or
testimony in court. 22 Repudiation may be made in writing, i.e., by
sworn statement, 23 or by testifying on the witness stand. 24
Mere retraction by a witness or by complainant of his or her
testimony does not necessarily vitiate the original testimony or
statement, if credible. 25 The general rule is that courts look with
disfavor upon retractions of testimonies previously given in
court. 26 This rule applies to crimes, 27 offenses 28 as well as to
administrative offenses. 29 The reason is because affidavits of
retraction can easily be secured from poor and ignorant
witnesses, usually through intimidation or for monetary
consideration. 30 Moreover, there is always the probability that
they will later be repudiated 31 and there would never be an end
to criminal litigation. 32 It would also be a dangerous rule for
courts to reject testimonies solemnly taken before courts of
justice simply because the witnesses who had given them later on
changed their minds for one reason or another. This would make
solemn trials a mockery and place the investigation of the truth at
the mercy of unscrupulous witnesses. 33
The general rule notwithstanding, the affidavit should not be
peremptorily dismissed as a useless scrap of paper. There are
instances when a recantation may create serious doubts as to the
guilt of the accused. 34 A retracted statement or testimony must
be subject to scrupulous examination. The previous statement or
testimony and the subsequent one must be carefully compared
and the circumstances under which each was given and the
reasons and motives for the change carefully scrutinized. The
veracity of each statement or testimony must be tested by the
credibility of the witness which is left for the judge to decide. 35 In
short, only where there exists special circumstances in the case
which when coupled with the retraction raise doubts as to the
truth of the testimony or statement given, can a retraction be
considered and upheld. 36
A survey of our jurisprudence reveals that the same rule has been
applied to affidavits of desistance. 37 An affidavit of desistance is
understood to be a sworn statement executed by a complainant
in a criminal or administrative case that he or she is discontinuing
the action filed upon his or her complaint for whatever reason he
or she may cite. The court attaches no persuasive value to a
desistance especially when executed as an
afterthought. 38 However, a in retractions, an affidavit of
desistance calls for a reexamination of the records of the case. 39
In private crimes, an affidavit of desistance filed by a private
complainant is also frowned upon by the courts. Although such
affidavit may deserve a second look at the case, there is hardly an
instance when this Court upheld it in private crimes and dismissed
the case on the sole basis thereof. Indeed, a case is not dismissed
upon mere affidavit of desistance of the complainant, particularly
where there exist special circumstances that raise doubts as to
the reliability of the affidavit. 40
TROPANG POTCHI
Usually in private crimes, an affidavit of desistance is executed by
the private complainant after pardoning and forgiving the
offender. In this instance, the court treats the affidavit as an
express pardon. 41 It does not ipso facto dismiss the case but
determines the timeliness and validity thereof.
Private crimes are crimes against chastity such as adultery and
concubinage, seduction, abduction, rape and acts of
lasciviousness. Their institution, prosecution and extinction are
governed by Article 344 of the Revised Penal Code, viz:
Art. 344. Prosecution of the crimes of adultery, concubinage,
seduction, abduction, rape and acts of lasciviousness. — The
crimes of adultery and concubinage shall not be prosecuted
except upon a complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without
including both the guilty parties, if they are both alive, nor in any
case, if he shall have consented or pardoned the offenders.
The offenses of seduction, abduction, rape, acts of lasciviousness,
shall not be prosecuted except upon a complaint filed by the
offended party or her parents, grand parents, or guardian, nor in
any case, the offender has been expressly pardoned by the above-
named persons, as the case may be.
In cases of seduction, abduction, acts of lasciviousness and rape,
the marriage of the offender with the offended party shall
extinguish the criminal action or remit the penalty already
imposed upon him. The provisions of this paragraph shall also be
applicable to the co-principals, accomplices and accessories after
the fact of the above-mentioned crimes.
by the offended party. In adultery and concubinage, the offended
party must implead both the guilty parties and must not have
consented or pardoned the offenders. In seduction, abduction,
rape and acts of lasciviousness, the complaint must be filed by the
offended party or her parents, grandparents or guardian. The
complainant must not have expressly pardoned the offender.
Article 344 also provides for the extinction of criminal liability in
private crimes. It mentions two modes: pardon and marriage,
which when validly and timely made, result in the total extinction
of criminal liability of the offender. 42 The pardon in private crimes
must be made before the institution of the criminal action. 43 In
adultery and concubinage, the pardon may be express or implied
while in seduction, abduction, rape and acts of lasciviousness, the
pardon must be express. In all cases, the pardon must come prior
to the institution of the criminal action. After the case has been
filed in court, any pardon made by the private complainant,
121
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
whether by sworn statement or on the witness stand, cannot
extinguish criminal liability. The only act that extinguishes the
penal action and the penalty that may have been imposed is the
marriage between the offender and the offended party.  44
As this Court declared in the case of Donio-Teves v. Vamenta, Jr.: 45
The term "private crimes" in reference to felonies which cannot
be prosecuted except upon complaint filed by the aggrieved
party, is misleading. Far from what it implies, it is not only the
aggrieved party who is offended in such crimes but also the State.
Every violation of penal laws results in the disturbance of public
order and safety which the State is committed to uphold and
protect. If the law imposes the condition that private crimes like
adultery shall not be prosecuted except upon complaint filed by
the offended party, it is, as herein pointed earlier "out of
consideration for the aggrieved party who might prefer to suffer
the outrage in silence rather than go through the scandal of a
public trial." Once a complaint is filed, the will of the offended
party is ascertained and the action proceeds just as in any other
crime. This is shown by the fact that after filing a complaint, any
pardon given by the complainant to the offender would be
unavailing. It is true, the institution of the action in so called the
private crimes is at the option of the action of the aggrieved party.
But it is equally true that once the choice is made manifest, the
law will be applied in full force beyond the control of, and inspite
of the complainant, his death notwithstanding.
The filing of a complaint in private crimes is merely a condition
precedent to the exercise by the proper authorities of the power
to prosecute the guilty parties. 46 It is the complaint that starts the
prosecutory proceeding without which the fiscal and the court
cannot exercise jurisdiction over the case. 47 Once the complaint is
filed, the action proceeds just as in any other crime.
We follow the postulate that a criminal offense is an outrage to
the sovereign state 48 and the right of prosecution for a crime is
one of the attributes of the sovereign power.49 Thus, criminal
actions are usually commenced by the State, through the People
of the Philippines, and the offended party is merely a complaining
witness. 50 In private crimes, however, or those which cannot be
prosecuted de oficio, the offended party assumes a more
predominant role since the right to commence the action or
refrain therefrom, is a matter exclusively within his power and
option. 51 The sovereign state deems it the wiser policy, in private
crimes, to let the aggrieved party and her family decide whether
to expose to public view the vices, faults and disgraceful acts
occurring in the family.  52 But once the offended party files the
complaint, her will is ascertained and the action proceeds just as
in any other crime. The decision of the complainant to undergo
the scandal of a public trial necessarily witness connotes the
willingness to face the scandal. 53The private complainant is
deemed to have shed off her privacy and the crime ceases to be
"private" and becomes "public." The State, through the fiscal,
takes over the prosecution of the case and the victim's change of
heart and mind will not affect the State's right to vindicate the
outrage against the violation of its law. 54
This is the reason why pardon in crimes of chastity must come
before the institution of the criminal action. Pardon by the
offended party extinguishes criminal liability when made while the
crime is still "private" and within the control of the offended
party. But once the case is filed in court, the
pardon cannot ipso facto operate to dismiss the case. After the
institution of the criminal action, any pardon given by the
complainant to the offender would be unavailing, 55 except of
course when the offender validly marries the offended
party. 56 The offended party's pardon of the offender in a
seduction case after the criminal action had been instituted
constitutes no bar to said action. 57 A pardon given in a rape case
after the filing of the action in court "comes too late to hide the
shameful occurrence from public notice." 58
Even the death of the offended party cannot extinguish the case
once it is filed in court. 59 If the offended party dies immediately
after filing the complaint but before the institution of the criminal
action, his death is not a ground to dismiss the case. 60 Clearly, the
will and participation of the offended party is necessary only to
determine whether to file the complaint or not. Thereafter, the
will of the State prevails.
Article 344 does not include desistance of the offended party from
prosecuting the case as a ground for extinction of criminal liability
whether  witness/private complainant Juvielyn
total 61 or partial. 62 Hence, only when the desistance is grounded
on forgiveness and pardon and is made before the institution of
the criminal action, can it extinguish criminal liability.
Desistance, per se, is not equivalent to pardon.
In the case at bar, the "Affidavit of Desistance" of Juvielyn is not
an express pardon of the accused and the crime committed.
Private complainant desisted from prosecuting the case against
the petitioners because she wished "to start life anew and live
normally again." She reiterated this reason on the witness stand.
She complained that members of the media were bothering and
harassing her and that she wanted to go back to her normal life.
She never said that she forgave the petitioners. She did not
absolve them from their culpability. She did not give any
exculpatory fact that would raise doubts about her rape. She did
not say that she consented to petitioner Alonte's acts. Moreover,
the rape case is already in court and it is no longer her right to
decide whether or not the charge should be continued. As we
held in Crespo v. Mogul: 63
TROPANG POTCHI
xxx xxx xxx
The rule in this jurisdiction is that once a complaint or information
is filed in court any disposition of the case as to its dismissal or
conviction or acquittal of the accused rests in the sound discretion
of the court. Although the fiscal retains the direction and control
of the prosecution of criminal cases even while the case is already
in court he cannot impose his opinion on the trial court. The court
is the best and sole judge on what to do with the case before it.
The determination of the case is within its exclusive jurisdiction
and competence. A motion to dismiss the case filed by the fiscal
should be addressed to the court who has the option to grant or
deny the same. It does not matter if this is done before or after
the arraignment of the accused or that the motion was filed after
a reinvestigation or upon instructions of the Secretary of Justice
who reviewed the records of the investigation.
II
The next issue is the validity of the conviction of petitioners.
Petitioners contend that they were convicted without undergoing
any trial. Respondent judge insists otherwise. He claims that
petitioners submitted the case on the merits and relied principally
on the Affidavit of Desistance. He recounts the events that took
place before the presentation of private complainant as revealed
by the transcripts of November 7, 1997, viz:
Prosecutor Campomanes
Your Honor, the complaining
Punongbayan is present here in Court, and
a while ago, I was given a copy of her
Affidavit of Desistance so I would like to
present her in order to attest to the veracity
of her Affidavit of Desistance, your Honor,
and for the Court to her testimony.
Court
We will have a separate trial, this involved a
heinous offense and that there is not even
any plea-bargaining in this case.
Prosecutor Campomanes
Yes, your Honor, I understand that.
Court
122
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
So you have to mark now your
documentary evidence in preparation for
trial.
Prosecutor Campomanes
Yes, your Honor.
Court
There are many documentary evidence
mentioned by the Supreme Court in its
seven (7) page . . . (may I see the record)
seven(7) page resolution, dated September
2, 1997, and that this case was assigned to
this Court as the trial Judge. This Court has
already arraigned the accused and he
pleaded not guilty, and so the next step is
pre-trial. The Order of the Supreme Court is
to direct this Court not only to determine
the voluntariness but also the validity of the
Affidavit of Desistance mentioned by the
Court which was also brought to the
attention of the Supreme Court.
Prosecutor Campomanes
And to the Department of Justice likewise
your Honor.
Court
And that's why the Supreme Court instead
of resolving it sent the records to this Court
to determine the voluntariness and the
validity of the Desistance, but they must be
determined after trial on the merits.
Prosecutor Campomanes
Your Honor please, representing the
people. Its events now will prove that there
is no more need for the prosecution to go
on trial of this case, considering that the
private complainant herself had already
furnished the Department of Justice a copy
of her Affidavit of Desistance.
Court
What does it say there?
Prosecutor Campomanes
That she is no longer interested in further
prosecuting this case, and that she is now
desisting in going to full blown trial, and
considering your Honor further, that this is
a private offense, then, the Department of
Justice feels that it can not be more popish
than the Pope.
Court
That is the stand of the Department of
Justice. But the Supreme Court belongs to a
different Department, I am governed by the
Supreme Court, because I am a Judge, I am
not from the Department of Justice.
Prosecutor Campomanes
We are all aware your Honor, that we will
just be prolonging the agony, in fairness to
everybody, considering that we are
representing the people, but we are not
representing only . . . the Department of
Justice is not only representing the
complainant in this case but we are also for
justice to be rendered to the respondent as
well.
Court
I am rendering fair justice to everyone. That
is the sense of this Court. That is the
perception of this Court with respect to the
Supreme Court resolution, in the first place,
that Affidavit does not negate the
commission of the crime. You want us to
dismiss this case when the Affidavit does
not negate the commission of the crime?
Prosecutor Campomanes
That's why we will be presenting her in
Open Court, your Honor.
Court
TROPANG POTCHI
Just to affirm that?
Prosecutor Campomanes
No to prove . . .
Court
What happened . . . how about the
Prosecution Department, they have control
of the prosecution, and the offended party
herself, has not negated the commission of
the crime, is there anything there to show
that she did not . . . that the accused . . . did
not commit the crime charged?
Prosecutor Campomanes
That's why we will be presenting her in
Open Court, whatever is not here will be
clarified.
Court
So, we will go to a trial on the merits you
present that affidavit, that's a part of your
evidence.
Prosecutor Campomanes
The people is ready to present that . . . the
complaining witness.
Court
We will have a trial on the merits.
Prosecutor Campomanes
Your Honor please, being a woman, I have
extensively discussed this matter with the
complaining witness and she intimated to
this representation that she can not bear
another day of coming here, with all these
people staring at her with everybody
looking at her as if she is something . . . .
Court
123
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
On December 13, 1996, petitioner
Punongbayan through private counsel, Atty.
Remedios C. Balbin and the Assistant State
Prosecutor Guiab, Jr. who is not here both
were relieved and changed with a new lady
prosecutor, prayed that the case be tried by
the Regional Trial Court of Manila, they
cited the following grounds: "THE GREAT
DANGER TO THE LIVES OF BOTH PRIVATE
COMPLAINANT AND THE IMMEDIATE
MEMBERS OF HER FAMILY AND THEIR
WITNESSES AS THEY OPENLY IDENTIFIED
THE PRINCIPAL ACCUSED MAYOR ALONTE
WHO IS ACKNOWLEDGED AS A POWERFUL
POLITICAL FIGURE AND ALMOST AN
INSTITUTION IN BIÑAN LAGUNA AND [THE]
GREAT DANGERS TO THE LIVES OF
WITNESSES WHO OTHERWISE WISH TO
COME OUT IN THE OPEN AND TESTIFY ON
THE MORAL AND CRIMINAL ACTIVITIES OF
BOTH ACCUSED PERPETRATED UPON VERY
YOUNG GIRLS STUDENTS OF BIÑAN
LAGUNA THAT WILL NOT DO SO IN THE
TERMS OF THE ACCUSED MAYOR" that is
why it was the prayer of the offended party
and the Supreme Court granted the Motion
for Change of Venue, and we are now on a
new venue, where the danger to the lives of
the witness is no longer present, on January
7, 1997, Alonte filed an Opposition thereto,
and on April 23, 1997, the petitioner, the
offended party through the Honorable
Secretary of Justice Teofisto Guingona and
Chief State Prosecutor Jovencito Zuno filed
a Manifestation and Motion for Resolution
of the Petition For Change of Venue.
Attached to the motion of the Honorable
Secretary of Justice Guingona and Chief
State Prosecutor Jovencito Zuno were the
affidavits of the petitioner, her lawyer, Atty.
Remedios Balbin, Dolores Yambao,
Bienvenido Salandanan and Evelyn Celso
with their contention that the prosecution
witnesses and the private counsel of
petitioner are exposed to kidnapping,
harassment, grave threats and tempting
offers of bribe money, that was the stand of
your department . . . And then later on June
28, 1997 . . . we have to review this case
because this involves public interest . . . on
June 23, 1997, Atty. Casano in behalf of the
oppositors, two (2) oppositors, filed a
motion to dismiss the petition for change of
venue in the Supreme Court on the ground
that it has become moot, he alleges that
the petitioner despite the motion to resume
the proceedings in criminal case no. 96-19-B
in said motion, the petitioner informed the
Court that she is desisting . . . informed the
Supreme Court that she is desisting from
proceeding with the case, it is the same
affidavit she prayed that the trial Court, on
her affidavit of desistance . . . Atty. Casano
also submitted to this Court, to the
Supreme Court the manifestation of the
petitioner joining the oppositors' prayer to
dismiss her petition to a change of venue,
the manifestation was also signed by Atty.
Remedios Balbin as private prosecutor, the
Supreme Court required Assistant Chief
State Prosecutor Leonardo Guiab to
comment on the motion to dismiss filed by
Atty. Casano which involve the same
affidavit that you have just read. On August
22, 1997, assistant Chief State Prosecutor
Guiab filed his comment, he alleged that he
is not aware of the desistance of the
petitioner in criminal case no. 96-19-B, and
in said desistance there is two (2) legal
effect, [that] the public prosecutor has the
control and direction of the prosecution in
criminal action, he prayed for the denial of
the Motion to Dismiss and reiterated his
petition for change of venue, the Supreme
Court granted the change of venue and in
granting the change of venue the highest
tribunal which we are all subordinates, says:
for the record, in their manifestation and
motion for the resolution of petition to a
change of venue the Secretary of Justice
and Chief State Prosecutor submitted
various affidavits in support of their
allegations that prosecution witnesses and
private legal counsel are exposed to
KIDNAPPING, HARASSMENT, GRAVE
THREATS, AND TEMPTING OFFERS OF BRIBE
MONEY all intended to extract an affidavit
of desistance from the complainant, this is
now the affidavit of desistance in her
affidavit dated December 16, 1996, the
petitioner the offended party, the herein
offended party Juvielyn Punongbayan
alleged etc . . . etc . . . in support of her
petition and then she alleged that during
the last week of Feb. 1997, she was visited
by one Lourdes Salaysay, she stated that
Mrs. Salaysay told her that Mrs. Alonte,
wife of Mayor Alonte requested her to
TROPANG POTCHI
settle Alonte's case, she was informed that
Mrs. Alonte was offering P10,000,000.00,
will send her to school and give her house
and send her parents abroad, Atty.
Remedios C. Balbin is not here now, I am
just quoting the Supreme Court counsel,
private counsel of petitioner also executed
an affidavit dated February 1997, quote: the
Supreme Court quote to them: to put on
record the attempting, influence, directly, in
exchange of valuable consideration, that
the Rape charge against Mayor Bayani
Arthur Alone, she alleged that in two (2)
occasions Atty. Romero conveyed to me the
message of Mayor Alonte, namely: to drop
the rape case against him and that he
would give a consideration of
P10,000,000.00 to be apportioned as
follows: P5,000.00, for the private
complainant, your client and the prosecutor
P3,000,000.00 for me, as private
prosecutor, that is what Atty. Balbin said,
P4,000,000.00 for her, the mediator, so
there seems to be a liberal flow of blood
money, that is why the Supreme Court
ordered the Court to determine the validity,
and there is another, dated March 19, 1997.
I have to remind everybody about what
happened, this thing did not come from me,
I am not fabricating anything this comes
from the highest tribunal jurat, to whom I
am responsible another affidavit of Atty.
Balbin, she narrated the continuing
attempts to bribe her and threatened her,
so there were continuing events, they
alleged, the People's Bureau, Office of the
Mayor of Quezon City, extensively discuss
the squatting case with against his client,
that after a brief exchange on the status of
the case, they confided to me his real
purpose, that it started of by saying he was
the legal counsel of the gambling lords of
Malabon for which he get a monthly
retainer of P15,000.00 exclusive of
transportation expenses, but he also stated
that he knows all the network of the
gambling lord throughout the country,
which is quite strong and unified, that I then
ask him "what do you mean?" "Is Alonte
into gambling too, that he is part of the
network you speak of?", that Atty. Daga did
not reply, but instead said, they are
prepared to double the offer made to by
Atty. Romero which was published in the
124
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
newspaper at P10,000,000.00, so, its
double, double your money, so its
P20,000,000.00, that I told him, its Atty.
Balbin, that all the money in the world, all
the money in the world will not make me
change my position against my client
executing a desistance and that Alonte's
voluntary surrender plea of guilty to rape,
conviction, and the imposition of the
corresponding penalty will satisfy the ends
of justice, but I told him, that my client's
case is not isolated, there being five (5)
other miners similarly place and Alonte's
will be stopped from doing more harm that
Atty. Daga, then told me in Filipino if you do
not accede to a desistance, then they will
be force to but because he did not
[complete] the sentence I asked him
directly, what do you mean, what do you
intend to do, and he replied, go on with the
case, [buy] the judge, [buy] the judge, that I
am believing, and I reacted saying, but they
have already done so, Judge Francisco
Binan, Judge Francisco Binan suddenly
change his attitude towards the
prosecution, perhaps you are referring to
the next judge when the petition for change
of venue is finally granted that Atty. Daga
did not reply, and he reiterated that his
principal referring to them again as
gambling lords, wanted desistance, after
which he excused himself and left, that I
execute this affidavit, as Atty. Balbin attests
to the truth of the incident with Atty.
Dionisio Daga which occurred in the
afternoon of March 6, 1997 at my office,
stating . . . (JUDGE READING THE RECORDS
OF THE CASE)
Court
Then, the Supreme Court said, these
affidavits, the one attached gave specific
names, dates and methods . . . a coercion of
corruption, the prosecution of Criminal Case
No. 96-19-B (JUDGE CONTINUED READING
THE RECORDS OF THE CASE) that is desisting
for pursuing her complaint for Rape
petitioner a minor, they have . . . illicit,
influence and due pressure to prevent . . .
Criminal Case No. 96-19-B to any of its
Branch, just to call the Criminal Case No. 96-
19-B shall be raffled, shall result the
petitioner's motion, to resume proceedings
filed in Branch 26 in the RTC of Laguna, to
determine the voluntariness and validity of
the petitioner's desistance in the light of the
position of the public prosecutor, Assistant
Chief Prosecutor Leonardo Guiab . . . I don't
know what will be the outcome . . . you may
contend that because of that affidavit of the
desistance there is reasonable doubt . . .
etc . . . but still, that will be placing the cart
before the horse . . . you have to go a
regular trial on the merits . . . because this is
a heinous offense which cannot . . . and
during the pre-trial cannot be subject to a
plea-bargaining, and with respect to its new
law which took effect in 1993, that is a new
one, it was placed to the category of a
heinous offense . . .
Prosecutor Campomanes
So we go on trial your Honor, and we will
present the complaining witness, and let
the Court decide on the basis of the
complainants testimony . . . private
complainant's testimony, before this
Honorable Court . . .
xxx xxx xxx
Prosecutor Campomanes
That's why we are presenting the private
complainant, the principal witness, the
mother who is also a signatory to this
affidavit of desistance, everybody who have
been a part and participant in the making
and preparation of this affidavit of
desistance, they have already signed these
affidavit of desistance.
Court
And we also have the affidavits mentioned
by the Supreme Court, because I was . . . all
of those documents in the determination of
whether that affidavit is valid.
Prosecutor Campomanes
TROPANG POTCHI
Yes, your Honor.
Court
We . . . the Court cannot close his eyes to
the other affidavits . . . because . . . that's
why precisely the Supreme Court ordered
me to hear this case.
Prosecutor Campomanes
We understand that your Honor.
Court
There are may conflicting matters to be
solve . . . conflicting matters to be tackled in
this case.
Prosecutor Campomanes
May we present the private complainant,
your Honor . . . . 64
The records show that the hearing of November 7, 1997 was set
for arraignment of the petitioners. 65 After the counsels made
their respective appearances, Prosecutor Campomanes presented
her authority to appear as prosecutor in lieu of Asst. Chief State
Prosecutor Guiyab, Jr. Both petitioners pleaded not guilty to the
charge. Respondent judge then set the case for pretrial which the
parties, however, waived. The proceedings continued and
Prosecutor Campomanes manifested there was no need for the
prosecution to go to trial in view of the Affidavit of Desistance of
the private complainant. Respondent judge, however, observed
that private complainant did not negate the commission of the
crime in her Affidavit of Desistance. Respondent judge expressed
his misgivings on the validity of the Affidavit of Desistance
because of the September 2, 1997 Resolution of this Court citing
affidavits where allegations of bribery were made to extract said
affidavit from complainant. Prosecutor Campomanes then offered
to present the private complainant to attest to the voluntariness
and veracity of her Affidavit of Desistance. Respondent judge
averred whether the court should proceed to a trial on the merits.
Prosecutor Campomanes declared that they could go on trial and
let the court decide the merits of the case on the basis of the
testimony of private complainant and the other witnesses. It was
then that private complainant was presented as a witness.
From the garbled transcripts of the hearing on November 7, 1997,
it is not clear what both respondent judge and the public
125
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
prosecutor intended the proceedings to be. Respondent judge
repeatedly declared that the proceedings before him was to be a
trial on the merits. The public prosecutor agreed to go to trial, but
at the same time moved to present private complainant and her
witnesses to testify on the voluntariness of her Affidavit of
Desistance. Respondent judge and the public prosecutor were,
obviously, not tuned in to each other.
I agree with the majority that the November 7, 1997 proceedings
could not have been a trial on the merits. First of all, the
proceedings did not conform with the procedure for trial as
provided in the 1985 Rules on Criminal Procedure. Section 3 of
Rule 119 provides:
Sec. 3. Order of Trial. — The trial shall proceed in the following
order:
(a) The prosecution shall present evidence to prove the charge
and, in the proper case, the civil liability.
(b) The accused may present evidence to prove his defense, and
damages, if any, arising from the issuance of any provisional
remedy in the case.
(c) The parties may then respectively present rebutting evidence
only, unless the court, in furtherance of justice, permits them
present additional evidence bearing upon the main issue.
(d) Upon admission of the evidence, the case shall be deemed
submitted for decision unless the court directs the parties to
argue orally or to submit memoranda.
(e) However, when the accused admits the act charged or
omission charged in the complaint or information but interposes
lawful defense, the order of trial may be modified accordingly.
In the case at bar, petitioners were never instructed to present
evidence to prove their defenses. The parties were never given
the opportunity to present their respective evidence rebutting the
testimony of private complainant. There was no admission by
petitioners of the charge in the information as to justify a change
in the order of trial. 66
Our criminal rules of procedure strictly provide the step by step
procedure to be followed by courts in cases punishable by
death. 67 This rule also applies to all other criminal cases,
particularly where the imposable penalty is reclusion perpetua.
The reason for this is to assure that the State makes no mistake in
taking life and liberty except that of the guilty. 68 Thus:
Judges should be reminded that each step in the trial process
serves a specific purpose. In the trial of criminal cases, the
constitutional presumption of innocence in favor of the accused
requires that an accused be given sufficient opportunity to
present his defense. So with the prosecution as to its evidence.
Hence, any deviation from the regular course of trial should
always take into consideration the rights of all the parties to the
case, whether the prosecution or defense. 69
Second, the admission of private complainant's affidavit of
October 21, 1996 was made solely in response to respondent
judge's own questioning. 70 It was this affidavit which respondent
judge used to convict the petitioners. This affidavit, however, was
not marked nor was it formally offered before the court. The
Revised rules on Evidence clearly and expressly provide that "[t]he
court shall consider no evidence which has not been formally
offered." 71 Evidence not formally offered in court will not be
taken into consideration by the court in disposing of the issues of
the case. Any evidence which a party desires to submit for the
consideration of the court must formally be offered by
him, 72 otherwise it is excluded and rejected. 73
Third, where there is a doubt as to the nature of the criminal
proceedings before the court, this doubt must be resolved in
favor of the accused who must be given the widest latitude of
action to prove his innocence. 74 It is in petitioners' favor that the
proceedings of November 7, 1997 be treated as a hearing on the
motion to dismiss, not a trial on the merits. To rule otherwise will
effectively deny petitioners due process and all the other rights of
an accused under the Bill of Rights and our Rules in Criminal
Procedure.
Indeed, following respondent judge's finding and assuming that
the November 7, 1997 hearing was already a trial on the merits,
petitioners were never afforded their right to confront and cross-
examine the witness. The court did not, at the very least, inquire
as to whether the petitioners wanted to cross-examine private
complainant with respect to her affidavit of October 21, 1996. No
opportunity to cross-examine was afforded petitioners and their
counsels such that they cannot be deemed to have waived said
right by inaction.
G.R. No. 104961 October 7, 1994
CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner, 
vs.
COMMISSION ON ELECTIONS and DEPARTMENT OF JUSTICE
SPECIAL TASK FORCE, respondents.
TROPANG POTCHI
Ronolfo S. Pasamba for petitioner.
BELLOSILLO, JR., J.:
PETITIONER assails in this petition (for declaratory
relief, certiorari and prohibition) the following resolutions of the
Commission on Elections: Resolution No. 2327 dated 26
December 1991 for being unconstitutional, and Resolution No. 92-
0829 dated 6 April 1992 and Resolution No. 92-0999 dated 23
April 1992, for want of legal and factual bases.
The factual backdrop: In preparation for the synchronized national
and local elections scheduled on 11 May 1992, the Commission on
Elections (COMELEC) issued on 11 December 1991 Resolution No.
2323 otherwise referred to as the "Gun Ban," promulgating rules
and regulations on bearing, carrying and transporting of firearms
or other deadly weapons, on security personnel or bodyguards,
on bearing arms by members of security agencies or police
organizations, and organization or maintenance of reaction forces
during the election period. 1Subsequently, on 26 December 1991
COMELEC issued Resolution No. 2327 providing for the summary
disqualification of candidates engaged in gunrunning, using and
transporting of firearms, organizing special strike forces, and
establishing spot checkpoints. 2
On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P.
Taccad, Sergeant-at-Arms, House of Representatives, wrote
petitioner who was then Congressman of the 1st District of
Bulacan requesting the return of the two (2) firearms 3 issued to
him by the House of Representatives. Upon being advised of the
request on 13 January 1992 by his staff, petitioner immediately
instructed his driver, Ernesto Arellano, to pick up the firearms
from petitioner's house at Valle Verde and return them to
Congress.
Meanwhile, at about five o'clock in the afternoon of the same
day, the Philippine National Police (PNP) headed by Senior
Superintendent Danilo Cordero set up a checkpoint outside the
Batasan Complex some twenty (20) meters away from its
entrance. About thirty minutes later, the policemen manning the
outpost flagged down the car driven by Arellano as it approached
the checkpoint. They searched the car and found the firearms
neatly packed in their gun cases and placed in a bag in the trunk
of the car. Arellano was then apprehended and detained. He
explained that he was ordered by petitioner to get the firearms
from the house and return them to Sergeant-at-Arms Taccad of
the House of Representatives.
126
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Thereafter, the police referred Arellano's case to the Office of the
City Prosecutor for inquest. The referral did not include petitioner
as among those charged with an election offense. On 15 January
1992, the City Prosecutor ordered the release of Arellano after
finding the latter's sworn explanation meritorious. 4
On 28 January 1992, the City Prosecutor invited petitioner to shed
light on the circumstances mentioned in Arellano's sworn
explanation. Petitioner not only appeared at the preliminary
investigation to confirm Arellano's statement but also wrote the
City Prosecutor urging him to exonerate Arellano. He explained
that Arellano did not violate the firearms ban as he in fact was
complying with it when apprehended by returning the firearms to
Congress; and, that he was petitioner's driver, not a security
officer nor a bodyguard. 5
On 6 March 1992, the Office of the City Prosecutor issued a
resolution which, among other matters, recommended that the
case against Arellano be dismissed and that the "unofficial"
charge against petitioner be also dismissed. 6
Nevertheless, on 6 April 1992, upon recommendation of its Law
Department, COMELEC issued Resolution No. 92-0829 directing
the filing of information against petitioner and Arellano for
violation of Sec. 261, par. (q), of B.P. Blg. 881 otherwise known as
the Omnibus Election Code, in relation to Sec. 32 of R.A. No.
7166; 7 and petitioner to show cause why he should not be
disqualified from running for an elective position, pursuant to
COMELEC Resolution No. 2327, in relation to Sec. 32, 33 and 35 of
R.A. 7166, and
Sec. 52, par. (c), of B.P. Blg. 881. 8
On 13 April 1992, petitioner moved for reconsideration and to
hold in abeyance the administrative proceedings as well as the
filing of the information in court. 9 On 23 April 1992, the COMELEC
denied petitioner's motion for reconsideration. 10 Hence, this
recourse.
Petitioner questions the constitutionality of Resolution No. 2327.
He argues that the rules and regulations of an administrative body
must respect the limits defined by law; that the Omnibus Election
Code provides for the disqualification of any person/candidate
from running for or holding a public office, i.e., any person who
has either been declared by competent authority as insane or
incompetent or has been sentenced by final judgment for
subversion, insurrection, rebellion or for any offense for which he
has been sentenced to a penalty of more than eighteen months or
for a crime involving moral turpitude; that gunrunning, using or
transporting firearms or similar weapons and other acts
mentioned in the resolution are not within the letter or spirit of
the provisions of the Code; that the resolution did away with the
requirement of final conviction before the commission of certain
offenses; that instead, it created a presumption of guilt as a
candidate may be disqualified from office in situations (a) where
the criminal charge is still pending, (b) where there is no pending
criminal case, and (c) where the accused has already been
acquitted, all contrary to the requisite quantum of proof for one
to be disqualified from running or holding public office under the
Omnibus Election Code, i.e., proof beyond reasonable doubt. As a
result, petitioner concludes, Resolution No. 2327 violates the
fundamental law thus rendering it fatally defective.
But, the issue on the disqualification of petitioner from running in
the
11 May 1992 synchronized elections was rendered moot when he
lost his bid for a seat in Congress in the elections that ensued.
Consequently, it is now futile to discuss the implications of the
charge against him on his qualification to run for public office.
However, there still remains an important question to be
resolved, i.e., whether he can be validly prosecuted for instructing
his driver to return to the Sergeant-at-Arms of the House of
Representatives the two firearms issued to him on the basis of the
evidence gathered from the warrantless search of his car.
Petitioner strongly protests against the manner by which the PNP
conducted the search. According to him, without a warrant and
without informing the driver of his fundamental rights the
policemen searched his car. The firearms were not tucked in the
waist nor within the immediate reach of Arellano but were neatly
packed in their gun cases and wrapped in a bag kept in the trunk
of the car. Thus, the search of his car that yielded the evidence for
the prosecution was clearly violative of Secs. 2 and 3, par. (2), Art.
III, of the Constitution. 11
Petitioner further maintains that he was neither impleaded as
party respondent in the preliminary investigation before the
Office of the City Prosecutor nor included in the charge sheet.
Consequently, making him a respondent in the criminal
information would violate his constitutional right to due process.
Petitioner disputes the charge that he violated Sec. 33 of R.A.
7166, which prohibits any candidate for public office during the
election period from employing or availing himself or engaging
the services of security personnel or bodyguards since,
admittedly, Arellano was not a security officer or bodyguard but a
civilian employee assigned to him as driver by the House of
Representatives. Specifically, petitioner further argues, Arellano
was instructed to return to Congress, as he did, the firearms in
compliance with the directive of its Sergeant-at-Arms pursuant to
the "Gun Ban," thus, no law was in fact violated. 12
TROPANG POTCHI
On 25 June 1992, we required COMELEC to file its own comment
on the 
petition 13 upon manifestation of the Solicitor General that it could
not take the position of COMELEC and prayed instead to be
excused from filing the required comment. 14
COMELEC claims that petitioner is charged with violation of Sec.
261, par. (q), in relation to Sec. 263, of B.P. Blg. 881 which
provides that "the principals, accomplices and accessories, as
defined in the Revised Penal Code, shall be criminally liable for
election offenses." It points out that it was upon petitioner's
instruction that Arellano brought the firearms in question outside
petitioner's residence, submitting that his right to be heard was
not violated as he was invited by the City Prosecutor to explain
the circumstances regarding Arellano's possession of the firearms.
Petitioner also filed a sworn written explanation about the
incident. Finally, COMELEC claims that violation of
the "Gun Ban" is mala prohibita, hence, the intention of the
offender is immaterial. 15
Be that as it may, we find no need to delve into the alleged
constitutional infirmity of Resolution No. 2327 since this petition
may be resolved without passing upon this particular issue. 16
As a rule, a valid search must be authorized by a search warrant
duly issued by an appropriate authority. However, this is not
absolute. Aside from a search incident to a lawful arrest, a
warrantless search had been upheld in cases of moving vehicles
and the seizure of evidence in plain view, 17 as well as the search
conducted at police or military checkpoints which we declared are
not illegal per se, and stressed that the warrantless search is not
violative of the Constitution for as long as the vehicle is neither
searched nor its occupants subjected to a body search, and the
inspection of the vehicle is merely limited to a visual search. 18
Petitioner contends that the guns were not tucked in Arellano's
waist nor placed within his reach, and that they were neatly
packed in gun cases and placed inside a bag at the back of the car.
Significantly, COMELEC did not rebut this claim. The records do
not show that the manner by which the package was bundled led
the PNP to suspect that it contained firearms. There was no
mention either of any report regarding any nervous, suspicious or
unnatural reaction from Arellano when the car was stopped and
searched. Given these circumstances and relying on its visual
observation, the PNP could not thoroughly search the car lawfully
as well as the package without violating the constitutional
injunction.
An extensive search without warrant could only be resorted to if
the officers conducting the search had reasonable or probable
cause to believe before the search that either the motorist was a
law offender or that they would find the instrumentality or
127
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
evidence pertaining to the commission of a crime in the vehicle to
be searched.19 The existence of probable cause justifying the
warrantless search is determined by the facts of each
case. 20 Thus, we upheld the validity of the warrantless search in
situations where the smell of marijuana emanated from a plastic
bag owned by the accused, or where the accused was acting
suspiciously, and attempted to flee. 21
We also recognize the stop-and-search without warrant
conducted by police officers on the basis of prior confidential
information which were reasonably corroborated by other
attendant matters, e.g., where a confidential report that a
sizeable volume of marijuana would be transported along the
route where the search was conducted and appellants were
caught in flagrante delicto transporting drugs at the time of their
arrest; 22where apart from the intelligence information, there
were reports by an undercover "deep penetration" agent that
appellants were bringing prohibited drugs into the
country; 23 where the information that a Caucasian coming from
Sagada bringing prohibited drugs was strengthened by the
conspicuous bulge in accused's waistline, and his suspicious
failure to produce his passport and other identification
papers; 24 where the physical appearance of the accused fitted the
description given in the confidential information about a woman
transporting marijuana; 25 where the accused carrying a bulging
black leather bag were suspiciously quiet and nervous when
queried about its contents; 26 or where the identity of the drug
courier was already established by police authorities who received
confidential information about the probable arrival of accused on
board one of the vessels arriving in Dumaguete City. 27
In the case at bench, we find that the checkpoint was set up
twenty (20) meters from the entrance to the Batasan Complex to
enforce Resolution
No. 2327. There was no evidence to show that the policemen
were impelled to do so because of a confidential report leading
them to reasonably believe that certain motorists matching the
description furnished by their informant were engaged in
gunrunning, transporting firearms or in organizing special strike
forces. Nor, as adverted to earlier, was there any indication from
the package or behavior of Arellano that could have triggered the
suspicion of the policemen. Absent such justifying circumstances
specifically pointing to the culpability of petitioner and Arellano,
the search could not be valid. The action then of the policemen
unreasonably intruded into petitioner's privacy and the security of
his property, in violation of Sec. 2, Art. III, of the Constitution.
Consequently, the firearms obtained in violation of petitioner's
right against warrantless search cannot be admitted for any
purpose in any proceeding.
It may be argued that the seeming acquiescence of Arellano to
the search constitutes an implied waiver of petitioner's right to
question the reasonableness of the search of the vehicle and the
seizure of the firearms.
While Resolution No. 2327 authorized the setting up of
checkpoints, it however stressed that "guidelines shall be made to
ensure that no infringement of civil and political rights results
from the implementation of this authority," and that "the places
and manner of setting up of checkpoints shall be determined in
consultation with the Committee on Firearms Ban and Security
Personnel created under Sec. 5, Resolution No. 2323." 28 The facts
show that PNP installed the checkpoint at about five o'clock in the
afternoon of 13 January 1992. The search was made soon
thereafter, or thirty minutes later. It was not shown that news of
impending checkpoints without necessarily giving their locations,
and the reason for the same have been announced in the media
to forewarn the citizens. Nor did the informal checkpoint that
afternoon carry signs informing the public of the purpose of its
operation. As a result, motorists passing that place did not have
any inkling whatsoever about the reason behind the instant
exercise. With the authorities in control to stop and search
passing vehicles, the motorists did not have any choice but to
submit to the PNP's scrutiny. Otherwise, any attempt to turnabout
albeit innocent would raise suspicion and provide probable cause
for the police to arrest the motorist and to conduct an extensive
search of his vehicle.
In the case of petitioner, only his driver was at the car at that time
it was stopped for inspection. As conceded by COMELEC, driver
Arellano did not know the purpose of the checkpoint. In the face
of fourteen (14) armed policemen conducting the
operation, 29 driver Arellano being alone and a mere employee of
petitioner could not have marshalled the strength and the
courage to protest against the extensive search conducted in the
vehicle. In such scenario, the "implied acquiescence," if there was
any, could not be more than a mere passive conformity on
Arellano's part to the search, and "consent" given under
intimidating or coercive circumstances is no consent within the
purview of the constitutional guaranty.
Moreover, the manner by which COMELEC proceeded against
petitioner runs counter to the due process clause of the
Constitution. The facts show that petitioner was not among those
charged by the PNP with violation of the Omnibus Election Code.
Nor was he subjected by the City Prosecutor to a preliminary
investigation for such offense. The non-disclosure by the City
Prosecutor to the petitioner that he was a respondent in the
preliminary investigation is violative of due process which requires
that the procedure established by law should be obeyed.30
TROPANG POTCHI
COMELEC argues that petitioner was given the change to be heard
because he was invited to enlighten the City Prosecutor regarding
the circumstances leading to the arrest of his driver, and that
petitioner in fact submitted a sworn letter of explanation
regarding the incident. This does not satisfy the requirement of
due process the essence of which is the reasonable opportunity to
be heard and to submit any evidence one may have in support of
his defense. 31 Due process guarantees the observance of both
substantive and procedural rights, whatever the source of such
rights, be it the Constitution itself or only a statute or a rule of
court. 32 In Go v. Court of Appeals, 33 we held
that —
While the right to preliminary investigation
is statutory rather than constitutional in its
fundament, since it has in fact been
established by statute, it is a component
part of due process in criminal justice. The
right to have a preliminary investigation
conducted before being bound over to trial
for a criminal offense and hence formally at
risk of incarceration or some other penalty
is not a mere formal or technical right; it is
a substantive right . . . . [T]he right to an
opportunity to avoid a process painful to
anyone save, perhaps, to hardened
criminals is a valuable right. To deny
petitioner's claim to a preliminary
investigation would be to deprive him of
the full measure of his right to due process.
Apparently, petitioner was merely invited during the preliminary
investigation of Arellano to corroborate the latter's explanation.
Petitioner then was made to believe that he was not a party
respondent in the case, so that his written explanation on the
incident was only intended to exculpate Arellano, not petitioner
himself. Hence, it cannot be seriously contended that petitioner
was fully given the opportunity to meet the accusation against
him as he was not apprised that he was himself a respondent
when he appeared before the City Prosecutor.
128
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Finally, it must be pointed out too that petitioner's filing of a
motion for reconsideration with COMELEC cannot be considered
as a waiver of his claim to a separate preliminary investigation for
himself. The motion itself expresses petitioner's vigorous
insistence on his right. Petitioner's protestation started as soon as
he learned of his inclusion in the charge, and did not ease up even
after COMELEC's denial of his motion for reconsideration. This is
understandably so since the prohibition against carrying firearms
bears the penalty of imprisonment of not less than one (1) year
nor more than six (6) years without probation and with
disqualification from holding public office, and deprivation of the
right to suffrage. Against such strong stance, petitioner clearly did
not waive his right to a preliminary investigation.
WHEREFORE, the instant petition is GRANTED. The warrantless
search conducted by the Philippine National Police on 13 January
1992 is declared illegal and the firearms seized during the
warrantless search cannot be used as evidence in any proceeding
against petitioner. Consequently, COMELEC Resolution No. 92-
0829 dated 6 April 1992 being violative of the Constitution is SET
ASIDE.
The temporary restraining order we issued on 5 May 1992 is
made permanent.
SO ORDERED.
PHILIPPINE COMMUNICATIONS SATELLITE CORPORATION,
petitioner, vs. JOSE LUIS A. ALCUAZ, as NTC Commissioner, and
NATIONAL TELECOMMUNICATIONS COMMISSION, respondents.
G.R. No. 84818 | 1989-12-18
DECISION
REGALADO, J.:
This case is posed as one of first impression in the sense that it
involves the public utility services of the petitioner Philippine
Communications Satellite Corporation (PHILCOMSAT, for short)
which is the only one rendering such services in the Philippines. 
The petition before us seeks to annul and set aside an Order 1
issued by respondent Commissioner Jose Luis Alcuaz of the
National Telecommunications Commission (hereafter, NTC), dated
September 2, 1988, which directs the provisional reduction of the
rates which may be charged by petitioner for certain specified
lines of its services by fifteen percent (15%) with the reservation
to make further reductions later, for being violative of the
constitutional prohibition against undue delegation of legislative
power and a denial of procedural, as well as substantive, due
process of law.  and then Pinugay II while they were being refurbished. Pinugay III
The antecedental facts as summarized by petitioner 2 are not in
dispute. By virtue of Republic Act No. 5514, PHILCOMSAT was
granted "a franchise to establish, construct, maintain and operate
in the Philippines, at such places as the grantee may select,
station or stations and associated equipment and facilities for
international satellite communications." Under this franchise, it
was likewise granted the authority to "construct and operate such
ground facilities as needed to deliver telecommunications services
from the communications satellite system and ground terminal or
terminals."
Pursuant to said franchise, petitioner puts on record that it
undertook the following activities and established the following
installations:
1. In 1967, PHILCOMSAT established its provisional earth station
in Pinugay, Rizal.
2. In 1968, earth station standard "A" antenna (Pinugay I) was
established. Pinugay I provided direct satellite communication
links with the Pacific Ocean Region (the United States, Australia,
Canada, Hawaii, Guam, Korea, Thailand, China [PROC], New
TROPANG POTCHI
Zealand and Brunei) thru the Pacific Ocean INTELSAT satellite.
3. In 1971, a second earth station standard "A" antenna (Pinugay
II) was established. Pinugay II provided links with the Indian Ocean
Region (major cities in Europe, Middle East, Africa, and other Asia
Pacific countries operating within the region) thru the Indian
Ocean INTELSAT satellite.
4. In 1983, a third earth station standard "B" antenna (Pinugay III)
was established to temporarily assume the functions of Pinugay I
now serves as spare or reserved antenna for possible
contingencies.
5. In 1983, PHILCOMSAT constructed and installed a standard "B"
antenna at Clark Air Field, Pampanga as a television receive-only
earth station which provides the U.S. Military bases with a 24-
hour television service.
6. In 1989, petitioner completed the installation of a third
standard "A" earth station (Pinugay IV)to take over the links in
Pinugay I due to obsolescence. 3
By designation of the Republic of the Philippines, the petitioner is
also the sole signatory for the Philippines in the Agreement and
the Operating Agreement relating to the International
Telecommunications Satellite Organization (INTELSAT) of 115
member nations, as well as in the Convention and the Operating
Agreement of the International Maritime Satellite Organization
(INMARSAT) of 53 member nations, which two global commercial
telecommunications satellite corporations were collectively
established by various states in line with the principles set forth in
Resolution 1721 (XVI) of the General Assembly of the United
Nations. 
129
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Since 1968, the petitioner has been leasing its satellite circuits to:
1. Philippine Long Distance Telephone Company;
2. Philippine Global Communications, Inc.;
3. Eastern Telecommunications Phils., Inc.;
4. Globe Mackay Cable and Radio Corp. ITT; and
5. Capitol Wireless, Inc.
or their predecessors-in-interest. The satellite services thus
provided by petitioner enable said international carriers to serve
the public with indispensable communication services, such as
overseas telephone, telex, facsimile, telegrams, high speed data,
live television in full color, and television standard conversion
from European to American or vice versa.
Under Section 5 of Republic Act No. 5514, petitioner was exempt
from the jurisdiction of the then Public Service Commission, now
respondent NTC. However, pursuant to Executive Order No. 196
issued on June 17, 1987, petitioner was placed under the
jurisdiction, control and regulation of respondent NTC, including
all its facilities and services and the fixing of rates. Implementing
said Executive Order No. 196, respondents required petitioner to
apply for the requisite certificate of public convenience and
necessity covering its facilities and the services it renders, as well
as the corresponding authority to charge rates therefor.  the Commission finds (sic) in its further evaluation that more
Consequently, under date of September 9, 1987, petitioner filed
with respondent NTC an application 4 for authority to continue
operating and maintaining the same facilities it has been
continuously operating and maintaining since 1967, to continue
providing the international satellite communications services it
has likewise been providing since 1967, and to charge the current
rates applied for in rendering such services. Pending hearing, it
also applied for a provisional authority so that it can continue to
operate and maintain the above mentioned facilities, provide the
services and charge therefor the aforesaid rates therein applied
for.
On September 16, 1987, petitioner was granted a provisional
authority to continue operating its existing facilities, to render the
services it was then offering, and to charge the rates it was then
charging. This authority was valid for six (6) months from the date
of said order. 5 When said provisional authority expired on March
17, 1988, it was extended for another six (6) months, or up to
September 16, 1988.
The NTC order now in controversy had further extended the
provisional authority of the petitioner for another six (6) months,
counted from September 16, 1988, but it directed the petitioner
to charge modified reduced rates through a reduction of fifteen
percent (15%) on the present authorized rates. Respondent
Commissioner ordered said reduction on the following ground:
"The Commission in its on-going review of present service rates
takes note that after an initial evaluation by the Rates Regulation
Division of the Common Carriers Authorization Department of the
financial statements of applicant, there is merit in a REDUCTION in
some of applicant's rates, subject to further reductions, should
reduction should be effected either on the basis of a provisional
authorization or in the final consideration of the case." 6
PHILCOMSAT assails the above-quoted order for the following
reasons:
1. The enabling act (Executive Order No. 546) of respondent NTC
empowering it to fix rates for public service communications does
TROPANG POTCHI
not provide the necessary standards constitutionally required,
hence there is an undue delegation of legislative power,
particularly the adjudicatory powers of NTC;
2. Assuming arguendo that the rate-fixing power was properly and
constitutionally conferred, the same was exercised in an
unconstitutional manner, hence it is ultra vires, in that (a) the
questioned order violates procedural due process for having been
issued without prior notice and hearing; and (b) the rate
reduction it imposes is unjust, unreasonable and confiscatory,
thus constitutive of a violation of substantive due process.
I. Petitioner asseverates that nowhere in the provisions of
Executive Order No. 546, providing for the creation of respondent
NTC and granting its rate-fixing powers, nor of Executive Order
No. 196, placing petitioner under the jurisdiction of respondent
NTC, can it be inferred that respondent NTC is guided by any
standard in the exercise of its rate-fixing and adjudicatory powers.
While petitioner in its petition-in-chief raised the issue of undue
delegation of legislative power, it subsequently clarified its said
submission to mean that the order mandating a reduction of
certain rates is undue delegation not of legislative but of quasi-
judicial power to respondent NTC, the exercise of which allegedly
requires an express conferment by the legislative body.
Whichever way it is presented, petitioner is in effect questioning
the constitutionality of Executive Orders Nos. 546 and 196 on the
ground that the same do not fix a standard for the exercise of the
power therein conferred.
We hold otherwise.
Fundamental is the rule that delegation of legislative power may
be sustained only upon the ground that some standard for its
130
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
exercise is provided and that the legislature in making the
delegation has prescribed the manner of the exercise of the
delegated power. Therefore, when the administrative agency
concerned, respondent NTC in this case, establishes a rate, its act
must both be non-confiscatory and must have been established in
the manner prescribed by the legislature; otherwise, in the
absence of a fixed standard, the delegation of power becomes
unconstitutional. In case of a delegation of rate-fixing power, the
only standard which the legislature is required to prescribe for the
guidance of the administrative authority is that the rate be
reasonable and just. However, it has been held that even in the
absence of an express requirement as to reasonableness, this
standard may be implied. 7
It becomes important then to ascertain the nature of the power
delegated to respondent NTC and the manner required by the
statute for the lawful exercise thereof.
Pursuant to Executive Orders Nos. 546 and 196, respondent NTC
is empowered, among others, to determine and prescribe rates
pertinent to the operation of public service communications
which necessarily include the power to promulgate rules and
regulations in connection therewith. And, under Section 15(g) of
Executive Order No. 546, respondent NTC should be guided by the
requirements of public safety, public interest and reasonable
feasibility of maintaining effective competition of private entities
in communications and broadcasting facilities. Likewise, in Section
6(d) thereof, which provides for the creation of the Ministry of
Transportation and Communications with control and supervision
over respondent NTC, it is specifically provided that the national
economic viability of the entire network or components of the
communications systems contemplated therein should be
maintained at reasonable rates. We need not go into an in-depth
analysis of the pertinent provisions of the law in order to conclude
that respondent NTC, in the exercise of its rate-fixing power, is
limited by the requirements of public safety, public interest,
reasonable feasibility and reasonable rates, which conjointly more
than satisfy the requirements of a valid delegation of legislative
power.
II. On another tack, petitioner submits that the questioned order
violates procedural due process because it was issued motu
proprio, without notice to petitioner and without the benefit of a
hearing. Petitioner laments that said order was based merely on
an "initial evaluation," which is a unilateral evaluation, but had
petitioner been given an opportunity to present its side before
the order in question was issued, the confiscatory nature of the
rate reduction and the consequent deterioration of the public
service could have been shown and demonstrated to
respondents. Petitioner argues that the function involved in the
rate fixing-power of NTC is adjudicatory and hence quasi-judicial,
not quasi-legislative; thus, notice and hearing are necessary and
the absence thereof results in a violation of due process.
Respondents admit that the application of a policy like the fixing
of rates as exercised by administrative bodies is quasi-judicial
rather than quasi-legislative: that where the function of the
administrative agency is legislative, notice and hearing are not
required, but where an order applies to a named person, as in the
instant case, the function involved is adjudicatory. 8 Nonetheless,
they insist that under the facts obtaining the order in question
need not be preceded by a hearing, not because it was issued
pursuant to respondent NTC's legislative function but because the
assailed order is merely interlocutory, it being an incident in the
ongoing proceedings on petitioner's application for a certificate of
public convenience; and that petitioner is not the only primary
source of data or information since respondent is currently
engaged in a continuing review of the rates charged.
TROPANG POTCHI
We find merit in petitioner's contention.
In Vigan Electric Light Co., Inc. vs. Public Service Commission, 9 we
made a categorical classification as to when the rate-fixing power
of administrative bodies is quasi-judicial and when it is legislative,
thus:
"Moreover, although the rule-making power end even the power
to fix rates ----when such rules and/or rates are meant to apply to
all enterprises of a given kind throughout the Philippines ---- may
partake of a legislative character, such is not the nature of the
order complained of. Indeed, the same applies exclusively to
petitioner herein. What is more, it is predicated upon the finding
of fact ---- based upon a report submitted by the General Auditing
Office ---- that petitioner is making a profit of more than 12% of its
invested capital, which is denied by petitioner. Obviously, the
latter is entitled to cross-examine the maker of said report, and to
introduce evidence to disprove the contents thereof and/or
explain or complement the same, as well as to refute the
conclusion drawn therefrom by the respondent. In other words, in
making said finding of fact, respondent performed a function
partaking of a quasi-judicial character, the valid exercise of which
demands previous notice and hearing."
This rule was further explained in the subsequent case of The
Central Bank of the Philippines vs. Cloribel, et al. 10 to wit:
"It is also clear from the authorities that where the function of the
administrative body is legislative, notice of hearing is not required
by due process of law (See Oppenheimer, Administrative Law, 2
Md. L.R. 185, 204, supra, where it is said: 'If the nature of the
administrative agency is essentially legislative, the requirements
of notice and hearing are not necessary. The validity of a rule of
131
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
future action which affects a group, if vested rights of liberty or
property are not involved, is not determined according to the
same rules which apply in the case of the direct application of a
policy to a specific individual') . . . It is said in 73 C.J.S. Public
Administrative Bodies and Procedure, sec. 130, pages 452 and
453: 'Aside from statute, the necessity of notice and hearing in an
administrative proceeding depends on the character of the
proceeding and the circumstances involved. In so far as
generalization is possible in view of the great variety of
administrative proceedings, it may be stated as a general rule that
notice and hearing are not essential to the validity of
administrative action where the administrative body acts in the
exercise of executive, administrative, or legislative functions; but
where a public administrative body acts in a judicial or quasi-
judicial matter, and its acts are particular and immediate rather
than general and prospective, the person whose rights or
property may be affected by the action is entitled to notice and
hearing." 11
The order in question which was issued by respondent Alcuaz no
doubt contains all the attributes of a quasi-judicial adjudication.
Foremost is the fact that said order pertains exclusively to
petitioner and to no other. Further, it is premised on a finding of
fact, although patently superficial, that there is merit in a
reduction of some of the rates charged ---- based on an initial
evaluation of petitioner's financial statements ---- without
affording petitioner the benefit of an explanation as to what
particular aspect or aspects of the financial statements warranted
a corresponding rate reduction. No rationalization was offered nor
were the attending contingencies, if any, discussed, which
prompted respondents to impose as much as a fifteen percent
(15%) rate reduction. It is not far-fetched to assume that
petitioner could be in a better position to rationalize its rates vis-
a-vis the viability of its business requirements. The rates it charges
result from an exhaustive and detailed study it conducts of the
multi-faceted intricacies attendant to a public service undertaking
of such nature and magnitude. We are, therefore, inclined to lend
greater credence to petitioner's ratiocination that an immediate
reduction in its rates would adversely affect its operations and the
quality of its service to the public considering the maintenance
requirements, the projects it still has to undertake and the
financial outlay involved. Notably, petitioner was not even
afforded the opportunity to cross-examine the inspector who
issued the report on which respondent NTC based its questioned
order.  There is no reason to assume that the aforesaid provision does
At any rate, there remains the categorical admission made by
respondent NTC that the questioned order was issued pursuant to
its quasi-judicial functions. It, however, insists that notice and
hearing are not necessary since the assailed order is merely
incidental to the entire proceedings and, therefore, temporary in
nature. This postulate is bereft of merit.
While respondents may fix a temporary rate pending final
determination of the application of petitioner, such rate-fixing
order, temporary though it may be, is not exempt from the
statutory procedural requirements of notice and hearing, as well
as the requirement of reasonableness. Assuming that such power
is vested in NTC, it may not exercise the same in an arbitrary and
confiscatory manner. Categorizing such an order as temporary in
nature does not perforce entail the applicability of a different rule
of statutory procedure than would otherwise be applied to any
other order on the same matter unless otherwise provided by the
applicable law. In the case at bar, the applicable statutory
provision is Section 16(c) of the Public Service Act which provides:
"Section 16. Proceedings of the Commission, upon notice and
hearing. The Commission shall have power, upon proper notice
TROPANG POTCHI
and hearing in accordance with the rules and provisions of this
Act, subject to the limitations and exceptions mentioned and
saving provisions to the contrary:
xxx xxx xxx
(c ) To fix and determine individual or joint rates, . . . which shall
be imposed, observed and followed thereafter by any public
service; . . . ."
not apply to respondent NTC, there being no limiting, excepting,
or saving provisions to the contrary in Executive Orders Nos. 546
and 196.
It is thus clear that with regard to rate-fixing, respondent has no
authority to make such order without first giving petitioner a
hearing, whether the order be temporary or permanent, and it is
immaterial whether the same is made upon a complaint, a
summary investigation, or upon the commission's own motion as
in the present case. That such a hearing is required is evident in
respondents' order of September 16, 1987 in NTC Case No. 8794
which granted PHILCOMSAT a provisional authority "to continue
operating its existing facilities, to render the services it presently
offers, and to charge the rates as reduced by them" under the
condition that "(s)ubject to hearing and the final consideration of
the merit of this application, the Commission may modify, revise
or amend the rates . . .." 12
While it may be true that for purposes of rate-fixing respondents
may have other sources of information or data, still, since a
hearing is essential, respondent NTC should act solely on the basis
of the evidence before it and not on knowledge or information
otherwise acquired by it but which is not offered in evidence or,
132
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
even if so adduced, petitioner was given no opportunity to
controvert.
Again, the order requires the new reduced rates to be made
effective on a specified date. It becomes a final legislative act as to
the period during which it has to remain in force pending the final
determination of the case. 13 An order of respondent NTC
prescribing reduced rates, even for a temporary period, could be
unjust, unreasonable or even confiscatory, especially if the rates
are unreasonably low, since the utility permanently loses its just
revenue during the prescribed period. In fact, such order is in
effect final insofar as the revenue during the period covered by
the order is concerned. Upon a showing, therefore, that the order
requiring a reduced rate is confiscatory, and will unduly deprive
petitioner of a reasonable return upon its property, a declaration
of its nullity becomes inductible, which brings us to the issue on
substantive due process.
III. Petitioner contends that the rate reduction is confiscatory in
that its implementation would virtually result in a cessation of its
operations and eventual closure of business. On the other hand,
respondents assert that since petitioner is operating its
communications satellite facilities through a legislative franchise,
as such grantee it has no vested right therein. What it has is
merely a privilege or license which may be revoked at will by the
State at any time without necessarily violating any vested
property right of herein petitioner. While petitioner concedes this
thesis of respondent, it counters that the withdrawal of such
privilege should nevertheless be neither whimsical nor arbitrary,
but it must be fair and reasonable.
There is no question that petitioner is a mere grantee of a
legislative franchise which is subject to amendment, alteration, or
repeal by Congress when the common good so requires. 14
Apparently, therefore, such grant cannot be unilaterally revoked
absent a showing that the termination of the operation of said
utility is required by the common good.
The rule is that the power of the State to regulate the conduct
and business of public utilities is limited by the consideration that
it is not the owner of the property of the utility, or clothed with
the general power of management incident to ownership, since
the private right of ownership to such property remains and is not
to be destroyed by the regulatory power. The power to regulate is
not the power to destroy useful and harmless enterprises, but is
the power to protect, foster, promote, preserve, and control with
due regard for the interest, first and foremost, of the public, then
of the utility and of its patrons. Any regulation, therefore, which
operates as an effective confiscation of private property or
constitutes an arbitrary or unreasonable infringement of property
rights is void, because it is repugnant to the constitutional
guaranties of due process and equal protection of the laws. 15
Hence, the inherent power and authority of the State, or its
authorized agent, to regulate the rates charged by public utilities
should be subject always to the requirement that the rates so
fixed shall be reasonable and just. A commission has no power to
fix rates which are unreasonable or to regulate them arbitrarily.
This basic requirement of reasonableness comprehends such
rates which must not be so low as to be confiscatory, or too high
as to be oppressive. 16
What is a just and reasonable rate is not a question of formula but
of sound business judgment based upon the evidence; 17 it is a
question of fact calling for the exercise of discretion, good sense,
and a fair, enlightened and independent judgment 18 In
determining whether a rate is confiscatory, it is essential also to
consider the given situation, requirements and opportunities of
TROPANG POTCHI
the utility. A method often employed in determining
reasonableness is the fair return upon the value of the property to
the public utility. Competition is also a very important factor in
determining the reasonableness of rates since a carrier is allowed
to make such rates as are necessary to meet competition. 19
A cursory perusal of the assailed order reveals that the rate
reduction is solely and primarily based on the initial evaluation
made on the financial statements of petitioner, contrary to
respondent NTC's allegation that it has several other sources of
information without, however, divulging such sources.
Furthermore, it did not as much as make an attempt to elaborate
on how it arrived at the prescribed rates. It just perfunctorily
declared that based on the financial statements, there is merit for
a rate reduction without any elucidation on what implications and
conclusions were necessarily inferred by it from said statements.
Nor did it deign to explain how the data reflected in the financial
statements influenced its decision to impose a rate reduction.
On the other hand, petitioner may likely suffer a severe drawback,
with the consequent detriment to the public service, should the
order of respondent NTC turn out to be unreasonable and
improvident. The business in which petitioner is engaged is
unique in that its machinery and equipment have always to be
taken in relation to the equipment on the other end of the
transmission arrangement. Any lack, aging, acquisition,
rehabilitation, or refurbishment of machinery and equipment
necessarily entails a major adjustment or innovation on the
business of petitioner. As pointed out by petitioner, any change in
the sending end abroad has to be matched with the
corresponding change in the receiving end in the Philippines.
conversely, any change in the receiving end abroad has to be
matched with the corresponding change in the sending end in the
Philippines. An inability on the part of petitioner to meet the
133
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
variegations demanded by technology could result in a
deterioration or total failure of the service of satellite
communications.  SO ORDERED.
At present, petitioner is engaged in several projects aimed at
refurbishing, rehabilitating, and renewing its machinery and
equipment in order to keep up with the continuing changes of the
times and to maintain its facilities at a competitive level with the
technological advances abroad. These projected undertakings
were formulated on the premise that rates are maintained at
their present or at reasonable levels. Hence, an undue reduction
thereof may practically lead to a cessation of its business. While
we concede the primacy of the public interest in an adequate and
efficient service, the same is not necessarily to be equated with
reduced rates. Reasonableness in the rates assumes that the
same is fair to both the public utility and the consumer.  erudite and thorough discussion of the respondent's authority.
Consequently, we hold that the challenged order, particularly on
the issue of rates provided therein, being violative of the due
process clause is void and should be nullified. Respondents should
now proceed, as they should heretofore have done, with the
hearing and determination of petitioner's pending application for
a certificate of public convenience and necessity and in which
proceeding the subject of rates involved in the present
controversy, as well as other matters involved in said application,
may be duly adjudicated with reasonable dispatch and with due
observance or our pronouncements herein.
WHEREFORE, the writ prayed for is GRANTED and the order of
respondents, dated September 2, 1988, in NTC Case No. 87-94 is
hereby SET ASIDE. The temporary restraining order issued under
our resolution of September 13, 1988, as specifically directed
against the aforesaid order of respondents on the matter of
existing rates on petitioner's present authorized services, is
TROPANG POTCHI
hereby made permanent. our nation's future on the assumption that the head of an agency
knows best what is good for the people. I believe that in the
exercise of quasi-legislative powers, administrative agencies,
much, much more than Congress, should hold hearings and
Fernan, (C.J.), Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, should be given guidelines as to when notices and hearings are
Gancayco, Bidin, Sarmiento, Cortá©s, Griño-Aquino and essential even in quasi-legislation.
Medialdea, JJ., concur.
----------------
Padilla, J., took no part.
ANG TIBAY, represented by TORIBIO TEODORO, manager and
Separate Opinions proprietor, and NATIONAL WORKERS' BROTHERHOOD,
petitioners, vs. THE COURT OF INDUSTRIAL RELATIONS and
GUTIERREZ, JR., J., concurring:
NATIONAL LABOR UNION, INC., respondents.
I concur in the ponencia of Justice Ragalado and join him in the G.R. No. 46496 | 1940-02-27
However, I have reservations about our continuing to abide by the
dictum that in the exercise of quasi-legislative power, notice and
hearing are not required. I believe that this doctrine is ripe for re-
examination. 
Senators and Congressmen are directly elected by the people.
Administrative officials are not. If the members of an
administrative body are, as is so often the case, appointed not on
the basis of competence and qualifications but out of political or
personal considerations, it is not only the sense of personal
responsibility to the electorate affected by legislation which is
missing. The expertise and experience needed for the issuance of  View
sound rules and regulations would also be sorely lacking. Summary
D E C I S I O N
Congress never passes truly important legislation without holding  
public hearings. Yet, administrative officials who are not directly LAUREL, J:
attuned to the public pulse see no need for hearings. They issue  
rules and circulars with far reaching effects on our economy and
134
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
The Solicitor-General in behalf of the respondent Court of
Industrial Relations in the above-entitled case has filed a motion
for reconsideration and moves that, for the reasons stated in his
motion, we reconsider the following legal conclusions of the
majority opinion of this Court:
 
1. Que un contrato de trabajo, asi individual como colectivo, sin
termino fijo de duracion o que no sea para una determinada,
termina o bien por voluntad de cualquiera de las partes o cada vez
que llega el plazo fijado para el pago de los salarios segun
costumbre en la localidad o cuando se termine la obra;
 
2. Que los obreros de una empresa fabril, que han celebrado
contrato, ya individual ya colectivamente, con ella, sin tiempo fijo,
y que se han visto obligados a cesar en sus trabajos por haberse
declarado paro forzoso en la fabrica en la cual trabajan, dejan de
ser empleados u obreros de la misma;
 
3. Que un patrono o sociedad que ha celebrado un contrato
colectivo de trabajo con sus obreros sin tiempo fijo de duracion y
sin ser para una obra determinada y que se niega a readmitir a
dichos obreros que cesaron como consecuencia de un paro
forzoso, no es culpable de practica injusta ni incurre en la sancion
penal del articulo 5 de la Ley No. 213 del Commonwealth, aunque
su negativa a readmitir se deba a que dichos obreros pertenecen
a un determinado organismo obrero, puesto que tales ya han
dejado de ser empleados suyos por terminacion del contrato en
virtud del paro."
 
The respondent National Labor Union, Inc., on the other hand,
prays for the vacation of the judgment rendered by the majority
of this Court and the remanding of the case to the Court of
Industrial Relations for a new trial, and avers:
 
1. That Toribio Teodoro's claim that on September 26,1938, there
was shortage of leather soles in ANG TIBAY making it necessary
for him to temporarily lay off the members of the National Labor
Union Inc., is entirely false and unsupported by the records of the
Bureau of Customs and the Books of Accounts of native dealers in
leather.
 
2. That the supposed lack of leather materials claimed by Toribio
Teodoro was but a scheme adopted to systematically discharge all
the members of the National Labor Union, Inc., from work.
 
3. That Toribio Teodoro's letter to the Philippine Army dated
September 29, 1938, (re supposed delay of leather soles from the
States) was but a scheme to systematically prevent the forfeiture
of this bond despite the breach of his CONTRACT with the
Philippine Army.
 
4. That the National Workers' Brotherhood of ANG TIBAY is a
company or employer union dominated by Toribio Teodoro, the
existence and functions of which are illegal. (281 U. S., 548,
petitioner's printed memorandum, p. 25.)
 
5. That in the exercise by the laborers of their rights to collective
bargaining, majority rule and elective representation are highly
essential and indispensable. ( Sections 2 and 5, Commonwealth
Act No. 213.)
 
6. That the century provisions of the Civil Code which had been
(the) principal source of dissensions and continuous civil war in
Spain cannot and should not be made applicable in interpreting
and applying the salutary provisions of a modern labor legislation
of American origin where industrial peace has always been the
rule.
 
TROPANG POTCHI
7. That the employer Toribio Teodoro was guilty of unfair labor
practice for discriminating against the National Labor Union, Inc.,
and unjustly favoring the National Workers' Brotherhood.
 
8. That the exhibits hereto attached are so inaccessible to the
respondents that even with the exercise of due diligence they
could not be expected to have obtained them and offered as
evidence in the Court of Industrial Relations.
 
9. That the attached documents and exhibits are of such far-
reaching importance and effect that their admission would
necessarily mean the modification and reversal of the judgment
rendered herein."
 
The petitioner, Ang Tibay, has filed an opposition both to the
motion for reconsideration of the respondent Court of Industrial
Relations and to the motion for new trial of the respondent
National Labor Union, Inc.
 
In view of the conclusion reached by us and to be herein- after
stated with reference to the motion for a new trial of the
respondent National Labor Union, Inc., we are of the opinion that
it is not necessary to pass upon the motion for reconsideration of
the Solicitor-General. We shall proceed to dispose of the motion
for new trial of the respondent labor union. Before doing this,
however, we deem it necessary, in the interest of orderly
procedure in cases of this nature, to make several observations
regarding the nature of the powers of the Court of Industrial
Relations and emphasize certain guiding principles which should
be observed in the trial of cases brought before it. We have re-
examined the entire record of the proceedings had before the
Court of Industrial Relations in this case, and we have found no
substantial evidence to indicate that the exclusion of the 89
laborers here was due to their union affiliation or activity. The
135
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
whole transcript taken contains what transpired during the
hearing and is more of a record of contradictory and conflicting
statements of opposing counsel, with sporadic conclusion drawn
to suit their own views. It is evident that these statements and
expressions of views of counsel have no evidentiary value.
 
The Court of Industrial Relations is a special court whose functions
are specifically stated in the law of its creation (Commonwealth
Act No. 103). It is more an administrative board than a part of the
integrated judicial system of the nation. It is not intended to be a
mere receptive organ of the Government. Unlike a court of justice
which is essentially passive, acting only when its jurisdiction is
invoked and deciding only cases that are presented to it by the
parties litigant, the function of the Court of Industrial Relations, as
will appear from perusal of its organic law, is more active,
affirmative and dynamic. It not only exercises judicial or
quasijudicial functions in the determination of disputes between
employers and employees but its functions are far more
comprehensive and extensive. It has jurisdiction over the entire
Philippines, to consider, investigate, decide, and settle any
question, matter controversy or dispute arising between, and/or
affecting, employers and employees or laborers, and landlords
and tenants or farm-laborers, and regulate the relations between
them, subject to, and in accordance with, the provisions of
Commonwealth Act No. 103 (section 1). It shall take cognizance
for purposes of prevention, arbitration, decision and settlement,
of any industrial or agricultural dispute causing or likely to cause a
strike or lockout, arising from differences as regards wageshares
or compensation, hours of labor or conditions of tenancy or
employment, between employers and employees or laborers and
between landlords and tenants or farm-laborers, provided that
the number of employees, laborers or tenants or farm-laborers
involved exceeds thirty, and such industrial or agricultural dispute
is submitted to the Court by the Secretary of Labor or by any or
both of the parties to the controversy and certified by the
Secretary of Labor as existing and proper to be death with by the
Court for the sake of public interest. (Section A, ibid.) It shall,
before hearing the dispute and in the course of such hearing,
endeavor to reconcile the parties and induce them to settle the
dispute by amicable agreement. (Paragraph 2, section 4, ibid.)
When directed by the President of the Philippines, it shall
investigate and study all pertinent facts related to the industry
concerned or to the industries established in a designated locality,
with a view to determining the necessity and fairness of fixing and
adopting for such industry or locality a minimum wage or share of
laborers or tenants, or a maximum "canon" or rental to be paid by
the "inquilinos" or tenants or lessees to landowners. (Section 5,
ibid.) In fine, it may appeal to voluntary arbitration in the
settlement of industrial disputes; may employ mediation or
conciliation for that purpose, or recur to the more effective
system of official investigation and compulsory arbitration in
order to determine specific controversies between labor and
capital in industry and in agriculture. There is in reality here a
mingling of executive and judicial functions, which is a departure
from the rigid doctrine of the separation of governmental powers.
 
In the case of Goseco vs. Court of Industrial Relations et al., G. R.
No. 46673, promulgated September 13, 1939, we had occasion to
point out that the Court of Industrial Relations is not narrowly
constrained by technical rules of procedure, and the Act requires
it to "act according to justice and equity and substantial merits of
the case, without regard to technicalities or legal forms and shall
not be bound by any technical rules of legal evidence but may
inform its mind in such manner as it may deem just and
equitable." (Section 20, Commonwealth Act No. 103.) It shall not
be restricted to the specific relief claimed or demands made by
the parties to the industrial or agricultural dispute, but may
include in the award, order or decision any matter or
TROPANG POTCHI
determination which may be deemed necessary or expedient for
the purpose of settling the dispute or of preventing further
industrial or agricultural disputes. (Section 13, ibid.) And in the
light of this legislative policy, appeals to this Court have been
especially regulated by the rules recently promulgated by this
Court to carry into effect the avowed legislative purpose. The fact,
however, that the Court of Industrial Relations may be said to be
free from the rigidity of certain procedural requirements does not
mean that it can, in justiciable cases coming before it, entirely
ignore or disregard the fundamental and essential requirements
of due Process in trials and investigations of an administrative
character. There are cardinal primary rights which must be
respected even in proceedings of this character:
 
(1) The first of these rights is the right to a hearing which includes
the right of the party interested or affected to present his own
case and submit evidence in support thereof. In the language of
Chief Justice Hughes, in Morgan v. U. S., 304 U. S. 1, 58 S. Ct. 773,
999, 82 Law. ed 1129, "the liberty and property of the citizen shall
be protected by the rudimentary requirements of fair play."
 
(2) Not only must the party be given an opportunity to present his
case and to adduce evidence tending to establish the rights which
he asserts but the tribunal must consider the evidence presented.
(Chief Justice Hughes in Morgan v. U. S. 298 U. S. 468, 56 S. Ct.
906, 80 Law. ed. 1288.) In the language of this Court in Edwards
vs. McCoy, 22 Phil., 598, "the right to adduce evidence, without
the corresponding duty on the part of the board to consider it, is
vain. Such right is conspicuously futile if the person or persons to
whom the evidence is presented can thrust it aside without notice
or consideration."
 
(3) "While the duty to deliberate does not impose the obligation
to decide right, it does imply a necessity which cannot be
136
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
disregarded, namely, that of having something to support its
decision. A decision with absolutely nothing to support it is a
nullity, a place when directly attached." (Edwards vs. McCoy,
supra.) This principle emanates from the more fundamental
principle that the genius of constitutional government is contrary
to the vesting of unlimited power anywhere. Law is both a grant
and a limitation upon power.
 
(4) Not only must there be some evidence to support a finding or
conclusion (City of Manila vs. Agustin, G. R. No. 45844,
promulgated November 29, 1937, XXXVI O. G. 1335), but the
evidence must be "substantial." (Washington, Virginia & Maryland
Coach Co. v. National Labor Relations Board, 301 U. S. 142, 147,
57 S. Ct. 648, 650, 81 Law ed 965.) Substantial evidence is more
than a mere scintilla It means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion."
 
(Appalachian Electric Power v. National Labor Relations Board, 4
Cir., 93 F. 2d 985, 989; National Labor Relations Board v.
Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-stillwater
Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F. 2d 758,
760.) . . . The statute provides that 'the rules of evidence
prevailing in courts of law and equity shall not be controlling.' The
obvious purpose of this and similar provisions is to free
administrative boards from the compulsion of technical rules so
that the mere admission of matter which would be deemed
incompetent in judicial proceedings would not invalidate the
administrative order. (Interstate Commerce Commission v. Baird,
194 U. S. 25, 44, 24 S. Ct. 563, 568, 48 Law. ed. 860; Interstate
Commerce Commission v. Louisville & Nashville R. Co., 227 U. S.
88, 93, 33 S. Ct. 185, 187, 57 Law. ed. 431; United States v.
Abilene & Southern Ry. Co., 265 U. S. 274, 288, 44 S. Ct. 565, 569,
68 Law. ed. lola; Tagg Bros. & Moorhead v. United States, 280 U.
S. 420, 442, 50 S. Ct. 220, 225, 74 Law. ed. 624.) But this assurance
of a desirable flexibility in administrative procedure does not go
so far as to justify orders without a basis in evidence having
rational probative force. Mere uncorroborated hearsay or rumor
does not constitute substantial evidence. (Consolidated Edison Co.
v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4,
Adv. Op., p. 131.)"
 
(5) The decision must be rendered on the evidence presented at
the hearing, or at least contained in the record and disclosed to
the parties affected. (Interstate Commence Commission vs. L. & N.
R. Co., 227 U. S. 88, 33 S. Ct. 185, 57 Law. ed. 431.)Only by
confining the administrative tribunal to the evidence disclosed to
the parties, can the latter be protected in their right to know and
meet the case against them. It should not, however, detract from
their duty actively to see that the law is enforced, and for that
purpose, to use the authorized legal methods of securing
evidence and informing itself of facts material and relevant to the
controversy. Boards of inquiry may be appointed for the purpose
of investigating and determining the facts in any given case, but
their report and decision are only advisory. (Section 9,
Commonwealth Act No. 103.) The Court of Industrial Relations
may refer any industrial or agricultural dispute of any matter
under its consideration or advisement to a local board of inquiry,
a provincial fiscal, a justice of the peace or any public official in
any part of the Philippines for investigation, report and
recommendation, and may delegate to such board or public
official such powers and functions as the said Court of Industrial
Relations may deem necessary, but such delegation shall not
affect the exercise of the Court itself of any of its powers (Section
10, ibid.)
 
(6) The Court of Industrial Relations or any of its judges, therefore,
must act on its or his own independent consideration of the law
TROPANG POTCHI
and facts of the controversy, and not simply accept the views of a
subordinate in arriving at a decision. It may be that the volume of
work is such that it is literally impossible for the titular heads of
the Court of Industrial Relations personally to decide all
controversies coming before them. In the United States the
difficulty is solved with the enactment of statutory authority
authorizing examiners or other subordinates to render final
decision, with right to appeal to board or commission, but in our
case there is no such statutory authority.
 
(7) The Court of Industrial Relations should, in all controversial
questions, render its decision in such a manner that the parties to
the proceeding can know the vario issues involved, and the
reasons for the decisions rendered. The performance of this duty
is inseparable from the authority conferred upon it.
 
In the light of the foregoing fundamental principles, it is sufficient
to observe here that, except as to the alleged agreement between
the Ang Tibay and the National Workers' Brotherhood (appendix
A), the record is barren and does not satisfy the thirst for a factual
basis upon which to predicate, in a rational way, a conclusion of
law.
 
This result, however, does not now preclude the concession of a
new trial prayed for by the respondent National Labor Union, Inc.
In the portion of the petition hereinabove quoted of the National
Labor Union, Inc., it is alleged that "the supposed lack of leather
material claimed by Toribio Teodoro was but a scheme adopted to
systematically discharge all the members of the National Labor
Union, Inc., from work" and this averment is desired to be proved
by the petitioner with the "records of the Bureau of Customs and
the Books of Accounts of native dealers in leather"; that "the
National Workers' Brotherhood Union of Ang Tibay is a company
or employer union dominated by Toribio Teodoro, the existence
137
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

and functions of which are illegal." Petitioner further alleges
under oath that the exhibits attached to the petition to prove his
substantial averments "are so inaccessible to the respondents
that even with the exercise of due diligence they could not be
expected to have obtained them and offered as evidence in the
Court of Industrial Relations", and that the documents attached to
the petition "are of such far reaching importance and effect that
their admission would necessarily mean the modification and
petitioners, vs. HON. IGNACIO M. CAPULONG, Presiding Judge of
the RTC-Makati, Br. 134 ZOSIMO MENDOZA, JR. ERNEST
MONTECILLO, ADEL ABAS, JOSEPH LLEDO AMADO SABBAN,
DALMACIO LIM, JR., MANUEL ESCALONA and JUDE FERNANDEZ,
respondents.
G.R. No. 99327 | 1993-05-27
less a clear duty, on the part of the respondent to admit the
petitioner, the petition did not prosper. 
In support of its decision, the Court invoked academic freedom of
institutions of higher learning, as recognized by the Constitution,
the concept encompassing the right of a school to choose its
students. 

reversal of the judgment rendered therein." We have considered
the reply of Ang Tibay and its arguments against the petition. By
and large, after considerable discussion, we have come to the
conclusion that the interest of justice would be better served if
the movant is given opportunity to present at the hearing the
documents referred to in his motion and such other evidence as
may be relevant to the main issue involved. The legislation which
created the Court of Industrial Relations and under which it acts is
new. The failure to grasp the fundamental issue involved is not
entirely attributable to the parties adversely affected by the
result. Accordingly, the motion for a new trial should be, and the
same is hereby granted, and the entire record of this case shall be
remanded to the Court of Industrial Relations, with instruction
that it reopen the case, receive all such evidence as may be
relevant, and otherwise proceed in accordance with the
requirements set forth hereinabove. So ordered.
Eighteen (18) years later, the right of a University to refuse
admittance to its students, this time in Ateneo de Manila
University proper, is again challenged. 
Discussions citing this case are available.
Constitutional Law; Education, Science, Technology, Arts, Culture Whereas, in the Garcia case referred to in the opening paragraph,
and Sports; Academic Freedom  the individual concerned was not a regular student, the
Political Law; Constitutional Law; Bill of Rights; Due Process - right respondents in the case at bar, having been previously enrolled in
to life, liberty and property; Procedural and substantive due the University, seek re-admission. Moreover, in the earlier case,
process  the petitioner was refused admittance, not on such considerations
as personality traits and character orientation, or even inability to
D E C I S I O N  meet the institution's academic or intellectual standards, but
because of her behavior in the classroom. The school pointedly
informed her that ". . . it would seem to be in your best interest to
ROMERO, J.:  work with a Faculty that is more compatible with your
orientations." 
In 1975, the Court was confronted with a mandamus proceeding

 
Avancena, C.J., Villa-Real, Imperial, Diaz, Concepcion and Moran,
JJ., concur.
ATENEO DE MANILA UNIVERSITY, FATHER JOAQUIN BERNAS,
S.J., DEAN CYNTHIA ROXAS-DEL CASTILLO, JUDGE RUPERTO
KAPUNAN, JR., JUSTICE VENICIO ESCOLIN, FISCAL MIGUEL
ALBAR, ATTYS. MARCOS HERRAS, FERDINAND CASIS, JOSE
CLARO TESORO, RAMON CAGUIOA and RAMON ERENETA,
to compel the Faculty Admission Committee of the Loyola School
of Theology, a religious seminary which has a working
arrangement with the Ateneo de Manila University regarding
accreditation of common students, to allow petitioner who had
taken some courses therein for credit during summer, to continue
her studies. 1 Squarely meeting the issue, we dismissed the
petition on the ground that students in the position of petitioner
possess, not a right, but a privilege, to be admitted to the
institution. Not having satisfied the prime and indispensable
requisite of a mandamus proceeding since there is no duty, much
On the other hand, students who are now being refused
admission into petitioner University have been found guilty of
violating Rule No. 3 of the Ateneo Law School Rules on Discipline
which prohibits participation in hazing activities. The case
attracted much publicity due to the death of one of the neophytes
and serious physical injuries inflicted on another. 
Herein lies an opportunity for the Court to add another dimension
to the concept of academic freedom of institutions of higher
learning, this time a case fraught with social and emotional
138
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

overtones.  postpone the hearing from February 28, 1991 to March 1, 1991. 7 
Respondent students were then required to file their written
The facts which gave rise to this case which is far from novel, are answers to the formal charge on or before February 18, 1991; Subsequently, respondent students were directed to appear on
as follows:  otherwise, they would be deemed to have waived their right to March 2, 1991 for clarificatory questions. 8 They were also
present their defenses.  informed that: 
As a requisite to membership, the Aquila Legis, a fraternity
organized in the Ateneo Law School, held its initiation rites on On February 20, 1991, petitioner Dean created a Disciplinary a) The proceedings will be summary in nature in accordance with
February 8, 9 and 10, 1991, for students interested in joining its Board composed of petitioners Judge Ruperto Kapunan, Justice the rules laid down in the case of Guzman vs. National University;
ranks. As a result of such initiation rites, Leonardo "Lennie" H. Venicio Escolin, Atty. Marcos Herras, Fiscal Miguel Albar and Atty. 9 
Villa, a first year student of petitioner university, died of serious Ferdinand Casis, to hear the charges against respondent
physical injuries at the Chinese General Hospital on February 10, students.  b) Petitioners have no right to cross-examine the affiants-
1991. He was not the lone victim, though, for another freshman neophytes; 
by the name of Bienvenido Marquez was also hospitalized at the In a letter dated February 20, 1991, respondent students were
Capitol Medical Center for acute renal failure occasioned by the informed that they had violated Rule No. 3 of the Rules on c) Hazing which is not defined in the School catalogue shall be
serious physical injuries inflicted upon him on the same occasion.  Discipline contained in the Law School Catalogue. Said letter also defined in accordance with the proposed bill of Sen. Jose Lina,
states: "The complaint/charge against you arose from Senate Bill No. 3815; 
In a notice dated February 11, 1991, petitioner Dean Cynthia del participation in acts of hazing committed during the Aquila Legis
Castillo created a Joint Administration-Faculty-Student initiations held on February 8-10, 1991. The evidence against you d) The Board will take into consideration the degree of
Investigating Committee 2 which was tasked to investigate and consist of testimonies of students, showing your participation in participation of the petitioners in the alleged hazing incident in
submit a report within 72 hours on the circumstances surrounding acts prohibited by the School regulations." Finally, it ordered imposing the penalty; 
the death of Lennie Villa. Said notice also required respondent respondent students to file their written answers to the above
students to submit their written statements within twenty-four charge on or before February 22, 1991, otherwise they would be e) The Decision of the Board shall be appealable to the President
(24) hours from receipt. Although respondent students received a deemed to have waive their defense. 5  of the University, i.e. Respondent Joaquin Bernas S. J. 
copy of the written notice, they failed to file a reply. In the
meantime, they were placed on preventive suspension. 3 Through In a motion dated February 21, 1991, respondent students, On March 5, 1991, petitioner Bernas wrote Dean del Castillo that,
their respective counsels, they requested copies of the charges through counsel, requested that the investigation against them be "in cases where the Disciplinary Board is not prepared to impose
and pertinent documents or affidavits.  held in abeyance, pending action on their request for copies of the penalty of dismissal, I would prefer that the Board leave the
the evidence against them. 6  decision on the penalty to the Administration so that this case be
In a notice dated February 14, 1991, the Joint Administration- decided not just on the Law School level but also on the University
Faculty-Student Investigating Committee, after receiving the Respondent students were then directed by the Board to appear level." 10 
written statements and hearing the testimonies of several before it at a hearing on February 28, 1991 to clarify their answers
witnesses, found a prima facie case against respondent students with regard to the charges filed by the investigating committee for In a resolution dated March 9, 1991, the Board found respondent
for violation of Rule 3 of the Law School Catalogue entitled violation of Rule No. 3. However, in a letter to petitioners dated students guilty of violating Rule No. 3 of the Ateneo Law School
"Discipline." 4  February 27, 1991, counsel for respondent students moved to Rules on Discipline which prohibits participation in hazing
139
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
activities. The Board found that respondent students acted as
master auxiliaries or "auxies" during the initiation rites of Aquila
Legis, and exercised the "auxies privilege," which allows them to
participate in the physical hazing. Although respondent students
claim that they were there to assist and attend to the needs of the
neophytes, actually they were assigned a definite supportive role
to play in the organized activity. Their guilt was heightened by the
fact that they made no effort to prevent the infliction of further
physical punishment on the neophytes under their care. The
Board considered respondent students part and parcel of the
integral process of hazing. In conclusion, the Board pronounced
respondents guilty of hazing, either by active participation or
through acquiescence. However, in view of the lack of unanimity
among the members of the Board on the penalty of dismissal, the
Board left the imposition of the penalty to the University
Administration. 11 Petitioner Dean del Castillo waived her
prerogative to review the decision of the Board and left to the
President of the University the decision of whether to expel
respondent students or not.  centered on the alleged lack of due process in their dismissal.  1991. 18
Consequently, in a resolution dated March 10, 1991, petitioner Fr.
Joaquin G. Bernas, as President of the Ateneo de Manila
University, accepted the factual findings of the Board, thus: "that
as Master Auxiliaries they exercised the 'auxie's privilege;' that
even assuming that they did not lay hands on the neophytes,"
respondent students are still guilty in accordance with the
principle that "where two or more persons act together in the
commission of a crime, whether they act through the physical
volition of one or of all, proceeding severally or collectively, each
individual whose will contributes to the wrongdoing is responsible
for the whole." Fr. Bernas, in describing the offense which led to
the death of Leonardo Villa, concluded that the "offense of the
respondents can be characterized as grave and serious, subversive
of the goals of Christian education and contrary to civilized
TROPANG POTCHI
behavior." Accordingly, he imposed the penalty of dismissal on all Respondent students reacted immediately by filing a
respondent students. 12  Supplemental Petition of certiorari, prohibition and mandamus
with prayer for a temporary restraining order and preliminary
In a resolution dated March 18, 1991 and concurred in by injunction, to include the aforesaid members of the Special Board,
petitioner Fr. Bernas, 13 the Board excluded respondent students as additional respondents to the original petition. 16 
Abas and Mendoza from the coverage of the resolution of March
10, 1991, inasmuch as at the time the latter resolution was Petitioners moved to strike out the Supplemental Petition arguing
promulgated, neither had as yet submitted their case to the that the creation of the Special Board was totally unrelated to the
Board. Said resolution also set the investigation of the two original petition which alleged lack of due process in the conduct
students on March 21, 1991.  of investigations by the Disciplinary Board against respondent
students; that a supplemental petition cannot be admitted
On March 18, 1991, respondent students filed with the Regional without the same being set for hearing and that the supplemental
Trial Court of Makati, a petition for certiorari, prohibition and petition for the issuance of a temporary restraining order will, in
mandamus with prayer for temporary restraining order and effect, extend the previous restraining order beyond its
preliminary injunction 14 alleging that they were currently mandatory 20-day lifetime. 17 Acting on the urgent motion to
enrolled as students for the second semester of schoolyear 1990- admit the supplemental petition with prayer for a temporary
91. Unless a temporary restraining order is issued, they would be restraining order, Judge Amin, as pairing judge of respondent
prevented from taking their examinations. The petition principally Judge Capulong, granted respondent students' prayer on April 10,
 
On the same day, Judge Madayag issued a temporary restraining On May 17, 1991, respondent Judge ordered petitioners to
order enjoining petitioners from dismissing respondent students reinstate respondent students. Simultaneously, the court ordered
and stopping the former from conducting hearings relative to the petitioners to conduct special examinations in lieu of the final
hazing incident. 15  examinations which allegedly the students were not allowed to
take, and enjoined them to maintain the status quo with regard to
Hearings in connection with the issuance of the temporary the cases of Adel Abas and Zosimo Mendoza pending final
restraining order were then held. On April 7, 1991, the temporary determination of the issues of the instant case. Lastly, it directed
restraining order issued on March 18, 1991 lapsed. Consequently, respondent students to file a bond in the amount of P50,000.00.
a day after the expiration of the temporary restraining order, 19 
Dean del Castillo created a Special Board composed of Atty.(s)
Jose Claro Tesoro, Ramon Caguioa, and Ramon Ereñeta to On the same date, May 17, 1991, the Special Board investigating
investigate the charges of hazing against respondent students petitioners Abas and Mendoza concluded its investigation. On
Abas and Mendoza.  May 20, 1991, it imposed the penalty of dismissal on respondent
students Adel Abas and Zosimo Mendoza and directed the
140
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

dropping of their names from its roll of students. 20  cases of Guzman v. National University, 22 Alcuaz v PSBA, Q.C.
Branch 23 and Non v. Dames II 24 have been meticulously Indubitably, the nature and cause of the accusation were
The following day or on May 21, 1991, respondent judge issued respected by petitioners in the various investigative proceedings adequately spelled out in petitioners' notices dated February 14
the writ of preliminary injunction upon posting by respondent held before they were expelled.  and 20, 1991. 30 It is to be noted that the February 20, 1991 letter
students of a bond dated May 17, 1991 in the amount of which quoted Rule No. 3 of its Rules of Discipline as contained in
P50,000.00.  Corollary to their contention of denial of due process is their the Ateneo Law School Catalogue was addressed individually to
argument that it is the Ang Tibay case 25 and not the Guzman respondent students. Petitioners' notices/letters dated February
Hence, this special civil action of certiorari under Rule 65 with case which is applicable in the case at bar. Though both cases 11, February 14 and 20 clearly show that respondent students
prayer for the issuance of a temporary restraining order essentially deal with the requirements of due process, the were given ample opportunity to adduce evidence in their behalf
questioning the order of respondent judge reinstating respondent Guzman case is more apropos to the instant case, since the latter and to answer the charges leveled against them. 
students dated May 17, 1991. On May 30, 1991, this Court issued deals specifically with the minimum standards to be satisfied in
a temporary restraining order enjoining the enforcement of the the imposition of disciplinary sanctions in academic institutions, The requisite assistance of counsel was met when, from the very
May 17, 1991 order of respondent judge. 21  such as petitioner university herein, thus:  start of the investigations before the Joint Administration-Faculty-
Student Committee, the law firm of Gonzales Batiller and Bilog
In the case at bar, we come to grips with two relevant issues on "(1) the students must be informed in writing of the nature and and Associates put in its appearance and filed pleadings in behalf
academic freedom, namely: (1) whether a school is within its cause of any accusation against them; (2) that they shall have the of respondent students. 
rights in expelling students from its academic community right to answer the charges against them with the assistance of
pursuant to its disciplinary rules and moral standards; and (2) counsel, if desired; (3) they shall be informed of the evidence Respondent students may not use the argument that since they
whether or not the penalty imposed by the school administration against them; (4) they shall have the right to adduce evidence in were not accorded the opportunity to see and examine the
is proper under the circumstances.  their own behalf; and (5) the evidence must be duly considered by written statements which became the basis of petitioners'
the investigating committee or official designated by the school February 14, 1991 order, they were denied procedural due
We grant the petition and reverse the order of respondent judge authorities to hear and decide the case." 26  process. 31 Granting that they were denied such opportunity, the
ordering readmission of respondent students. Respondent judge same may not be said to detract from the observance of due
committed grave abuse of discretion when he ruled that It cannot seriously be asserted that the above requirements were process, for disciplinary cases involving students need not
respondent students had been denied due process in the not met. When, in view of the death of Leonardo Villa, petitioner necessarily include the right to cross examination. An
investigation of the charges against them.  Cynthia del Castillo, as Dean of the Ateneo Law School, notified administrative proceeding conducted to investigate students'
and required respondent students on February 11, 1991 to submit participation in a hazing activity need not be clothed with the
It is the threshold argument of respondent students that the within twenty-four hours their written statement on the incident, attributes of a judicial proceeding. A closer examination of the
decision of petitioner Fr. Joaquin Bernas, S. J., then President of 27 the records show that instead of filing a reply, respondent March 2, 1991 hearing which characterized the rules on the
the Ateneo de Manila University, to expel them was arrived at students requested through their counsel, copies of the charges. investigation as being summary in nature and that respondent
without affording them their right to procedural due process. We 28 While some of the students mentioned in the February 11, students have no right to examine affiants-neophytes, reveals that
are constrained to disagree as we find no indication that such 1991 notice duly submitted written statements, the others failed this is but a reiteration of our previous ruling in Alcuaz. 32 
right has been violated. On the contrary, respondent students' to do so. Thus, the latter were granted an extension of up to
rights in a school disciplinary proceeding, as enunciated in the February 18, 1991 to file their statements. 29  Respondent students' contention that the investigating
141
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
committee failed to consider their evidence is far from the truth
because the February 14, 1992 order clearly states that it was
reached only after receiving the written statements and hearing
the testimonies of several witnesses. 33 Similarly, the Disciplinary
Board's resolution dated March 10, 1991 was preceded by a
hearing on March 2, 1991 wherein respondent students were
summoned to answer clarificatory questions.  himself a respected place in the annals of history as a martyr to
With regard to the charge of hazing, respondent students fault
petitioners for not explicitly defining the word "hazing" and allege
that there is no proof that they were furnished copies of the
1990-91 Ateneo Law School Catalogue which prohibits hazing.
Such flawed sophistry is not worthy of students who aspire to be
future members of the Bar. It cannot be over-emphasized that the
charge filed before the Joint Administration-Faculty-Student
Investigating Committee and the Disciplinary Board is not a
criminal case requiring proof beyond reasonable doubt but is
merely administrative in character. As such, it is not subject to the
rigorous requirements of criminal due process, particularly with
respect to the specification of the charge involved. As we have
had occasion to declare in previous cases of a similar nature, due
process in disciplinary cases involving students does not entail
proceedings and hearings identical to those prescribed for actions
and proceedings in courts of justice. 34 Accordingly, disciplinary
charges against a student need not be drawn with the precision of
a criminal information or complaint. Having given prior notice to
the students involved that "hazing" which is not defined in the
School Catalogue shall be defined in accordance with Senate Bill
No. 3815, the proposed bill on the subject of Sen. Jose Lina,
petitioners have said what needs to be said. We deem this
sufficient for purposes of the investigation under scrutiny.  and the present 1987 Constitutions.  are all in battle array and have persuasive tongues, they have
Hazing, as a ground for disciplining a student, to the extent of
dismissal or expulsion, finds its raison d' etre in the increasing
TROPANG POTCHI
frequency of injury, even death, inflicted upon the neophytes by freedom" cited in the case of Sweezy v. New Hampshire, 37 thus:
their insensate "masters." Assuredly, it passes the test of (1) who may teach; (2) what may be taught; (3) how it shall be
reasonableness and absence of malice on the part of the school taught; and (4) who may be admitted to study. 
authorities. Far from fostering comradeship and esprit d' corps, it
has merely fed upon the cruel and baser instincts of those who Socrates, the "first of the great moralists of Greece," proud to
aspire to eventual leadership in our country.  claim the title "gadfly of the State," has deservedly earned for
Respondent students argue that petitioners are not in a position the cause of free intellectual inquiry. To Plato, this great teacher
to file the instant petition under Rule 65 considering that they of his was the "best, the most sensible, and the most just man of
failed to file a motion for reconsideration first before the trial his age." In 399 B.C., he willingly quaffed the goblet of hemlock as
court, thereby bypassing the latter and the Court of Appeals. 35  punishment for alleged "corruption" of the youth of Athens. He
describes in his own words how this charge of "corruption," the
It is accepted legal doctrine that an exception to the doctrine of forerunner of the concept of academic freedom, came about: 
exhaustion of remedies is when the case involves a question of
law, 36 as in this case, where the issue is whether or not "Young men of the richer classes, who have not much to do, come
respondent students have been afforded procedural due process about me of their own accord: they like to hear the pretenders
prior to their dismissal from petitioner university.  examined, and they often imitate me, and examine others
themselves; there are plenty of persons, as they soon discover,
Lastly, respondent students argue that we erred in issuing a who think that they know something, but really know little or
Temporary Restraining Order since petitioners do not stand to nothing; and then those who are examined by them, instead of
suffer irreparable damage in the event that private respondents being angry with themselves are angry with me. This confounded
are allowed to re-enroll. No one can be so myopic as to doubt that Socrates, they say; this villainous misleader of youth. And then if
the immediate reinstatement of respondent students who have somebody asks them, Why, what evil does he practice or teach?
been investigated and found by the Disciplinary Board to have they do not know, and cannot tell; but in order that they may not
violated petitioner university's disciplinary rules and standards will appear to be at a loss, they repeat the ready-made charges which
certainly undermine the authority of the administration of the are used against all philosophers about teaching things up in the
school. This we would be most loathe to do.  clouds and under the earth, and having no gods, and making the
worse appear the better cause; for they do not like to confess that
More importantly, it will seriously impair petitioner university's their pretense of knowledge has been detected -- which is the
academic freedom which has been enshrined in the 1935, 1973 truth; and as they are numerous and ambitious and energetic, and
filled your ears with their loud and inveterate calumnies." 38 
At this juncture, it would be meet to recall the essential freedoms
subsumed by Justice Felix Frankfurter in the term "academic Since Socrates, numberless individuals of the same heroic mold
142
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
have similarly defied the stifling strictures of authority, whether
State, Church, or various interest groups, to be able to give free
rein to their ideas. Particularly odious were the insidious and
blatant attempts at thought control during the time of the
Inquisition until even the Medieval universities, renowned as
intellectual centers in Europe, gradually lost their autonomy.  controls or pressure. In the Frankfurter formulation, this is
In time, such noble strivings, gathering libertarian encrustations
along the way, were gradually crystallized in the cluster of
freedoms which awaited the champions and martyrs of the
dawning modern age. This was exemplified by the professors of
the new German universities in the 16th and 17th centuries such
as the Universities of Leiden (1575), Helmstadt (1574) and
Heidelberg (1652). The movement back to freedom of inquiry
gained adherents among the exponents of fundamental human
rights of the 19th and 20th centuries. "Academic freedom", the
term as it evolved to describe the emerging rights related to
intellectual liberty, has traditionally been associated with freedom
of thought, speech, expression and the press; in other words, with
the right of individuals in university communities, such as
professors, researchers and administrators, to investigate, pursue,
discuss and, in the immortal words of Socrates, "to follow the
argument wherever it may lead," free from internal and external
interference or pressure.  institution at the expense of the rest.  Azcuna replied: "Yes."
But obviously, its optimum impact is best realized where the
freedom is exercised judiciously and does not degenerate into
unbridled license. Early cases on this individual aspect of
academic freedom have stressed the need for assuring to such
individuals a measure of independence through the guarantees of
autonomy and security of tenure. The components of this aspect
of academic freedom have been categorized under the areas of:
(1) who may teach and (2) how to teach.  freedom of a university professor." 39  subject, as all rights are, to the established academic and
It is to be realized that this individual aspect of academic freedom
could have developed only pari passu with its institutional
counterpart. As corporate entities, educational institutions of
higher learning are inherently endowed with the right to establish
their policies, academic and otherwise, unhampered by external
articulated in the areas of: (1) what shall be taught, e.g., the
curriculum and (2) who may be admitted to study.  previous two (2) Constitutions, as found in Article XIV, Section 5
In the Philippines, the Acts which were passed with the change of
sovereignty from the Spanish to the American government,
namely, the Philippine Bill of 1902 and the Philippine Autonomy
Act of 1916 made no mention of the rights now subsumed under
the catch-all term of "academic freedom." This is most especially
true with respect to the institutional aspect of the term. It had to
await the drafting of the Philippine Constitutions to be recognized
as deserving of legal protection. 
The breakthrough for the concept itself was found in Section 5 of
the 1935 Constitution which stated: "Universities established by
the State shall enjoy academic freedom." The only State university
at that time, being the University of the Philippines, the Charter
was perceived by some as exhibiting rank favoritism for the said
In an attempt to broaden the coverage of the provision, the 1973
Constitution provided in its Section 8 (2): "All institutions of higher
learning shall enjoy academic freedom." In his interpretation of
the provision, former U.P. President Vicente G. Sinco, who was
also a delegate to the 1971 Constitutional Convention, declared
that it "definitely grants the right of academic freedom to the
University as an institution as distinguished from the academic
TROPANG POTCHI
Has the right been carried over to the present Constitution? In an
attempt to give an explicit definition with an expanded coverage,
the Commissioners of the Constitutional Commission of 1986
came up with this formulation: "Academic freedom shall be
enjoyed by students, by teachers, and by researchers." After
protracted debate and ringing speeches, the final version which
was none too different from the way it was couched in the
(2) states: "Academic freedom shall be enjoyed in all institutions
of higher learning." In anticipation of the question as to whether
and what aspects of academic freedom are included herein,
ConCom Commissioner Adolfo S. Azcuna explained: "Since
academic freedom is a dynamic concept, we want to expand the
frontiers of freedom, especially in education, therefore, we shall
leave it to the courts to develop further the parameters of
academic freedom." 40 
More to the point, Commissioner Jose Luis Martin C. Gascon
asked: "When we speak of the sentence 'academic freedom shall
be enjoyed in all institutions of higher learning,' do we mean that
academic freedom shall be enjoyed by the institution itself?"
Azcuna replied: "Not only that, it also includes . . ." Gascon
finished off the broken thought, -- "the faculty and the students."
Since Garcia v. Loyola School of Theology, 41 we have consistently
upheld the salutary proposition that admission to an institution of
higher learning is discretionary upon a school, the same being a
privilege on the part of the student rather than a right. While
under the Education Act of 1982, students have a right "to freely
choose their field of study, subject to existing curricula and to
continue their course therein up to graduation," such right is
disciplinary standards laid down by the academic institution. 42 
143
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

In essence, education must ultimately be religious -- not in the upon those whom ironically they would claim as "brothers" after
"For private schools have the right to establish reasonable rules sense that the founders or charter members of the institution are the initiation rites, how can we countenance the imposition of
and regulations for the admission, discipline and promotion of sectarian or profess a religious ideology. Rather, a religious such nominal penalties as reprimand or even suspension? We,
students. This right . . . extends as well to parents . . . as parents education, as the renowned philosopher Alfred North Whitehead therefore, affirm petitioners' imposition of the penalty of
are under a social and moral (if not legal) obligation, individually said, is "an education which inculcates duty and reverence." 45 It dismissal upon respondent students. This finds authority and
and collectively, to assist and cooperate with the schools." 43  appears that the particular brand of religious education offered by justification in Section 146 of the Manual of Regulations for
the Ateneo de Manila University has been lost on the respondent Private Schools. 48 
Such rules are "incident to the very object of incorporation and students. 
indispensable to the successful management of the college. The WHEREFORE, the instant petition is GRANTED; the order of
rules may include those governing student discipline." 44 Going a Certainly, they do not deserve to claim such a venerable respondent Judge dated May 17, 1991 reinstating respondent
step further, the establishment of rules governing university- institution as the Ateneo de Manila University as their own a students into petitioner university is hereby REVERSED. The
student relations, particularly those pertaining to student minute longer, for they may foreseeably cast a malevolent resolution of petitioner Joaquin Bernas S. J., then President of
discipline, may be regarded as vital, not merely to the smooth and influence on the students currently enrolled, as well as those who Ateneo de Manila University dated March 10, 1991, is
efficient operation of the institution, but to its very survival.  come after them.  REINSTATED and the decision of the Special Board DISMISSING
respondent students ADEL ABAS and ZOSIMO MENDOZA dated
Within memory of the current generation is the eruption of Quite applicable to this case is our pronouncement in Yap Chin May 20, 1991 is hereby AFFIRMED. 
militancy in the academic groves as collectively, the students Fah v. Court of Appeals that: "The maintenance of a morally
demanded and plucked for themselves from the panoply of conducive and orderly educational environment will be seriously SO ORDERED. 
academic freedom their own rights encapsulized under the rubric imperilled if, under the circumstances of this case, Grace Christian
of "right to education" forgetting that, in Hohfeldian terms, they is forced to admit petitioner's children and to reintegrate them to Narvasa (C.J.), Feliciano, Padilla, Bidin, Regalado, Davide, Jr.,
have a concomitant duty, and that is, their duty to learn under the the student body." 46 Thus, the decision of petitioner university Nocon, Bellosillo, Melo and Quiason, JJ., concur. 
rules laid down by the school.  to expel them is but congruent with the gravity of their misdeeds. Griño Aquino, J., is on leave. 
That there must be such a congruence between the offense
Considering that respondent students are proud to claim as their committed and the sanction imposed was stressed in Malabanan Cruz, J., concur in the result. I do not join in the statements in the
own a Christian school that includes Theology as part of its v. Ramento. 47  ponencia which seem to me to be a prejudgment of the criminal
curriculum and assiduously strives to turn out individuals of cases against the private respondents for the death of Lenny
unimpeachable morals and integrity in the mold of the founder of Having carefully reviewed the records and the procedure followed Villa. 
the order of the Society of Jesus, St. Ignatius of Loyola, and their by petitioner university, we see no reason to reverse its decision
God-fearing forbears, their barbaric and ruthless acts are the founded on the following undisputed facts: that on February 8, 9
more reprehensible. It must be borne in mind that universities are and 10, 1991, the Aquila Legis Fraternity conducted hazing
Republic of the Philippines
established, not merely to develop the intellect and skills of the activities; that respondent students were present at the hazing as SUPREME COURT
Manila
studentry, but to inculcate lofty values, ideals and attitudes; nay, auxiliaries, and that as a result of the hazing, Leonardo Villa died
the development, or flowering if you will, of the total man.  from serious physical injuries, while Bienvenido Marquez was EN BANC
hospitalized. In light of the vicious acts of respondent students
144
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
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
prisioncorreccional 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 prisioncorreccional 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         hanexpuesto en el cuerpo de estaresolucion, quehacen al
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
TROPANG POTCHI
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 "laspruebas no
hanestablecido de unamaneraconcluyente la culpabilidad del
peticionario y quetodos los hechosprobados no son inconsistentes
o incongrentes con suinocencia" and concludes that the herein
respondent Mariano Cu Unjieng "esinocentepordudaracional" 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 esteJuzgadoconcediera la
poblacionsolicitadaporlascircunstancias y la historia social que se
peticionarioacreedor de la misma, una parte de la opinion publica,
atizadapor los recelos y lassuspicacias, podrialevantarseindignada
contra un sistema de probacionquepermiteatisbar en los
procedimientosordinarios de unacausa criminal perturbando la
quietud y la eficacia de lasdecisionesyarecaidas al traer a la
superficieconclusionesenteramentedifferentes, en menoscabo del
interespublicoquedemanda el respeto de lasleyes 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.
145
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
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.
TROPANG POTCHI
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:
146
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
(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 motuproprio 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.
TROPANG POTCHI
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 lismota 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 inmandamus 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
147
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
of quo warranto brought in the name of the Government of the
Philippines. It has also been held that the constitutionality of a
statute may be questioned in habeas corpus proceedings (12 C. J.,
p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although
there are authorities to the contrary; on an application for
injunction to restrain action under the challenged statute
(mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234); and
even on an application for preliminary injunction where the
determination of the constitutional question is necessary to a
decision of the case. (12 C. J., p. 783.) The same may be said as
regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad
[1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell
vs. First Judicial District Court [1905], 28 Nev., 280; 81 Pac., 875;
113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases
cited). The case of Yu Cong Eng vs. Trinidad, supra, decided by this
court twelve years ago was, like the present one, an original
action forcertiorari and prohibition. The constitutionality of Act
No. 2972, popularly known as the Chinese Bookkeeping Law, was
there challenged by the petitioners, and the constitutional issue
was not met squarely by the respondent in a demurrer. A point
was raised "relating to the propriety of the constitutional question
being decided in original proceedings in prohibition." This court
decided to take up the constitutional question and, with two
justices dissenting, held that Act No. 2972 was constitutional. The
case was elevated on writ of certiorari to the Supreme Court of
the United States which reversed the judgment of this court and
held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.)
On the question of jurisdiction, however, the Federal Supreme
Court, though its Chief Justice, said:
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
TROPANG POTCHI
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
148
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
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 motuproprio 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,
TROPANG POTCHI
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
149
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
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
TROPANG POTCHI
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
150
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
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.
TROPANG POTCHI
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
151
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
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.  States; in plain and unequivocal language, pointed to Congress as
". . . 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,
TROPANG POTCHI
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
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
152
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
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.
TROPANG POTCHI
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
153
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
suspension, on such terms as the court may determine, was held
constitutional and as not giving the court a power in violation of
the constitutional provision vesting the pardoning power in the
chief executive of the state. (Vide, also, Re Giannini [1912], 18 Cal
App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the
same. They are actually district and different from each other,
both in origin and in nature. In People ex rel. Forsyth vs. Court of
Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A.,
856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York
said:
. . . The power to suspend sentence and the power to grant
reprieves and pardons, as understood when the constitution was
adopted, are totally distinct and different in their nature. The
former was always a part of the judicial power; the latter was
always a part of the executive power. The suspension of the
sentence simply postpones the judgment of the court temporarily
or indefinitely, but the conviction and liability following it, and the
civil disabilities, remain and become operative when judgment is
rendered. A pardon reaches both the punishment prescribed for
the offense and the guilt of the offender. It releases the
punishment, and blots out of existence the guilt, so that in the eye
of the law, the offender is as innocent as if he had never
committed the offense. It removes the penalties and disabilities,
and restores him to all his civil rights. It makes him, as it were, a
new man, and gives him a new credit and capacity. (Ex
parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs.
Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95
U. S., 149; 24 Law. ed., 442.)
The framers of the federal and the state constitutions were
perfectly familiar with the principles governing the power to grant
pardons, and it was conferred by these instruments upon the
executive with full knowledge of the law upon the subject, and
the words of the constitution were used to express the authority
formerly exercised by the English crown, or by its representatives
in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law.
ed., 421.) As this power was understood, it did not comprehend
any part of the judicial functions to suspend sentence, and it was
never intended that the authority to grant reprieves and pardons
should abrogate, or in any degree restrict, the exercise of that
power in regard to its own judgments, that criminal courts has so
long maintained. The two powers, so distinct and different in their
nature and character, were still left separate and distinct, the one
to be exercised by the executive, and the other by the judicial
department. We therefore conclude that a statute which, in
terms, authorizes courts of criminal jurisdiction to suspend
sentence in certain cases after conviction, — a power inherent in
such courts at common law, which was understood when the
constitution was adopted to be an ordinary judicial function, and
which, ever since its adoption, has been exercised of legislative
power under the constitution. It does not encroach, in any just
sense, upon the powers of the executive, as they have been
understood and practiced from the earliest times. (Quoted with
approval in Directors of Prisons vs. Judge of First Instance of
Cavite [1915], 29 Phil., 265, Carson, J., concurring, at pp. 294,
295.)
In probation, the probationer is in no true sense, as in pardon, a
free man. He is not finally and completely exonerated. He is not
exempt from the entire punishment which the law inflicts. Under
the Probation Act, the probationer's case is not terminated by the
mere fact that he is placed on probation. Section 4 of the Act
provides that the probation may be definitely terminated and the
probationer finally discharged from supervision only after the
period of probation shall have been terminated and the probation
officer shall have submitted a report, and the court shall have
found that the probationer has complied with the conditions of
probation. The probationer, then, during the period of probation,
remains in legal custody — subject to the control of the probation
officer and of the court; and, he may be rearrested upon the non-
fulfillment of the conditions of probation and, when rearrested,
may be committed to prison to serve the sentence originally
imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not
complete liberty, and may be far from it. It is really a new mode of
punishment, to be applied by the judge in a proper case, in
substitution of the imprisonment and find prescribed by the
criminal laws. For this reason its application is as purely a judicial
act as any other sentence carrying out the law deemed applicable
to the offense. The executive act of pardon, on the contrary, is
against the criminal law, which binds and directs the judges, or
rather is outside of and above it. There is thus no conflict with the
pardoning power, and no possible unconstitutionality of the
Probation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d],
567, 569.)
Probation should also be distinguished from reprieve and from
commutation of the sentence. Snodgrass vs. State ([1912], 67 Tex.
Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied
upon most strongly by the petitioners as authority in support of
their contention that the power to grant pardons and reprieves,
having been vested exclusively upon the Chief Executive by the
Jones Law, may not be conferred by the legislature upon the
courts by means of probation law authorizing the indefinite
judicial suspension of sentence. We have examined that case and
found that although the Court of Criminal Appeals of Texas held
that the probation statute of the state in terms conferred on the
district courts the power to grant pardons to persons convicted of
crime, it also distinguished between suspensions sentence on the
one hand, and reprieve and commutation of sentence on the
other. Said the court, through Harper, J.:
TROPANG POTCHI
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.)
154
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
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],  but a duty to be performed by the delegate by the instrumentality
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 potestasdelegata non delegarepotest. 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
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
TROPANG POTCHI
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
Tabacosvs. 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
155
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
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 re Village of North Milwaukee [1896], 93 Wis., 616;
97 N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120;
108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct.,
495; 36 Law.ed., 294.) Notwithstanding the apparent tendency,
however, to relax the rule prohibiting delegation of legislative
authority on account of the complexity arising from social and
economic forces at work in this modern industrial age (Pfiffner,
Public Administration [1936] ch. XX; Laski, "The Mother of
Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-
579; Beard, "Squirt-Gun Politics", in Harper's Monthly Magazine,
July, 1930, Vol. CLXI, pp. 147, 152), the orthodox pronouncement
of Judge Cooley in his work on Constitutional Limitations finds
restatement in Prof. Willoughby's treatise on the Constitution of
the United States in the following language — speaking of
declaration of legislative power to administrative agencies: "The
principle which permits the legislature to provide that the
TROPANG POTCHI
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
156
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
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
TROPANG POTCHI
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.
157
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
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." (YickWo 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, YickWo 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; YickWo 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
TROPANG POTCHI
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.
158
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
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
TROPANG POTCHI
(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
159
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
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, reddendosingulasingulis, 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
TROPANG POTCHI
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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7995             May 31, 1957
LAO H. ICHONG, in his own behalf and in behalf of other alien
residents, corporations and partnerships adversely affected. by
Republic Act No. 1180, petitioner, 
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO
SARMIENTO, City Treasurer of Manila,respondents.
160
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and
Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor
Pacifico P. de Castro for respondent Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S.
Serrano for respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, J.:
I. The case and issue, in general
This Court has before it the delicate task of passing upon the
validity and constitutionality of a legislative enactment,
fundamental and far-reaching in significance. The enactment
poses questions of due process, police power and equal
protection of the laws. It also poses an important issue of fact,
that is whether the conditions which the disputed law purports to
remedy really or actually exist. Admittedly springing from a deep,
militant, and positive nationalistic impulse, the law purports to
protect citizen and country from the alien retailer. Through it, and
within the field of economy it regulates, Congress attempts to
translate national aspirations for economic independence and
national security, rooted in the drive and urge for national survival
and welfare, into a concrete and tangible measures designed to
free the national retailer from the competing dominance of the
alien, so that the country and the nation may be free from a
supposed economic dependence and bondage. Do the facts and
circumstances justify the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail
Business." In effect it nationalizes the retail trade business. The
main provisions of the Act are: (1) a prohibition against persons,
not citizens of the Philippines, and against associations,
partnerships, or corporations the capital of which are not wholly
owned by citizens of the Philippines, from engaging directly or
indirectly in the retail trade; (2) an exception from the above
prohibition in favor of aliens actually engaged in said business on
May 15, 1954, who are allowed to continue to engaged therein,
unless their licenses are forfeited in accordance with the law, until
their death or voluntary retirement in case of natural persons,
and for ten years after the approval of the Act or until the
expiration of term in case of juridical persons; (3) an exception
therefrom in favor of citizens and juridical entities of the United
States; (4) a provision for the forfeiture of licenses (to engage in
the retail business) for violation of the laws on nationalization,
control weights and measures and labor and other laws relating to
trade, commerce and industry; (5) a prohibition against the
TROPANG POTCHI
establishment or opening by aliens actually engaged in the retail ultimate issue involved, it would be well to bear in mind certain
business of additional stores or branches of retail business, (6) a basic and fundamental, albeit preliminary, considerations in the
provision requiring aliens actually engaged in the retail business determination of the ever recurrent conflict between police
to present for registration with the proper authorities a verified power and the guarantees of due process and equal protection of
statement concerning their businesses, giving, among other the laws. What is the scope of police power, and how are the due
matters, the nature of the business, their assets and liabilities and process and equal protection clauses related to it? What is the
their offices and principal offices of judicial entities; and (7) a province and power of the legislature, and what is the function
provision allowing the heirs of aliens now engaged in the retail and duty of the courts? These consideration must be clearly and
business who die, to continue such business for a period of six correctly understood that their application to the facts of the case
months for purposes of liquidation. may be brought forth with clarity and the issue accordingly
resolved.
III. Grounds upon which petition is based-Answer thereto
It has been said the police power is so far - reaching in scope, that
it has become almost impossible to limit its sweep. As it derives its
Petitioner, for and in his own behalf and on behalf of other alien
existence from the very existence of the State itself, it does not
residents corporations and partnerships adversely affected by the
need to be expressed or defined in its scope; it is said to be co-
provisions of Republic Act. No. 1180, brought this action to obtain
extensive with self-protection and survival, and as such it is the
a judicial declaration that said Act is unconstitutional, and to
most positive and active of all governmental processes, the most
enjoin the Secretary of Finance and all other persons acting under
essential, insistent and illimitable. Especially is it so under a
him, particularly city and municipal treasurers, from enforcing its
modern democratic framework where the demands of society and
provisions. Petitioner attacks the constitutionality of the Act,
of nations have multiplied to almost unimaginable proportions;
contending that: (1) it denies to alien residents the equal
the field and scope of police power has become almost boundless,
protection of the laws and deprives of their liberty and property
just as the fields of public interest and public welfare have
without due process of law ; (2) the subject of the Act is not
become almost all-embracing and have transcended human
expressed or comprehended in the title thereof; (3) the Act
foresight. Otherwise stated, as we cannot foresee the needs and
violates international and treaty obligations of the Republic of the
demands of public interest and welfare in this constantly changing
Philippines; (4) the provisions of the Act against the transmission
and progressive world, so we cannot delimit beforehand the
by aliens of their retail business thru hereditary succession, and
extent or scope of police power by which and through which the
those requiring 100% Filipino capitalization for a corporation or
State seeks to attain or achieve interest or welfare. So it is that
entity to entitle it to engage in the retail business, violate the
Constitutions do not define the scope or extent of the police
spirit of Sections 1 and 5, Article XIII and Section 8 of Article XIV of
power of the State; what they do is to set forth the limitations
the Constitution.
thereof. The most important of these are the due process clause
and the equal protection clause.
In answer, the Solicitor-General and the Fiscal of the City of
Manila contend that: (1) the Act was passed in the valid exercise
b. Limitations on police power. —
of the police power of the State, which exercise is authorized in
the Constitution in the interest of national economic survival; (2)
the Act has only one subject embraced in the title; (3) no treaty or The basic limitations of due process and equal protection are
international obligations are infringed; (4) as regards hereditary found in the following provisions of our Constitution:
succession, only the form is affected but the value of the property
is not impaired, and the institution of inheritance is only of
SECTION 1.(1) No person shall be deprived of life, liberty or
statutory origin.
property without due process of law, nor any person be denied
the equal protection of the laws. (Article III, Phil. Constitution)
IV. Preliminary consideration of legal principles involved
These constitutional guarantees which embody the essence of
a. The police power. — individual liberty and freedom in democracies, are not limited to
citizens alone but are admittedly universal in their application,
without regard to any differences of race, of color, or of
There is no question that the Act was approved in the exercise of
nationality. (YickWo vs. Hopkins, 30, L. ed. 220, 226.)
the police power, but petitioner claims that its exercise in this
instance is attended by a violation of the constitutional
requirements of due process and equal protection of the laws. But c. The, equal protection clause. —
before proceeding to the consideration and resolution of the
161
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
The equal protection of the law clause is against undue favor and
individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is directed or by
territory within which is to operate. It does not demand absolute
equality among residents; it merely requires that all persons shall
be treated alike, under like circumstances and conditions both as
to privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies only
to those persons falling within a specified class, if it applies alike
to all persons within such class, and reasonable grounds exists for
making a distinction between those who fall within such class and
those who do not. (2 Cooley, Constitutional Limitations, 824-825.)
d. The due process clause. —
The due process clause has to do with the reasonableness of
legislation enacted in pursuance of the police power. Is there
public interest, a public purpose; is public welfare involved? Is the
Act reasonably necessary for the accomplishment of the
legislature's purpose; is it not unreasonable, arbitrary or
oppressive? Is there sufficient foundation or reason in connection
with the matter involved; or has there not been a capricious use
of the legislative power? Can the aims conceived be achieved by
the means used, or is it not merely an unjustified interference
with private interest? These are the questions that we ask when
the due process test is applied.
The conflict, therefore, between police power and the guarantees
of due process and equal protection of the laws is more apparent
than real. Properly related, the power and the guarantees are
supposed to coexist. The balancing is the essence or, shall it be
said, the indispensable means for the attainment of legitimate
aspirations of any democratic society. There can be no absolute
power, whoever exercise it, for that would be tyranny. Yet there
can neither be absolute liberty, for that would mean license and
anarchy. So the State can deprive persons of life, liberty and
property, provided there is due process of law; and persons may
be classified into classes and groups, provided everyone is given
the equal protection of the law. The test or standard, as always, is
reason. The police power legislation must be firmly grounded on
public interest and welfare, and a reasonable relation must exist
between purposes and means. And if distinction and classification
has been made, there must be a reasonable basis for said
distinction.
e. Legislative discretion not subject to judicial review. —
Now, in this matter of equitable balancing, what is the proper
place and role of the courts? It must not be overlooked, in the
first place, that the legislature, which is the constitutional
repository of police power and exercises the prerogative of
TROPANG POTCHI
determining the policy of the State, is by force of circumstances peddler, the owner of a small sari-sari store, to the operator of a
primarily the judge of necessity, adequacy or reasonableness and department store or, a supermarket is so much a part of day-to-
wisdom, of any law promulgated in the exercise of the police day existence.
power, or of the measures adopted to implement the public
policy or to achieve public interest. On the other hand, courts,
b. The alien retailer's trait. —
although zealous guardians of individual liberty and right, have
nevertheless evinced a reluctance to interfere with the exercise of
the legislative prerogative. They have done so early where there The alien retailer must have started plying his trades in this
has been a clear, patent or palpable arbitrary and unreasonable country in the bigger centers of population (Time there was when
abuse of the legislative prerogative. Moreover, courts are not he was unknown in provincial towns and villages). Slowly but
supposed to override legitimate policy, and courts never inquire gradually be invaded towns and villages; now he predominates in
into the wisdom of the law. the cities and big centers of population. He even pioneers, in far
away nooks where the beginnings of community life appear,
ministering to the daily needs of the residents and purchasing
V. Economic problems sought to be remedied
their agricultural produce for sale in the towns. It is an undeniable
fact that in many communities the alien has replaced the native
With the above considerations in mind, we will now proceed to retailer. He has shown in this trade, industry without limit, and
delve directly into the issue involved. If the disputed legislation the patience and forbearance of a slave.
were merely a regulation, as its title indicates, there would be no
question that it falls within the legitimate scope of legislative
Derogatory epithets are hurled at him, but he laughs these off
power. But it goes further and prohibits a group of residents, the
without murmur; insults of ill-bred and insolent neighbors and
aliens, from engaging therein. The problem becomes more
customers are made in his face, but he heeds them not, and he
complex because its subject is a common, trade or occupation, as
forgets and forgives. The community takes note of him, as he
old as society itself, which from the immemorial has always been
appears to be harmless and extremely useful.
open to residents, irrespective of race, color or citizenship.
c. Alleged alien control and dominance. —
a. Importance of retail trade in the economy of the nation. —
There is a general feeling on the part of the public, which appears
In a primitive economy where families produce all that they
to be true to fact, about the controlling and dominant position
consume and consume all that they produce, the dealer, of
that the alien retailer holds in the nation's economy. Food and
course, is unknown. But as group life develops and families begin
other essentials, clothing, almost all articles of daily life reach the
to live in communities producing more than what they consume
residents mostly through him. In big cities and centers of
and needing an infinite number of things they do not produce, the
population he has acquired not only predominance, but apparent
dealer comes into existence. As villages develop into big
control over distribution of almost all kinds of goods, such as
communities and specialization in production begins, the dealer's
lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic,
importance is enhanced. Under modern conditions and standards
and scores of other goods and articles. And were it not for some
of living, in which man's needs have multiplied and diversified to
national corporations like the Naric, the Namarco, the Facomas
unlimited extents and proportions, the retailer comes as essential
and the Acefa, his control over principal foods and products
as the producer, because thru him the infinite variety of articles,
would easily become full and complete.
goods and needed for daily life are placed within the easy reach of
consumers. Retail dealers perform the functions of capillaries in
Petitioner denies that there is alien predominance and control in
the human body, thru which all the needed food and supplies are
the retail trade. In one breath it is said that the fear is unfounded
ministered to members of the communities comprising the
and the threat is imagined; in another, it is charged that the law is
nation.
merely the result of radicalism and pure and unabashed
nationalism. Alienage, it is said, is not an element of control; also
There cannot be any question about the importance of the
so many unmanageable factors in the retail business make control
retailer in the life of the community. He ministers to the resident's
virtually impossible. The first argument which brings up an issue
daily needs, food in all its increasing forms, and the various little
of fact merits serious consideration. The others are matters of
gadgets and things needed for home and daily life. He provides his
opinion within the exclusive competence of the legislature and
customers around his store with the rice or corn, the fish, the salt,
beyond our prerogative to pass upon and decide.
the vinegar, the spices needed for the daily cooking. He has cloths
to sell, even the needle and the thread to sew them or darn the
clothes that wear out. The retailer, therefore, from the lowly
162
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
The best evidence are the statistics on the retail trade, which put
down the figures in black and white. Between the constitutional
convention year (1935), when the fear of alien domination and
control of the retail trade already filled the minds of our leaders
with fears and misgivings, and the year of the enactment of the
nationalization of the retail trade act (1954), official statistics
unmistakably point out to the ever-increasing dominance and
control by the alien of the retail trade, as witness the following
tables:
(Estimated Assets and Gross Sales of Retail Establishments, By
Year and Nationality of Owners, Benchmark: 1948 Census, issued
by the Bureau of Census and Statistics, Department of Commerce
and Industry; pp. 18-19 of Answer.)
The above statistics do not include corporations and partnerships,
while the figures on Filipino establishments already include mere
market vendors, whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests
and gross sales, alien participation has steadily increased during
the years. It is true, of course, that Filipinos have the edge in the
number of retailers, but aliens more than make up for the
numerical gap through their assests and gross sales which average
between six and seven times those of the very many Filipino
retailers. Numbers in retailers, here, do not imply superiority; the
alien invests more capital, buys and sells six to seven times more,
and gains much more. The same official report, pointing out to the
known predominance of foreign elements in the retail trade,
remarks that the Filipino retailers were largely engaged in minor
retailer enterprises. As observed by respondents, the native
investment is thinly spread, and the Filipino retailer is practically
helpless in matters of capital, credit, price and supply.
d. Alien control and threat, subject of apprehension in
Constitutional convention. —
It is this domination and control, which we believe has been
sufficiently shown to exist, that is the legislature's target in the
enactment of the disputed nationalization would never have been
adopted. The framers of our Constitution also believed in the
existence of this alien dominance and control when they
approved a resolution categorically declaring among other things,
that "it is the sense of the Convention that the public interest
requires the nationalization of the retail trade; . . . ." (II Aruego,
The Framing of the Philippine Constitution, 662-663, quoted on
page 67 of Petitioner.) That was twenty-two years ago; and the
events since then have not been either pleasant or comforting.
Dean Sinco of the University of the Philippines College of Law,
commenting on the patrimony clause of the Preamble opines that
the fathers of our Constitution were merely translating the
general preoccupation of Filipinos "of the dangers from alien
interests that had already brought under their control the
commercial and other economic activities of the country" (Sinco,
Phil. Political Law, 10th ed., p. 114); and analyzing the concern of
the members of the constitutional convention for the economic
life of the citizens, in connection with the nationalistic provisions
of the Constitution, he says:
But there has been a general feeling that alien dominance over
the economic life of the country is not desirable and that if such a
situation should remain, political independence alone is no
guarantee to national stability and strength. Filipino private
capital is not big enough to wrest from alien hands the control of
the national economy. Moreover, it is but of recent formation and
hence, largely inexperienced, timid and hesitant. Under such
conditions, the government as the instrumentality of the national
will, has to step in and assume the initiative, if not the leadership,
in the struggle for the economic freedom of the nation in
somewhat the same way that it did in the crusade for political
freedom. Thus . . . it (the Constitution) envisages an organized
movement for the protection of the nation not only against the
possibilities of armed invasion but also against its economic
subjugation by alien interests in the economic field. (Phil. Political
Law by Sinco, 10th ed., p. 476.)
Belief in the existence of alien control and predominance is felt in
other quarters. Filipino businessmen, manufacturers and
producers believe so; they fear the dangers coming from alien
control, and they express sentiments of economic independence.
Witness thereto is Resolution No. 1, approved on July 18, 1953, of
the Fifth National convention of Filipino Businessmen, and a
similar resolution, approved on March 20, 1954, of the Second
National Convention of Manufacturers and Producers. The man in
the street also believes, and fears, alien predominance and
control; so our newspapers, which have editorially pointed out
not only to control but to alien stranglehold. We, therefore, find
alien domination and control to be a fact, a reality proved by
official statistics, and felt by all the sections and groups that
compose the Filipino community.
e. Dangers of alien control and dominance in retail. —
But the dangers arising from alien participation in the retail trade
does not seem to lie in the predominance alone; there is a
prevailing feeling that such predominance may truly endanger the
national interest. With ample capital, unity of purpose and action
and thorough organization, alien retailers and merchants can act
in such complete unison and concert on such vital matters as the
fixing of prices, the determination of the amount of goods or
articles to be made available in the market, and even the choice
TROPANG POTCHI
of the goods or articles they would or would not patronize or
distribute, that fears of dislocation of the national economy and
of the complete subservience of national economy and of the
consuming public are not entirely unfounded. Nationals,
producers and consumers alike can be placed completely at their
mercy. This is easily illustrated. Suppose an article of daily use is
desired to be prescribed by the aliens, because the producer or
importer does not offer them sufficient profits, or because a new
competing article offers bigger profits for its introduction. All that
aliens would do is to agree to refuse to sell the first article,
eliminating it from their stocks, offering the new one as a
substitute. Hence, the producers or importers of the prescribed
article, or its consumers, find the article suddenly out of the
prescribed article, or its consumers, find the article suddenly out
of circulation. Freedom of trade is thus curtailed and free
enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the
pernicious influences of alien domination. Grave abuses have
characterized the exercise of the retail trade by aliens. It is a fact
within judicial notice, which courts of justice may not properly
overlook or ignore in the interests of truth and justice, that there
exists a general feeling on the part of the public that alien
participation in the retail trade has been attended by a pernicious
and intolerable practices, the mention of a few of which would
suffice for our purposes; that at some time or other they have
cornered the market of essential commodities, like corn and rice,
creating artificial scarcities to justify and enhance profits to
unreasonable proportions; that they have hoarded essential foods
to the inconvenience and prejudice of the consuming public, so
much so that the Government has had to establish the National
Rice and Corn Corporation to save the public from their
continuous hoarding practices and tendencies; that they have
violated price control laws, especially on foods and essential
commodities, such that the legislature had to enact a law (Sec. 9,
Republic Act No. 1168), authorizing their immediate and
automatic deportation for price control convictions; that they
have secret combinations among themselves to control prices,
cheating the operation of the law of supply and demand; that
they have connived to boycott honest merchants and traders who
would not cater or yield to their demands, in unlawful restraint of
freedom of trade and enterprise. They are believed by the public
to have evaded tax laws, smuggled goods and money into and out
of the land, violated import and export prohibitions, control laws
and the like, in derision and contempt of lawful authority. It is also
believed that they have engaged in corrupting public officials with
fabulous bribes, indirectly causing the prevalence of graft and
corruption in the Government. As a matter of fact appeals to
unscrupulous aliens have been made both by the Government
and by their own lawful diplomatic representatives, action which
impliedly admits a prevailing feeling about the existence of many
of the above practices.
163
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
The circumstances above set forth create well founded fears that
worse things may come in the future. The present dominance of
the alien retailer, especially in the big centers of population,
therefore, becomes a potential source of danger on occasions of
war or other calamity. We do not have here in this country
isolated groups of harmless aliens retailing goods among
nationals; what we have are well organized and powerful groups
that dominate the distribution of goods and commodities in the
communities and big centers of population. They owe no
allegiance or loyalty to the State, and the State cannot rely upon
them in times of crisis or emergency. While the national holds his
life, his person and his property subject to the needs of his
country, the alien may even become the potential enemy of the
State.
f. Law enacted in interest of national economic survival and
security. —
We are fully satisfied upon a consideration of all the facts and
circumstances that the disputed law is not the product of racial
hostility, prejudice or discrimination, but the expression of the
legitimate desire and determination of the people, thru their
authorized representatives, to free the nation from the economic
situation that has unfortunately been saddled upon it rightly or
wrongly, to its disadvantage. The law is clearly in the interest of
the public, nay of the national security itself, and indisputably falls
within the scope of police power, thru which and by which the
State insures its existence and security and the supreme welfare
of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. — The next
question that now poses solution is, Does the law deny the equal
protection of the laws? As pointed out above, the mere fact of
alienage is the root and cause of the distinction between the alien
and the national as a trader. The alien resident owes allegiance to
the country of his birth or his adopted country; his stay here is for
personal convenience; he is attracted by the lure of gain and
profit. His aim or purpose of stay, we admit, is neither illegitimate
nor immoral, but he is naturally lacking in that spirit of loyalty and
enthusiasm for this country where he temporarily stays and
makes his living, or of that spirit of regard, sympathy and
consideration for his Filipino customers as would prevent him
from taking advantage of their weakness and exploiting them. The
faster he makes his pile, the earlier can the alien go back to his
beloved country and his beloved kin and countrymen. The
experience of the country is that the alien retailer has shown such
utter disregard for his customers and the people on whom he
makes his profit, that it has been found necessary to adopt the
legislation, radical as it may seem.
TROPANG POTCHI
Another objection to the alien retailer in this country is that he . . . . "1. The equal protection clause of the Fourteenth
never really makes a genuine contribution to national income and Amendment does not take from the state the power to classify in
wealth. He undoubtedly contributes to general distribution, but the adoption of police laws, but admits of the exercise of the wide
the gains and profits he makes are not invested in industries that scope of discretion in that regard, and avoids what is done only
would help the country's economy and increase national wealth. when it is without any reasonable basis, and therefore is purely
The alien's interest in this country being merely transient and arbitrary. 2. A classification having some reasonable basis does
temporary, it would indeed be ill-advised to continue entrusting not offend against that clause merely because it is not made with
the very important function of retail distribution to his hands. mathematical nicety, or because in practice it results in some
inequality. 3. When the classification in such a law is called in
question, if any state of facts reasonably can be conceived that
The practices resorted to by aliens in the control of distribution,
would sustain it, the existence of that state of facts at the time
as already pointed out above, their secret manipulations of stocks
the law was enacted must be assumed. 4. One who assails the
of commodities and prices, their utter disregard of the welfare of
classification in such a law must carry the burden of showing that
their customers and of the ultimate happiness of the people of
it does not rest upon any reasonable basis but is essentially
the nation of which they are mere guests, which practices,
arbitrary."
manipulations and disregard do not attend the exercise of the
trade by the nationals, show the existence of real and actual,
positive and fundamental differences between an alien and a c. Authorities recognizing citizenship as basis for classification. —
national which fully justify the legislative classification adopted in
the retail trade measure. These differences are certainly a valid
The question as to whether or not citizenship is a legal and valid
reason for the State to prefer the national over the alien in the
ground for classification has already been affirmatively decided in
retail trade. We would be doing violence to fact and reality were
this jurisdiction as well as in various courts in the United States. In
we to hold that no reason or ground for a legitimate distinction
the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the
can be found between one and the other.
validity of Act No. 2761 of the Philippine Legislature was in issue,
because of a condition therein limiting the ownership of vessels
b. Difference in alien aims and purposes sufficient basis for engaged in coastwise trade to corporations formed by citizens of
distinction. — the Philippine Islands or the United States, thus denying the right
to aliens, it was held that the Philippine Legislature did not violate
the equal protection clause of the Philippine Bill of Rights. The
The above objectionable characteristics of the exercise of the
legislature in enacting the law had as ultimate purpose the
retail trade by the aliens, which are actual and real, furnish
encouragement of Philippine shipbuilding and the safety for these
sufficient grounds for legislative classification of retail traders into
Islands from foreign interlopers. We held that this was a valid
nationals and aliens. Some may disagree with the wisdom of the
exercise of the police power, and all presumptions are in favor of
legislature's classification. To this we answer, that this is the
its constitutionality. In substance, we held that the limitation of
prerogative of the law-making power. Since the Court finds that
domestic ownership of vessels engaged in coastwise trade to
the classification is actual, real and reasonable, and all persons of
citizens of the Philippines does not violate the equal protection of
one class are treated alike, and as it cannot be said that the
the law and due process or law clauses of the Philippine Bill of
classification is patently unreasonable and unfounded, it is in duty
Rights. In rendering said decision we quoted with approval the
bound to declare that the legislature acted within its legitimate
concurring opinion of Justice Johnson in the case of Gibbons vs.
prerogative and it can not declare that the act transcends the limit
Ogden, 9 Wheat., I, as follows:
of equal protection established by the Constitution.
"Licensing acts, in fact, in legislation, are universally restraining
Broadly speaking, the power of the legislature to make
acts; as, for example, acts licensing gaming houses, retailers of
distinctions and classifications among persons is not curtailed or
spirituous liquors, etc. The act, in this instance, is distinctly of that
denied by the equal protection of the laws clause. The legislative
character, and forms part of an extensive system, the object of
power admits of a wide scope of discretion, and a law can be
which is to encourage American shipping, and place them on an
violative of the constitutional limitation only when the
equal footing with the shipping of other nations. Almost every
classification is without reasonable basis. In addition to the
commercial nation reserves to its own subjects a monopoly of its
authorities we have earlier cited, we can also refer to the case
coasting trade; and a countervailing privilege in favor of American
of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which
shipping is contemplated, in the whole legislation of the United
clearly and succinctly defined the application of equal protection
States on this subject. It is not to give the vessel an American
clause to a law sought to be voided as contrary thereto:
character, that the license is granted; that effect has been
correctly attributed to the act of her enrollment. But it is to confer
on her American privileges, as contra distinguished from foreign;
164
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
and to preserve the Government from fraud by foreigners; in
surreptitiously intruding themselves into the American
commercial marine, as well as frauds upon the revenue in the
trade coastwise, that this whole system is projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids
a classification otherwise justified simply because the limitation of
the class falls along the lines of nationality. That would be
requiring a higher degree of protection for aliens as a class than
for similar classes than for similar classes of American citizens.
Broadly speaking, the difference in status between citizens and
aliens constitutes a basis for reasonable classification in the
exercise of police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a
statute on the licensing of hawkers and peddlers, which provided
that no one can obtain a license unless he is, or has declared his
intention, to become a citizen of the United States, was held valid,
for the following reason: It may seem wise to the legislature to
limit the business of those who are supposed to have regard for
the welfare, good order and happiness of the community, and the
court cannot question this judgment and conclusion.
In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which
prevented certain persons, among them aliens, from engaging in
the traffic of liquors, was found not to be the result of race
hatred, or in hospitality, or a deliberate purpose to discriminate,
but was based on the belief that an alien cannot be sufficiently
acquainted with "our institutions and our life as to enable him to
appreciate the relation of this particular business to our entire
social fabric", and was not, therefore, invalid. In Ohio ex
rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed. 115 (1926), the
U.S. Supreme Court had under consideration an ordinance of the
city of Cincinnati prohibiting the issuance of licenses (pools and
billiard rooms) to aliens. It held that plainly irrational
discrimination against aliens is prohibited, but it does not follow
that alien race and allegiance may not bear in some instances
such a relation to a legitimate object of legislation as to be made
the basis of permitted classification, and that it could not state
that the legislation is clearly wrong; and that latitude must be
allowed for the legislative appraisement of local conditions and
for the legislative choice of methods for controlling an
apprehended evil. The case of State vs. Carrol, 124 N. E. 129
(Ohio, 1919) is a parallel case to the one at bar. In Asakura vs. City
of Seattle, 210 P. 30 (Washington, 1922), the business of pawn
brooking was considered as having tendencies injuring public
interest, and limiting it to citizens is within the scope of police
power. A similar statute denying aliens the right to engage in
auctioneering was also sustained in Wright vs. May, L.R.A., 1915
P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F.
340 (Oregon, 1924), the court said that aliens are judicially known
to have different interests, knowledge, attitude, psychology and
loyalty, hence the prohibitions of issuance of licenses to them for
the business of pawnbroker, pool, billiard, card room, dance hall,
is not an infringement of constitutional rights. In Templar vs.
Michigan State Board of Examiners, 90 N.W. 1058 (Michigan,
1902), a law prohibiting the licensing of aliens as barbers was held
void, but the reason for the decision was the court's findings that
the exercise of the business by the aliens does not in any way
affect the morals, the health, or even the convenience of the
community. In Takahashi vs. Fish and Game Commission, 92 L. ed.
1479 (1947), a California statute banning the issuance of
commercial fishing licenses to person ineligible to citizenship was
held void, because the law conflicts with Federal power over
immigration, and because there is no public interest in the mere
claim of ownership of the waters and the fish in them, so there
was no adequate justification for the discrimination. It further
added that the law was the outgrowth of antagonism toward the
persons of Japanese ancestry. However, two Justices dissented on
the theory that fishing rights have been treated traditionally as
natural resources. In Fraser vs. McConway&Tarley Co., 82 Fed.
257 (Pennsylvania, 1897), a state law which imposed a tax on
every employer of foreign-born unnaturalized male persons over
21 years of age, was declared void because the court found that
there was no reason for the classification and the tax was an
arbitrary deduction from the daily wage of an employee.
d. Authorities contra explained. —
It is true that some decisions of the Federal court and of the State
courts in the United States hold that the distinction between
aliens and citizens is not a valid ground for classification. But in
this decision the laws declared invalid were found to be either
arbitrary, unreasonable or capricious, or were the result or
product of racial antagonism and hostility, and there was no
question of public interest involved or pursued. In Yu Cong Eng vs.
Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court
declared invalid a Philippine law making unlawful the keeping of
books of account in any language other than English, Spanish or
any other local dialect, but the main reasons for the decisions are:
(1) that if Chinese were driven out of business there would be no
other system of distribution, and (2) that the Chinese would fall
prey to all kinds of fraud, because they would be deprived of their
right to be advised of their business and to direct its conduct. The
real reason for the decision, therefore, is the court's belief that no
public benefit would be derived from the operations of the law
and on the other hand it would deprive Chinese of something
indispensable for carrying on their business. In YickWo vs.
Hopkins, 30 L. ed 220 (1885) an ordinance conferring powers on
officials to withhold consent in the operation of laundries both as
to persons and place, was declared invalid, but the court said that
the power granted was arbitrary, that there was no reason for the
discrimination which attended the administration and
implementation of the law, and that the motive thereof was mere
racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900),
TROPANG POTCHI
a law prohibiting aliens to engage as hawkers and peddlers was
declared void, because the discrimination bore no reasonable and
just relation to the act in respect to which the classification was
proposed.
The case at bar is radically different, and the facts make them so.
As we already have said, aliens do not naturally possess the
sympathetic consideration and regard for the customers with
whom they come in daily contact, nor the patriotic desire to help
bolster the nation's economy, except in so far as it enhances their
profit, nor the loyalty and allegiance which the national owes to
the land. These limitations on the qualifications of the aliens have
been shown on many occasions and instances, especially in times
of crisis and emergency. We can do no better than borrow the
language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home
the reality and significance of the distinction between the alien
and the national, thus:
. . . . It may be judicially known, however, that alien coming into
this country are without the intimate knowledge of our laws,
customs, and usages that our own people have. So it is likewise
known that certain classes of aliens are of different psychology
from our fellow countrymen. Furthermore, it is natural and
reasonable to suppose that the foreign born, whose allegiance is
first to their own country, and whose ideals of governmental
environment and control have been engendered and formed
under entirely different regimes and political systems, have not
the same inspiration for the public weal, nor are they as well
disposed toward the United States, as those who by citizenship,
are a part of the government itself. Further enlargement, is
unnecessary. I have said enough so that obviously it cannot be
affirmed with absolute confidence that the Legislature was
without plausible reason for making the classification, and
therefore appropriate discriminations against aliens as it relates
to the subject of legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by
legislature decisive. —
We now come to due process as a limitation on the exercise of
the police power. It has been stated by the highest authority in
the United States that:
. . . . And the guaranty of due process, as has often been held,
demands only that the law shall not be unreasonable, arbitrary or
capricious, and that the means selected shall have a real and
substantial relation to the subject sought to be attained. . . . .
x xx           x xx           x xx
165
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
So far as the requirement of due process is concerned and in the
absence of other constitutional restriction a state is free to adopt
whatever economic policy may reasonably be deemed to promote
public welfare, and to enforce that policy by legislation adapted to
its purpose. The courts are without authority either to declare
such policy, or, when it is declared by the legislature, to override
it. If the laws passed are seen to have a reasonable relation to a
proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied, and
judicial determination to that effect renders a court functus
officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word
"reasonable" in considering the scope of the police power in a
constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to
inquire whether the restriction it imposes on rights secured to
individuals by the Bill of Rights are unreasonable, and not whether
it imposes any restrictions on such rights. . . .
x xx           x xx           x xx
. . . . A statute to be within this power must also be reasonable in
its operation upon the persons whom it affects, must not be for
the annoyance of a particular class, and must not be unduly
oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388.it was also
held:
. . . . To justify the state in thus interposing its authority in behalf
of the public, it must appear, first, that the interests of the public
generally, as distinguished from those of a particular class, require
such interference; and second, that the means are reasonably
necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR,
389, 395, fixes this test of constitutionality:
In determining whether a given act of the Legislature, passed in
the exercise of the police power to regulate the operation of a
business, is or is not constitutional, one of the first questions to be
considered by the court is whether the power as exercised has a
sufficient foundation in reason in connection with the matter
involved, or is an arbitrary, oppressive, and capricious use of that
power, without substantial relation to the health, safety, morals,
comfort, and general welfare of the public.
b. Petitioner's argument considered. —
Petitioner's main argument is that retail is a common, ordinary
occupation, one of those privileges long ago recognized as
essential to the orderly pursuant of happiness by free men; that it
is a gainful and honest occupation and therefore beyond the
power of the legislature to prohibit and penalized. This arguments
overlooks fact and reality and rests on an incorrect assumption
and premise, i.e., that in this country where the occupation is
engaged in by petitioner, it has been so engaged by him, by the
alien in an honest creditable and unimpeachable manner, without
harm or injury to the citizens and without ultimate danger to their
economic peace, tranquility and welfare. But the Legislature has
found, as we have also found and indicated, that the privilege has
been so grossly abused by the alien, thru the illegitimate use of
pernicious designs and practices, that he now enjoys a
monopolistic control of the occupation and threatens a deadly
stranglehold on the nation's economy endangering the national
security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by
petitioner, which overlooks and ignores the facts and
circumstances, but this, Is the exclusion in the future of aliens
from the retail trade unreasonable. Arbitrary capricious, taking
into account the illegitimate and pernicious form and manner in
which the aliens have heretofore engaged therein? As thus
correctly stated the answer is clear. The law in question is deemed
absolutely necessary to bring about the desired legislative
objective, i.e., to free national economy from alien control and
dominance. It is not necessarily unreasonable because it affects
private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test
of reasonableness of a law is the appropriateness or adequacy
under all circumstances of the means adopted to carry out its
purpose into effect (Id.) Judged by this test, disputed legislation,
which is not merely reasonable but actually necessary, must be
considered not to have infringed the constitutional limitation of
reasonableness.
The necessity of the law in question is explained in the
explanatory note that accompanied the bill, which later was
enacted into law:
This bill proposes to regulate the retail business. Its purpose is to
prevent persons who are not citizens of the Philippines from
having a strangle hold upon our economic life. If the persons who
control this vital artery of our economic life are the ones who owe
no allegiance to this Republic, who have no profound devotion to
our free institutions, and who have no permanent stake in our
people's welfare, we are not really the masters of our destiny. All
aspects of our life, even our national security, will be at the mercy
of other people.
TROPANG POTCHI
In seeking to accomplish the foregoing purpose, we do not
propose to deprive persons who are not citizens of the Philippines
of their means of livelihood. While this bill seeks to take away
from the hands of persons who are not citizens of the Philippines
a power that can be wielded to paralyze all aspects of our national
life and endanger our national security it respects existing rights.
The approval of this bill is necessary for our national
survival.
If political independence is a legitimate aspiration of a people,
then economic independence is none the less legitimate.
Freedom and liberty are not real and positive if the people are
subject to the economic control and domination of others,
especially if not of their own race or country. The removal and
eradication of the shackles of foreign economic control and
domination, is one of the noblest motives that a national
legislature may pursue. It is impossible to conceive that legislation
that seeks to bring it about can infringe the constitutional
limitation of due process. The attainment of a legitimate
aspiration of a people can never be beyond the limits of legislative
authority.
c. Law expressly held by Constitutional Convention to be within
the sphere of legislative action. —
The framers of the Constitution could not have intended to
impose the constitutional restrictions of due process on the
attainment of such a noble motive as freedom from economic
control and domination, thru the exercise of the police power.
The fathers of the Constitution must have given to the legislature
full authority and power to enact legislation that would promote
the supreme happiness of the people, their freedom and liberty.
On the precise issue now before us, they expressly made their
voice clear; they adopted a resolution expressing their belief that
the legislation in question is within the scope of the legislative
power. Thus they declared the their Resolution:
That it is the sense of the Convention that the public interest
requires the nationalization of retail trade; but it abstain from
approving the amendment introduced by the Delegate for Manila,
Mr. Araneta, and others on this matter because it is convinced
that the National Assembly is authorized to promulgate a law
which limits to Filipino and American citizens the privilege to
engage in the retail trade. (11 Aruego, The Framing of the
Philippine Constitution, quoted on pages 66 and 67 of the
Memorandum for the Petitioner.)
It would do well to refer to the nationalistic tendency manifested
in various provisions of the Constitution. Thus in the preamble, a
principle objective is the conservation of the patrimony of the
166
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
nation and as corollary the provision limiting to citizens of the
Philippines the exploitation, development and utilization of its
natural resources. And in Section 8 of Article XIV, it is provided
that "no franchise, certificate, or any other form of authorization
for the operation of the public utility shall be granted except to
citizens of the Philippines." The nationalization of the retail trade
is only a continuance of the nationalistic protective policy laid
down as a primary objective of the Constitution. Can it be said
that a law imbued with the same purpose and spirit underlying
many of the provisions of the Constitution is unreasonable, invalid
and unconstitutional?
The seriousness of the Legislature's concern for the plight of the
nationals as manifested in the approval of the radical measures is,
therefore, fully justified. It would have been recreant to its duties
towards the country and its people would it view the sorry plight
of the nationals with the complacency and refuse or neglect to
adopt a remedy commensurate with the demands of public
interest and national survival. As the repository of the sovereign
power of legislation, the Legislature was in duty bound to face the
problem and meet, through adequate measures, the danger and
threat that alien domination of retail trade poses to national
economy.
d. Provisions of law not unreasonable. —
A cursory study of the provisions of the law immediately reveals
how tolerant, how reasonable the Legislature has been. The law is
made prospective and recognizes the right and privilege of those
already engaged in the occupation to continue therein during the
rest of their lives; and similar recognition of the right to continue
is accorded associations of aliens. The right or privilege is denied
to those only upon conviction of certain offenses. In the
deliberations of the Court on this case, attention was called to the
fact that the privilege should not have been denied to children
and heirs of aliens now engaged in the retail trade. Such provision
would defeat the law itself, its aims and purposes. Beside, the
exercise of legislative discretion is not subject to judicial review. It
is well settled that the Court will not inquire into the motives of
the Legislature, nor pass upon general matters of legislative
judgment. The Legislature is primarily the judge of the necessity
of an enactment or of any of its provisions, and every
presumption is in favor of its validity, and though the Court may
hold views inconsistent with the wisdom of the law, it may not
annul the legislation if not palpably in excess of the legislative
power. Furthermore, the test of the validity of a law attacked as a
violation of due process, is not its reasonableness, but its
unreasonableness, and we find the provisions are not
unreasonable. These principles also answer various other
arguments raised against the law, some of which are: that the law
does not promote general welfare; that thousands of aliens would
be thrown out of employment; that prices will increase because of
the elimination of competition; that there is no need for the
legislation; that adequate replacement is problematical; that
there may be general breakdown; that there would be
repercussions from foreigners; etc. Many of these arguments are
directed against the supposed wisdom of the law which lies solely
within the legislative prerogative; they do not import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the
law is the claim that the title thereof is misleading or deceptive, as
it conceals the real purpose of the bill which is to nationalize the
retail business and prohibit aliens from engaging therein. The
constitutional provision which is claimed to be violated in Section
21 (1) of Article VI, which reads:
No bill which may be enacted in the law shall embrace more than
one subject which shall be expressed in the title of the bill.
What the above provision prohibits is duplicity, that is, if its title
completely fails to appraise the legislators or the public of the
nature, scope and consequences of the law or its operation (I
Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory
consideration of the title and the provisions of the bill fails to
show the presence of duplicity. It is true that the term "regulate"
does not and may not readily and at first glance convey the idea
of "nationalization" and "prohibition", which terms express the
two main purposes and objectives of the law. But "regulate" is a
broader term than either prohibition or nationalization. Both of
these have always been included within the term regulation.
Under the title of an act to "regulate", the sale of intoxicating
liquors, the Legislature may prohibit the sale of intoxicating
liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41 of
Answer.)
Within the meaning of the Constitution requiring that the subject
of every act of the Legislature shall be stated in the tale, the title
to regulate the sale of intoxicating liquors, etc." sufficiently
expresses the subject of an act prohibiting the sale of such liquors
to minors and to persons in the habit of getting intoxicated; such
matters being properly included within the subject of regulating
the sale. (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of
Answer.)
The word "regulate" is of broad import, and necessarily implies
some degree of restraint and prohibition of acts usually done in
connection with the thing to be regulated. While word regulate
does not ordinarily convey meaning of prohibit, there is no
absolute reason why it should not have such meaning when used
in delegating police power in connection with a thing the best or
TROPANG POTCHI
only efficacious regulation of which involves suppression. (State
vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill;
it has also been said that the title need not be an index to the
entire contents of the law (I Sutherland, Statutory Construction,
See. 4803, p. 345.) The above rule was followed the title of the
Act in question adopted the more general term "regulate" instead
of "nationalize" or "prohibit". Furthermore, the law also contains
other rules for the regulation of the retail trade which may not be
included in the terms "nationalization" or "prohibition"; so were
the title changed from "regulate" to "nationalize" or "prohibit",
there would have been many provisions not falling within the
scope of the title which would have made the Act invalid. The use
of the term "regulate", therefore, is in accord with the principle
governing the drafting of statutes, under which a simple or
general term should be adopted in the title, which would include
all other provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a
bill should be embraced in its title is to apprise the legislators of
the purposes, the nature and scope of its provisions, and prevent
the enactment into law of matters which have received the
notice, action and study of the legislators or of the public. In the
case at bar it cannot be claimed that the legislators have been
appraised of the nature of the law, especially the nationalization
and the prohibition provisions. The legislators took active interest
in the discussion of the law, and a great many of the persons
affected by the prohibitions in the law conducted a campaign
against its approval. It cannot be claimed, therefore, that the
reasons for declaring the law invalid ever existed. The objection
must therefore, be overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is
the supposed violation thereby of the Charter of the United
Nations and of the Declaration of the Human Rights adopted by
the United Nations General Assembly. We find no merit in the
Nations Charter imposes no strict or legal obligations regarding
the rights and freedom of their subjects (Hans Kelsen, The Law of
the United Nations, 1951 ed. pp. 29-32), and the Declaration of
Human Rights contains nothing more than a mere
recommendation or a common standard of achievement for all
peoples and all nations (Id. p. 39.) That such is the import of the
United Nations Charter aid of the Declaration of Human Rights
can be inferred the fact that members of the United Nations
Organizations, such as Norway and Denmark, prohibit foreigners
from engaging in retail trade, and in most nations of the world
laws against foreigners engaged in domestic trade are adopted.
167
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
The Treaty of Amity between the Republic of the Philippines and
the Republic of China of April 18, 1947 is also claimed to be
violated by the law in question. All that the treaty guarantees is
equality of treatment to the Chinese nationals "upon the same
terms as the nationals of any other country." But the nationals of
China are not discriminating against because nationals of all other
countries, except those of the United States, who are granted
special rights by the Constitution, are all prohibited from engaging
in the retail trade. But even supposing that the law infringes upon
the said treaty, the treaty is always subject to qualification or
amendment by a subsequent law (U. S. vs. Thompson, 258, Fed.
257, 260), and the same may never curtail or restrict the scope of
the police power of the State (plaston vs. Pennsylvania, 58 L. ed.
539.)
X. Conclusion
Resuming what we have set forth above we hold that the
disputed law was enacted to remedy a real actual threat and
danger to national economy posed by alien dominance and
control of the retail business and free citizens and country from
dominance and control; that the enactment clearly falls within the
scope of the police power of the State, thru which and by which it
protects its own personality and insures its security and future;
that the law does not violate the equal protection clause of the
Constitution because sufficient grounds exist for the distinction
between alien and citizen in the exercise of the occupation
regulated, nor the due process of law clause, because the law is
prospective in operation and recognizes the privilege of aliens
already engaged in the occupation and reasonably protects their
privilege; that the wisdom and efficacy of the law to carry out its
objectives appear to us to be plainly evident — as a matter of fact
it seems not only appropriate but actually necessary — and that in
any case such matter falls within the prerogative of the
Legislature, with whose power and discretion the Judicial
department of the Government may not interfere; that the
provisions of the law are clearly embraced in the title, and this
suffers from no duplicity and has not misled the legislators or the
segment of the population affected; and that it cannot be said to
be void for supposed conflict with treaty obligations because no
treaty has actually been entered into on the subject and the
police power may not be curtailed or surrendered by any treaty or
any other conventional agreement.
Some members of the Court are of the opinion that the radical
effects of the law could have been made less harsh in its impact
on the aliens. Thus it is stated that the more time should have
been given in the law for the liquidation of existing businesses
when the time comes for them to close. Our legal duty, however,
is merely to determine if the law falls within the scope of
legislative authority and does not transcend the limitations of due
process and equal protection guaranteed in the Constitution.
Remedies against the harshness of the law should be addressed to
the Legislature; they are beyond our power and jurisdiction.
The petition is hereby denied, with costs against petitioner.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-29646 November 10, 1978
MAYOR ANTONIO J. VILLEGAS, petitioner,  except persons employed in the diplomatic or consular missions
vs.
HIU CHIONG TSAI PAO HO and JUDGE FRANCISCO
ARCA, respondents.
Angel C. Cruz, Gregorio A. Ejercito, Felix C. Chaves & Jose Laureta
for petitioner.
Sotero H. Laurel for respondents.
FERNANDEZ, J.:
This is a petition for certiorari to review tile decision dated
September 17, 1968 of respondent Judge Francisco Arca of the
Court of First Instance of Manila, Branch I, in Civil Case No. 72797,
the dispositive portion of winch reads.
Wherefore, judgment is hereby rendered in favor of the petitioner
and against the respondents, declaring Ordinance No. 6 37 of the
City of Manila null and void. The preliminary injunction is made
permanent. No pronouncement as to cost.
SO ORDERED.
Manila, Philippines, September 17, 1968.
(SGD.) FRANCISCO ARCA
Judge 1
The controverted Ordinance No. 6537 was passed by the
Municipal Board of Manila on February 22, 1968 and signed by
the herein petitioner Mayor Antonio J. Villegas of Manila on
March 27, 1968. 2
TROPANG POTCHI
City Ordinance No. 6537 is entitled:
AN ORDINANCE MAKING IT UNLAWFUL FOR ANY PERSON NOT A
CITIZEN OF THE PHILIPPINES TO BE EMPLOYED IN ANY PLACE OF
EMPLOYMENT OR TO BE ENGAGED IN ANY KIND OF TRADE,
BUSINESS OR OCCUPATION WITHIN THE CITY OF MANILA
WITHOUT FIRST SECURING AN EMPLOYMENT PERMIT FROM THE
MAYOR OF MANILA; AND FOR OTHER PURPOSES. 3
Section 1 of said Ordinance No. 6537 4 prohibits aliens from being
employed or to engage or participate in any position or
occupation or business enumerated therein, whether permanent,
temporary or casual, without first securing an employment permit
from the Mayor of Manila and paying the permit fee of P50.00
of foreign countries, or in the technical assistance programs of
both the Philippine Government and any foreign government, and
those working in their respective households, and members of
religious orders or congregations, sect or denomination, who are
not paid monetarily or in kind.
Violations of this ordinance is punishable by an imprisonment of
not less than three (3) months to six (6) months or fine of not less
than P100.00 but not more than P200.00 or both such fine and
imprisonment, upon conviction. 5
On May 4, 1968, private respondent HiuChiong Tsai Pao Ho who
was employed in Manila, filed a petition with the Court of First
Instance of Manila, Branch I, denominated as Civil Case No.
72797, praying for the issuance of the writ of preliminary
injunction and restraining order to stop the enforcement of
Ordinance No. 6537 as well as for a judgment declaring said
Ordinance No. 6537 null and void. 6
In this petition, HiuChiong Tsai Pao Ho assigned the following as
his grounds for wanting the ordinance declared null and void:
1) As a revenue measure imposed on aliens employed in the City
of Manila, Ordinance No. 6537 is discriminatory and violative of
the rule of the uniformity in taxation;
2) As a police power measure, it makes no distinction between
useful and non-useful occupations, imposing a fixed P50.00
employment permit, which is out of proportion to the cost of
registration and that it fails to prescribe any standard to guide
and/or limit the action of the Mayor, thus, violating the
fundamental principle on illegal delegation of legislative powers:
3) It is arbitrary, oppressive and unreasonable, being applied only
to aliens who are thus, deprived of their rights to life, liberty and
168
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
property and therefore, violates the due process and equal
protection clauses of the Constitution. 7
On May 24, 1968, respondent Judge issued the writ of preliminary
injunction and on September 17, 1968 rendered judgment
declaring Ordinance No. 6537 null and void and making
permanent the writ of preliminary injunction. 8
Contesting the aforecited decision of respondent Judge, then
Mayor Antonio J. Villegas filed the present petition on March 27,
1969. Petitioner assigned the following as errors allegedly
committed by respondent Judge in the latter's decision of
September 17,1968: 9
I.THE RESPONDENT JUDGE COMMITTED A SERIOUS AND PATENT
ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED
THE CARDINAL RULE OF UNIFORMITY OF TAXATION.
II.RESPONDENT JUDGE LIKEWISE COMMITTED A GRAVE AND
PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537
VIOLATED THE PRINCIPLE AGAINST UNDUE DESIGNATION OF
LEGISLATIVE POWER.
III.RESPONDENT JUDGE FURTHER COMMITTED A SERIOUS AND
PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537
VIOLATED THE DUE PROCESS AND EQUAL PROTECTION CLAUSES
OF THE CONSTITUTION.
Petitioner Mayor Villegas argues that Ordinance No. 6537 cannot
be declared null and void on the ground that it violated the rule
on uniformity of taxation because the rule on uniformity of
taxation applies only to purely tax or revenue measures and that
Ordinance No. 6537 is not a tax or revenue measure but is an
exercise of the police power of the state, it being principally a
regulatory measure in nature.
The contention that Ordinance No. 6537 is not a purely tax or
revenue measure because its principal purpose is regulatory in
nature has no merit. While it is true that the first part which
requires that the alien shall secure an employment permit from
the Mayor involves the exercise of discretion and judgment in the
processing and approval or disapproval of applications for
employment permits and therefore is regulatory in character the
second part which requires the payment of P50.00 as employee's
fee is not regulatory but a revenue measure. There is no logic or
justification in exacting P50.00 from aliens who have been cleared
for employment. It is obvious that the purpose of the ordinance is
to raise money under the guise of regulation.
The P50.00 fee is unreasonable not only because it is excessive
but because it fails to consider valid substantial differences in
situation among individual aliens who are required to pay it.
Although the equal protection clause of the Constitution does not
forbid classification, it is imperative that the classification should
be based on real and substantial differences having a reasonable
relation to the subject of the particular legislation. The same
amount of P50.00 is being collected from every employed alien
whether he is casual or permanent, part time or full time or
whether he is a lowly employee or a highly paid executive
Ordinance No. 6537 does not lay down any criterion or standard
to guide the Mayor in the exercise of his discretion. It has been
held that where an ordinance of a municipality fails to state any
policy or to set up any standard to guide or limit the mayor's
action, expresses no purpose to be attained by requiring a permit,
enumerates no conditions for its grant or refusal, and entirely
lacks standard, thus conferring upon the Mayor arbitrary and
unrestricted power to grant or deny the issuance of building
permits, such ordinance is invalid, being an undefined and
unlimited delegation of power to allow or prevent an activity per
se lawful. 10
In Chinese Flour Importers Association vs. Price Stabilization
Board, 11 where a law granted a government agency power to
determine the allocation of wheat flour among importers, the
Supreme Court ruled against the interpretation of uncontrolled
power as it vested in the administrative officer an arbitrary
discretion to be exercised without a policy, rule, or standard from
which it can be measured or controlled.
It was also held in Primicias vs. Fugoso 12 that the authority and
discretion to grant and refuse permits of all classes conferred
upon the Mayor of Manila by the Revised Charter of Manila is not
uncontrolled discretion but legal discretion to be exercised within
the limits of the law.
Ordinance No. 6537 is void because it does not contain or suggest
any standard or criterion to guide the mayor in the exercise of the
power which has been granted to him by the ordinance.
The ordinance in question violates the due process of law and
equal protection rule of the Constitution.
Requiring a person before he can be employed to get a permit
from the City Mayor of Manila who may withhold or refuse it at
will is tantamount to denying him the basic right of the people in
the Philippines to engage in a means of livelihood. While it is true
that the Philippines as a State is not obliged to admit aliens within
its territory, once an alien is admitted, he cannot be deprived of
life without due process of law. This guarantee includes the
means of livelihood. The shelter of protection under the due
TROPANG POTCHI
process and equal protection clause is given to all persons, both
aliens and citizens. 13
The trial court did not commit the errors assigned.
WHEREFORE, the decision appealed from is hereby affirmed,
without pronouncement as to costs. SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-52245 January 22, 1980
PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO
SALAPANTAN, JR., petitioners, 
vs.
COMMISSION ON ELECTIONS, respondent.
Raul M. Gonzales for petitioners
Office of the Solicitor General for respondent.
MELENCIO-HERRERA, J:
This is a Petition for Prohibition with Preliminary Injunction and/or
Restraining Order filed by petitioners, in their own behalf and all
others allegedly similarly situated, seeking to enjoin respondent
Commission on Elections (COMELEC) from implementing certain
provisions of Batas Pambansa Big. 51, 52, and 53 for being
unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao, is a former
Governor of Nueva Vizcaya, who has filed his certificate of
candidacy for said position of Governor in the forthcoming
elections of January 30, 1980. Petitioner, Romeo B. Igot, is a
taxpayer, a qualified voter and a member of the Bar who, as such,
has taken his oath to support the Constitution and obey the laws
of the land. Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a
qualified voter, and a resident of San Miguel, Iloilo.
Petitioner Dumlao specifically questions the constitutionality of
section 4 of Batas Pambansa Blg. 52 as discriminatory and
169
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
contrary to the equal protection and due process guarantees of
the Constitution. Said Section 4 provides:
Sec. 4. Special Disqualification in addition to
violation of section 10 of Art. XI I-C of the
Constitution and disqualification mentioned
in existing laws, which are hereby declared
as disqualification for any of the elective
officials enumerated in section 1 hereof.
Any retired elective provincial city or
municipal official who has received
payment of the retirement benefits to which
he is entitled under the law, and who shall
have been 6,5 years of age at the
commencement of the term of office to
which he seeks to be elected shall not be
qualified to run for the same elective local
office from which he has retired (Emphasis
supplied)
Petitioner Dumlao alleges that the aforecited provision is directed
insidiously against him, and that the classification provided
therein is based on "purely arbitrary grounds and, therefore, class
legislation."
For their part, petitioners igot and Salapantan, Jr. assail the
validity of the following statutory provisions:
Sec 7. Terms of Office — Unless sooner
removed for cause, all local elective officials
hereinabove mentioned shall hold office for
a term of six (6) years, which shall
commence on the first Monday of March
1980.
.... (Batas Pambansa Blg. 51) Sec. 4.
Sec. 4. ...
Any person who has committed any act of
disloyalty to the State, including acts
amounting to subversion, insurrection,
rebellion or other similar crimes, shall not
be qualified to be a candidate for any of the
offices covered by this Act, or to participate
in any partisan political activity therein:
TROPANG POTCHI
provided that a judgment of conviction for taxpayer's suit. Although petitioners plead nine constraints as the
any of the aforementioned crimes shall be reason of their joint Petition, it would have required only a
conclusive evidence of such fact and modicum more of effort tor petitioner Dumlao, on one hand said
petitioners lgot and Salapantan, on the other, to have filed
separate suits, in the interest of orderly procedure.
the filing of charges for the commission of
such crimes before a civil court or military
tribunal after preliminary investigation shall For another, there are standards that have to be followed inthe
be prima fascie evidence of such fact. exercise of the function of judicial review, namely (1) the
existence of an appropriate case:, (2) an interest personal and
substantial by the party raising the constitutional question: (3) the
... (Batas Pambansa Big. 52) (Paragraphing
plea that the function be exercised at the earliest opportunity and
and Emphasis supplied).
(4) the necessity that the constiutional question be passed upon
in order to decide the case (People vs. Vera 65 Phil. 56 [1937]).
Section 1. Election of certain Local Officials
— ... The election shall be held on January
It may be conceded that the third requisite has been complied
30, 1980. (Batas Pambansa, Blg. 52)
with, which is, that the parties have raised the issue of
constitutionality early enough in their pleadings.
Section 6. Election and Campaign Period —
The election period shall be fixed by the
This Petition, however, has fallen far short of the other three
Commission on Elections in accordance with
criteria.
Section 6, Art. XII-C of the Constitution. The
period of campaign shall commence on
December 29, 1979 and terminate on A. Actual case and controversy.
January 28, 1980. (ibid.)
It is basic that the power of judicial review is limited to the
In addition to the above-cited provisions, petitioners Igot and determination of actual cases and controversies.
Salapantan, Jr. also question the accreditation of some political
parties by respondent COMELEC, as authorized by Batas
Petitioner Dumlao assails the constitutionality of the first
Pambansa Blg. 53, on the ground that it is contrary to section
paragraph of section 4 of Batas Pambansa Blg. 52, quoted earlier,
9(1)Art. XIIC of the Constitution, which provides that a "bona fide
as being contrary to the equal protection clause guaranteed by
candidate for any public office shall be it. from any form of
the Constitution, and seeks to prohibit respondent COMELEC from
harassment and discrimination. "The question of accreditation will
implementing said provision. Yet, Dumlao has not been adversely
not be taken up in this case but in that of Bacalso, et als. vs.
affected by the application of that provision. No petition seeking
COMELEC et als. No. L-52232) where the issue has been squarely
Dumlao's disqualification has been filed before the COMELEC.
raised,
There is no ruling of that constitutional body on the matter, which
this Court is being asked to review on Certiorari. His is a question
Petitioners then pray that the statutory provisions they have posed in the abstract, a hypothetical issue, and in effect, a
challenged be declared null and void for being violative of the petition for an advisory opinion from this Court to be rendered
Constitution. without the benefit of a detailed factual record Petitioner
Dumlao's case is clearly within the primary jurisdiction (see
concurring Opinion of now Chief Justice Fernando in Peralta vs.
I . The procedural Aspect
Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as
provided for in section 2, Art. XII-C, for the Constitution the
At the outset, it should be stated that this Petition suffers from pertinent portion of which reads:
basic procedural infirmities, hence, traditionally unacceptable for
judicial resolution. For one, there is a misjoinder of parties and
"Section 2. The Commission on Elections shall have the following
actions. Petitioner Dumlao's interest is alien to that of petitioners
power and functions:
Igot and Salapantan Petitioner Dumlao does not join petitioners
Igot and Salapantan in the burden of their complaint, nor do the
latter join Dumlao in his. The respectively contest completely 1) xxx
different statutory provisions. Petitioner Dumlao has joined this
suit in his individual capacity as a candidate. The action of
petitioners Igot and Salapantan is more in the nature of a
170
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
2) Be the sole judge of all contests relating
to the elections, returns
and qualifications of all members of the
National Assembly and elective provincial
and city officials. (Emphasis supplied)
The aforequoted provision must also be related to section 11 of
Art. XII-C, which provides:
Section 11. Any decision, order, or ruling of
the Commission may be brought to the
Supreme Court on certiorari by the
aggrieved party within thirty days from his
receipt of a copy thereof.
B. Proper party.
The long-standing rule has been that "the person who impugns
the validity of a statute must have a personal and substantial
interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement" (People vs.
Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during
the hearing, not in their Petition, that Igot is said to be a
candidate for Councilor. Even then, it cannot be denied that
neither one has been convicted nor charged with acts of disloyalty
to the State, nor disqualified from being candidates for local
elective positions. Neither one of them has been calle ed to have
been adversely affected by the operation of the statutory
provisions they assail as unconstitutional Theirs is a generated
grievance. They have no personal nor substantial interest at stake.
In the absence of any litigate interest, they can claim no locus
standi in seeking judicial redress.
It is true that petitioners Igot and Salapantan have instituted this
case as a taxpayer's suit, and that the rule enunciated in People
vs. Vera, above stated, has been relaxed in Pascual vs. The
Secretary of Public Works (110 Phil. 331 [1960], thus:
... it is well settled that the validity of a
statute may be contested only by one who
will sustain a direct injury in consequence of
its enforcement. Yet, there are many
decisions nullifying at the instance of
taxpayers, laws providing for the
disbursement of public funds, upon the
theory that "the expenditure of public
funds, by an officer of the State for the
purpose of administering an
unconstitutional act constitutes a
misapplication of such funds," which may
be enjoined at the request of a taxpayer.
In the same vein, it has been held:
In the determination of the degree of
interest essential to give the requisite
standing to attack the constitutionality of a
statute, the general rule is that not only
persons individually affected, but also
taxpayers have sufficient interest in
preventing the illegal expenditure of
moneys raised by taxation and they may,
therefore, question the constitutionality of
statutes requiring expenditure of public
moneys. (Philippine Constitution
Association, Inc., et als., vs. Gimenez, et als.,
15 SCRA 479 [1965]).
However, the statutory provisions questioned in this case,
namely, sec. 7, BP Blg. 51, and sections 4, 1, and 6 BP Blg. 52, do
not directly involve the disbursement of public funds. While,
concededly, the elections to be held involve the expenditure of
public moneys, nowhere in their Petition do said petitioners allege
that their tax money is "being extracted and spent in violation of
specific constitutional protections against abuses of legislative
power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a
misapplication of such funds by respondent COMELEC (see
Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or
that public money is being deflected to any improper purpose.
Neither do petitioners seek to restrain respondent from wasting
public funds through the enforcement of an invalid or
unconstitutional law. (Philippine Constitution Association vs.
Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution
Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the
institution of a taxpayer's suit, per se is no assurance of judicial
review. As held by this Court in Tan vs. Macapagal (43 SCRA 677
[1972]), speaking through our present Chief Justice, this Court is
vested with discretion as to whether or not a taxpayer's suit
should be entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a wellsettled
rule that the constitutionality of an act of the legislature will not
be determined by the courts unless that question is properly
raised and presented in appropriate cases and is necessary to a
determination of the case; i.e., the issue of constitutionality must
be the very lis mota presented."
TROPANG POTCHI
We have already stated that, by the standards set forth in People
vs. Vera, the present is not an "appropriate case" for either
petitioner Dumlao or for petitioners Igot and Salapantan. They are
actually without cause of action. It follows that the necessity for
resolving the issue of constitutionality is absent, and procedural
regularity would require that this suit be dismissed.
II. The substantive viewpoint.
We have resolved, however, to rule squarely on two of the
challenged provisions, the Courts not being entirely without
discretion in the matter. Thus, adherence to the strict procedural
standard was relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu
vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27
SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases
having been penned by our present Chief Justice. The reasons
which have impelled us are the paramount public interest
involved and the proximity of the elections which will be held only
a few days hence.
Petitioner Dumlao's contention that section 4 of BP Blg. 52 is
discriminatory against him personally is belied by the fact that
several petitions for the disqualification of other candidates for
local positions based on the challenged provision have already
been filed with the COMELEC (as listed in p. 15, respondent's
Comment). This tellingly overthrows Dumlao's contention of
intentional or purposeful discrimination.
The assertion that Section 4 of BP Blg. 52 is contrary to the safer
guard of equal protection is neither well taken. The constitutional
guarantee of equal protection of the laws is subject to rational
classification. If the groupings are based on reasonable and real
differentiations, one class can be treated and regulated differently
from another class. For purposes of public service, employees 65
years of age, have been validly classified differently from younger
employees. Employees attaining that age are subject to
compulsory retirement, while those of younger ages are not so
compulsorily retirable.
In respect of election to provincial, city, or municipal positions, to
require that candidates should not be more than 65 years of age
at the time they assume office, if applicable to everyone, might or
might not be a reasonable classification although, as the Solicitor
General has intimated, a good policy of the law would be to
promote the emergence of younger blood in our political elective
echelons. On the other hand, it might be that persons more than
65 years old may also be good elective local officials.
Coming now to the case of retirees. Retirement from government
service may or may not be a reasonable disqualification for
elective local officials. For one thing, there can also be retirees
171
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
from government service at ages, say below 65. It may neither be
reasonable to disqualify retirees, aged 65, for a 65 year old retiree
could be a good local official just like one, aged 65, who is not a
retiree.
But, in the case of a 65-year old elective local official, who has
retired from a provincial, city or municipal office, there is reason
to disqualify him from running for the same office from which he
had retired, as provided for in the challenged provision. The need
for new blood assumes relevance. The tiredness of the retiree for
government work is present, and what is emphatically significant
is that the retired employee has already declared himself tired
and unavailable for the same government work, but, which, by
virtue of a change of mind, he would like to assume again. It is for
this very reason that inequality will neither result from the
application of the challenged provision. Just as that provision does
not deny equal protection neither does it permit of such denial
(see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated
are sinlilarly treated.
In fine, it bears reiteration that the equal protection clause does
not forbid all legal classification. What is proscribes is a
classification which is arbitrary and unreasonable. That
constitutional guarantee is not violated by a reasonable
classification based upon substantial distinctions, where the
classification is germane to the purpose of the law and applies to
all Chose belonging to the same class (Peralta vs. Comelec, 82
SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael
v. Embroidery and Apparel Control and Inspection Board, 21 SCRA
336 [1967]; Inchong etc., et al. vs. Hernandez 101 Phil. 1155
[1957]). The purpose of the law is to allow the emergence of
younger blood in local governments. The classification in question
being pursuant to that purpose, it cannot be considered invalid
"even it at times, it may be susceptible to the objection that it is
marred by theoretical inconsistencies" (Chief Justice Fernando,
The Constitution of the Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein is a showing of
the clear invalidity of the questioned provision. Well accepted is
the rule that to justify the nullification of a law, there must be a
clear and unequivocal breach of the Constitution, not a doubtful
and equivocal breach. Courts are practically unanimous in the
pronouncement that laws shall not be declared invalid unless the
conflict with the Constitution is clear beyond reasonable doubt
(Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair
4 Dall 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56).
Lastly, it is within the compentence of the legislature to prescribe
qualifications for one who desires to become a candidate for
office provided they are reasonable, as in this case.
In so far as the petition of Igot and Salapantan are concerned, the
second paragraph of section 4 of Batas Pambansa Blg. 52, quoted
in full earlier, and which they challenge, may be divided in two
parts. The first provides:
a. judgment of conviction jor any of the
aforementioned crimes shall be conclusive
evidence of such fact ...
The supremacy of the Constitution stands out as the cardinal
principle. We are aware of the presumption of validity that
attaches to a challenged statute, of the well-settled principle that
"all reasonable doubts should be resolved in favor of
constitutionality," and that Courts will not set aside a statute as
constitutionally defective "except in a clear case." (People vs.
Vera, supra). We are constrained to hold that this is one such
clear case.
Explicit is the constitutional provision that, in all criminal
prosecutions, the accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be heard by
himself and counsel (Article IV, section 19, 1973 Constitution). An
accusation, according to the fundamental law, is not synonymous
with guilt. The challenged proviso contravenes the constitutional
presumption of innocence, as a candidate is disqualified from
running for public office on the ground alone that charges have
been filed against him before a civil or military tribunal. It
condemns before one is fully heard. In ultimate effect, except as
to the degree of proof, no distinction is made between a person
convicted of acts of dislotalty and one against whom charges have
been filed for such acts, as both of them would be ineligible to run
for public office. A person disqualified to run for public office on
the ground that charges have been filed against him is virtually
placed in the same category as a person already convicted of a
crime with the penalty of arresto, which carries with it the
accessory penalty of suspension of the right to hold office during
the term of the sentence (Art. 44, Revised Penal Code).
And although the filing of charges is considered as but prima
facie evidence, and therefore, may be rebutted, yet. there is
"clear and present danger" that because of the proximity of the
elections, time constraints will prevent one charged with acts of
disloyalty from offering contrary proof to overcome the prima
facie evidence against him.
Additionally, it is best that evidence pro and con of acts of
disloyalty be aired before the Courts rather than before an
administrative body such as the COMELEC. A highly possible
conflict of findings between two government bodies, to the
extreme detriment of a person charged, will thereby be avoided.
Furthermore, a legislative/administrative determination of guilt
should not be allowed to be substituted for a judicial
determination.
TROPANG POTCHI
Being infected with constitutional infirmity, a partial declaration
of nullity of only that objectionable portion is mandated. It is
separable from the first portion of the second paragraph of
section 4 of Batas Pambansa Big. 52 which can stand by itself.
WHEREFORE, 1) the first paragraph of section 4 of Batas
pambansa Bilang 52 is hereby declared valid. Said paragraph
reads:
SEC. 4. Special disqualification. — In
addition to violation of Section 10 of Article
XII(C) of the Constitution and
disqualifications mentioned in existing laws
which are hereby declared as
disqualification for any of the elective
officials enumerated in Section 1 hereof,
any retired elective provincial, city or
municipal official, who has received
payment of the retirement benefits to
which he is entitled under the law and who
shall have been 65 years of age at the
commencement of the term of office to
which he seeks to be elected, shall not be
qualified to run for the same elective local
office from which he has retired.
2) That portion of the second paragraph of
section 4 of Batas Pambansa Bilang 52
providing that "... the filing of charges for
the commission of such crimes before a civil
court or military tribunal after preliminary
investigation shall be prima facie evidence
of such fact", is hereby declared null and
void, for being violative of the constitutional
presumption of innocence guaranteed to an
accused.
SO ORDERED.
Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero, JJ.,
concur.
Fernando, C.J., concurs and submits a brief separate opinion.
De Castro, J., abstain as far as petitioner Dumlao is concerned.
172
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC.,
petitioner, vs. HON. FRANKLIN M. DRILON as Secretary of Labor
and Employment, and TOMAS D. ACHACOSO, as Administrator
of the Philippine Overseas Employment Administration,
respondents.
G.R. No. L-81958 | 1988-06-30
DECISION
SARMIENTO, J.:
The petitioner, Philippine Association of Service Exporters, Inc.
(PASEI, for short), a firm "engaged principally in the recruitment of
Filipino workers, male and female, for overseas placement," 1
challenges the Constitutional validity of Department Order No. 1,
Series of 1988, of the Department of Labor and Employment, in
the character of "GUIDELINES GOVERNING THE TEMPORARY
SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND
HOUSEHOLD WORKERS," in this petition for certiorari and
prohibition. Specifically, the measure is assailed for
"discrimination against males or females;" 2 that it "does not
apply to all Filipino workers but only to domestic helpers and
females with similar skills;" 3 and that it is violative of the right to
travel. It is held likewise to be an invalid exercise of the lawmaking
power, police power being legislative, and not executive, in
character.
In its supplement to the petition, PASEI invokes Section 3, of
Article XIII, of the Constitution, providing for worker participation
"in policy and decision-making processes affecting their rights and
benefits as may be provided by law." 4 Department Order No. 1, it
is contended, was passed in the absence of prior consultations. It
is claimed, finally, to be in violation of the Charter's non-
impairment clause, in addition to the "great and irreparable
injury" that PASEI members face should the Order be further
enforced.
On May 25, 1988, the Solicitor General, on behalf of the
respondents Secretary of Labor and Administrator of the
Philippine Overseas Employment Administration, filed a Comment
informing the Court that on March 8, 1988, the respondent Labor
Secretary lifted the deployment ban in the states of Iraq, Jordan,
Qatar, Canada, Hongkong, United States, Italy, Norway, Austria,
and Switzerland. ** In submitting the validity of the challenged
"guidelines," the Solicitor General invokes the police power of the
Philippine State.
It is admitted that Department Order No. 1 is in the nature of a
police power measure. The only question is whether or not it is
valid under the Constitution.
The concept of police power is well-established in this jurisdiction.
It has been defined as the "state authority to enact legislation that
may interfere with personal liberty or property in order to
promote the general welfare." 5 As defined, it consists of (1) an
imposition of restraint upon liberty or property, (2) in order to
foster the common good. It is not capable of an exact definition
but has been, purposely, veiled in general terms to underscore its
all-comprehensive embrace.
"Its scope, ever-expanding to meet the exigencies of the times,
even to anticipate the future where it could be done, provides
enough room for an efficient and flexible response to conditions
and circumstances thus assuring the greatest benefits." 6
It finds no specific Constitutional grant for the plain reason that it
TROPANG POTCHI
does not owe its origin to the Charter. Along with the taxing
power and eminent domain, it is inborn in the very fact of
statehood and sovereignty. It is a fundamental attribute of
government that has enabled it to perform the most vital
functions of governance. Marshall, to whom the expression has
been credited, 7 refers to it succinctly as the plenary power of the
State "to govern its citizens." 8
"The police power of the State . . . is a power coextensive with
self-protection, and it is not inaptly termed the 'law of
overwhelming necessity.' It may be said to be that inherent and
plenary power in the State which enables it to prohibit all things
hurtful to the comfort, safety, and welfare of society." 9
It constitutes an implied limitation on the Bill of Rights. According
to Fernando, it is "rooted in the conception that men in organizing
the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable
an individual citizen or a group of citizens to obstruct
unreasonably the enactment of such salutary measures calculated
to ensure communal peace, safety, good order, and welfare." 10
Significantly, the Bill of Rights itself does not purport to be an
absolute guaranty of individual rights and liberties "Even liberty
itself, the greatest of all rights, is not unrestricted license to act
according to one's will." 11 It is subject to the far more overriding
demands and requirements of the greater number.
Notwithstanding its extensive sweep, police power is not without
its own limitations. For all its awesome consequences, it may not
be exercised arbitrarily or unreasonably. Otherwise, and in that
event, it defeats the purpose for which it is exercised, that is, to
advance the public good. Thus, when the power is used to further
private interests at the expense of the citizenry, there is a clear
misuse of the power. 12
173
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
In the light of the foregoing, the petition must be dismissed.
As a general rule, official acts enjoy a presumed validity. 13 In the
absence of clear and convincing evidence to the contrary, the
presumption logically stands.
The petitioner has shown no satisfactory reason why the
contested measure should be nullified. There is no question that
Department Order No. 1 applies only to "female contract
workers," 14 but it does not thereby make an undue
discrimination between the sexes. It is well-settled that "equality
before the law" under the Constitution 15 does not import a
perfect identity of rights among all men and women. It admits of
classifications, provided that (1) such classifications rest on
substantial distinctions; (2) they are germane to the purposes of
the law; (3) they are not confined to existing conditions; and (4)
they apply equally to all members of the same class. 16
The Court is satisfied that the classification made ---- the
preference for female workers ---- rests on substantial
distinctions.
As a matter of judicial notice, the Court is well aware of the
unhappy plight that has befallen our female labor force abroad,
especially domestic servants, amid exploitative working conditions
marked by, in not a few cases, physical and personal abuse. The
sordid tales of maltreatment suffered by migrant Filipina workers,
even rape and various forms of torture, confirmed by testimonies
of returning workers, are compelling motives for urgent
Government action. As precisely the caretaker of Constitutional
rights, the Court is called upon to protect victims of exploitation.
In fulfilling that duty, the Court sustains the Government's efforts.
TROPANG POTCHI
The same, however, cannot be said of our male workers. In the
first place, there is no evidence that, except perhaps for isolated There is likewise no doubt that such a classification is germane to
instances, our men abroad have been afflicted with an identical the purpose behind the measure. Unquestionably, it is the
predicament. The petitioner has proffered no argument that the avowed objective of Department Order No. 1 to "enhance the
Government should act similarly with respect to male workers. protection for Filipino female overseas workers." 17 This Court
The Court, of course, is not impressing some male chauvinistic has no quarrel that in the midst of the terrible mistreatment
notion that men are superior to women. What the Court is saying Filipina workers have suffered abroad, a ban on deployment will
is that it was largely a matter of evidence (that women domestic be for their own good and welfare.
workers are being ill-treated abroad in massive instances) and not
upon some fanciful or arbitrary yardstick that the Government The Order does not narrowly apply to existing conditions. Rather,
acted in this case. It is evidence capable indeed of unquestionable it is intended to apply indefinitely so long as those conditions
demonstration and evidence this Court accepts. The Court cannot, exist. This is clear from the Order itself ("Pending review of the
however, say the same thing as far as men are concerned. There administrative and legal measures, in the Philippines and in the
is simply no evidence to justify such an inference. Suffice it to host countries . . ." 18), meaning to say that should the authorities
state, then, that insofar as classifications are concerned, this Court arrive at a means impressed with a greater degree of
is content that distinctions are borne by the evidence. permanency, the ban shall be lifted. As a stop-gap measure, it is
Discrimination in this case is justified. possessed of a necessary malleability, depending on the
circumstances of each case. Accordingly, it provides:
As we have furthermore indicated, executive determinations are
generally final on the Court. Under a republican regime, it is the 9. LIFTING OF SUSPENSION. The Secretary of Labor and
executive branch that enforces policy. For their part, the courts Employment (DOLE) may, upon recommendation of the Philippine
decide, in the proper cases, whether that policy, or the manner by Overseas Employment Administration (POEA), lift the suspension
which it is implemented, agrees with the Constitution or the laws, in countries where there are:
but it is not for them to question its wisdom. As a co-equal body,
the judiciary has great respect for determinations of the Chief 1. Bilateral agreements or understanding with the Philippines,
Executive or his subalterns, especially when the legislature itself and/or,
has specifically given them enough room on how the law should
be effectively enforced. In the case at bar, there is no gainsaying 2. Existing mechanisms providing for sufficient safeguards to
the fact, and the Court will deal with this at greater length shortly, ensure the welfare and protection of Filipino workers. 19
that Department Order No. 1 implements the rule-making powers
granted by the Labor Code. But what should be noted is the fact The Court finds, finally, the impugned guidelines to be applicable
that in spite of such a fiction of finality, the Court is on its own to all female domestic overseas workers. That it does not apply to
persuaded that prevailing conditions indeed call for a deployment "all Filipina workers" 20 is not an argument for
ban. unconstitutionality. Had the ban been given universal
174
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
applicability, then it would have been unreasonable and arbitrary.
For obvious reasons, not all of them are similarly circumstanced.
What the Constitution prohibits is the singling out of a select
person or group of persons within an existing class, to the
prejudice of such a person or group or resulting in an unfair
advantage to another person or group of persons. To apply the
ban, say exclusively to workers deployed by A, but not to those
recruited by B, would obviously clash with the equal protection
clause of the Charter. It would be a classic case of what Chase
refers to as a law that "takes property from A and gives it to B." 21
It would be an unlawful invasion of property rights and freedom
of contract and needless to state, an invalid act. 22 (Fernando
says: "Where the classification is based on such distinctions that
make a real difference as infancy, sex, and stage of civilization of
minority groups, the better rule, it would seem, is to recognize its
validity only if the young, the women, and the cultural minorities
are singled out for favorable treatment. There would be an
element of unreasonableness if on the contrary their status that
calls for the law ministering to their needs is made the basis of
discriminatory legislation against them. If such be the case, it
would be difficult to refute the assertion of denial of equal
protection." 23 In the case at bar, the assailed Order clearly
accords protection to certain women workers, and not the
contrary.)
It is incorrect to say that Department Order No. 1 prescribes a
total ban on overseas deployment. From scattered provisions of
the Order, it is evident that such a total ban has not been
contemplated. We quote:
5. AUTHORIZED DEPLOYMENT ---- The deployment of domestic
helpers and workers of similar skills defined herein to the
following [sic] are authorized under these guidelines and are
exempted from the suspension.
5.1 Hirings by immediate members of the family of Heads of State
and Government;
5.2 Hirings by Minister, Deputy Minister and the other senior
government officials; and
5.3 Hirings by senior officials of the diplomatic corps and duly
accredited international organizations.
5.4 Hirings by employers in countries with whom the Philippines
have [sic] bilateral labor agreements or understanding.
xxx xxx xxx
7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR
SKILLS ---- Vacationing domestic helpers and/or workers of similar
skills shall be allowed to process with the POEA and leave for
worksite only if they are returning to the same employer to finish
an existing or partially served employment contract. Those
workers returning to worksite to serve a new employer shall be
covered by the suspension and the provision of these guidelines.
xxx xxx xxx
9. LIFTING OF SUSPENSION ---- The Secretary of Labor and
Employment (DOLE) may, upon recommendation of the Philippine
Overseas Employment Administration (POEA), lift the suspension
in countries where there are:
 
1. Bilateral agreements or understanding with the Philippines,
and/or,
TROPANG POTCHI
2. Existing mechanisms providing for sufficient safeguards to
ensure the welfare and protection of Filipino workers. 24
xxx xxx xxx
The consequence the deployment ban has on the right to travel
does not impair the right. The right to travel is subject, among
other things, to the requirements of "public safety," "as may be
provided by law." 25 Department Order No. 1 is a valid
implementation of the Labor Code, in particular, its basic policy to
"afford protection to labor," 26 pursuant to the respondent
Department of Labor's rule-making authority vested in it by the
Labor Code. 27 The petitioner assumes that it is unreasonable
simply because of its impact on the right to travel, but as we have
stated, the right itself is not absolute. The disputed Order is a
valid qualification thereto.
Neither is there merit in the contention that Department Order
No. 1 constitutes an invalid exercise of legislative power. It is true
that police power is the domain of the legislature, but it does not
mean that such an authority may not be lawfully delegated. As we
have mentioned, the Labor Code itself vests the Department of
Labor and Employment with rule-making powers in the
enforcement whereof. 28
The petitioners's reliance on the Constitutional guaranty of
worker participation "in policy and decision-making processes
affecting their rights and benefits." 29 is not well-taken. The right
granted by this provision, again, must submit to the demands and
necessities of the State's power of regulation.
The Constitution declares that:
Sec 3. The State shall afford full protection to labor, local and
175
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all. 30
"Protection to labor" does not signify the promotion of
employment alone. What concerns the Constitution more
paramountly is that such an employment be above all, decent,
just, and humane. It is bad enough that the country has to send its
sons and daughters to strange lands because it cannot satisfy
their employment needs at home. Under these circumstances, the
Government is duty-bound to insure that our toiling expatriates
have adequate protection, personally and economically, while
away from home. In this case, the Government has evidence, an
evidence the petitioner cannot seriously dispute, of the lack or
inadequacy of such protection, and as part of its duty, it has
precisely ordered an indefinite ban on deployment.
The Court finds furthermore that the Government has not
indiscriminately made use of its authority. It is not contested that
it has in fact removed the prohibition with respect to certain
countries as manifested by the Solicitor General.
The non-impairment clause of the Constitution, invoked by the
petitioner, must yield to the loftier purposes targetted by the
Government.31 Freedom of contract and enterprise, like all other
freedoms, is not free from restrictions, more so in this jurisdiction,
where laissez faire has never been fully accepted as a controlling
economic way of life.
This Court understands the grave implications the questioned
Order has on the business of recruitment. The concern of the
Government, however, is not necessarily to maintain profits of
business firms. In the ordinary sequence of events, it is profits
that suffer as a result of Government regulation. The interest of
the State is to provide a decent living to its citizens. The
TROPANG POTCHI
filed with the Regional Trial Court, Branch 11, Davao City, on
Government has convinced the Court in this case that this is its
September 16, 1992, the trial court issued an Order suspending
intent. We do not find the impugned Order to be tainted with a petitioner until the termination of the case on the basis of Section
grave abuse of discretion to warrant the extraordinary relief 47, R.A. 6975, otherwise known as Department of Interior and
Local Government Act of 1990, which provides:
prayed for.
WHEREFORE, the petition is DISMISSED. No costs. Sec. 47. Preventive Suspension Pending Criminal Case. — Upon
the filing of a complaint or information sufficient in form and
substance against a member of the PNP for grave felonies where
SO ORDERED.
the penalty imposed by law is six (6) years and one (1) day or
more, the court shall immediately suspend the accused from
office until the case is terminated. Such case shall be subject to
continuous trial and shall be terminated within ninety (90) days
from arraignment of the accused (Emphasis ours).
Republic of the Philippines On October 11, 1993, petitioner filed a motion to lift the order for
his suspension, 3relying on Section 42 of P.D. 807 of the Civil
SUPREME COURT Service Decree, that his suspension should be limited to ninety
(90) days and, also, on our ruling in Deloso v. Sandiganbayan,
Manila 4and Layno v. Sandiganbayan. 5In his order dated December 14,
1993 6respondent judge denied the motion pointing out that
under Section 47 of R.A. 6975, the accused shall be suspended
from office until his case is terminated. The motion for
EN BANC reconsideration of the order of denial was, likewise, denied.
7Hence, the petition for certiorari and mandamus to set aside the
orders of respondent Judge and to command him to lift
petitioner’s preventive suspension.
G.R. No. 113811 October 7, 1994
We find the petition devoid of merit.
ISHMAEL HIMAGAN, petitioner,
There is no question that the case of petitioner who is charged
vs.
with murder and attempted murder under the Revised Penal Code
falls squarely under Sec. 47 of RA 6975 which specifically applies
PEOPLE OF THE PHILIPPINES and HON. JUDGE HILARIO MAPAYO,
to members of the PNP. In dispute however, is whether the
RTC, Br. 11, Davao City, respondents.
provision limits the period of suspension to 90 days, considering
Victorio S. Advincula for petitioner. that while the first sentence of Sec. 47 provides that the accused
who is charged with grave felonies where the penalty imposed is
KAPUNAN, J.: six (6) years and one (1) day shall be suspended from office “until
the case is terminated”, the second sentence of the same section
Petitioner, a policeman assigned with the medical company of the mandates that the case, which shall be subject to continuous trial,
Philippine National Police Regional Headquarters at Camp shall be terminated within 90 days from the arraignment of the
Catitigan, Davao City, was implicated in the killing of Benjamin accused.
Machitar, Jr. and the attempted murder of Bernabe Machitar.
After the informations for murder 1and attempted murder 2were
176
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Petitioner posits that as a member of the Philippine National
Police, under Sec. 91 of RA 6975 which reads:
Sec. 91. The Civil Service Law and its implementing rules and
regulations shall apply to all personnel of the Department.
he is covered by the Civil Service Law, particularly Sec. 42 of PD
807 of the Civil Service Decree, which limits the maximum period
of suspension to ninety (90) days, thus:
Sec. 42. Lifting of Preventive Suspension Pending Administrative
Investigation. — When the administrative case against the officer
or employee under preventive suspension is not finally decided by
the disciplining authority within the period of ninety (90) days
after the date of suspension of the respondent who is not a
presidential appointee, the respondent shall be automatically
reinstated in the service; Provided, That when the delay in the
disposition of the case is due to the fault, negligence or petition of
the respondent, the period of delay shall not be counted in
computing the period of suspension herein provided.
He claims that an imposition of preventive suspension of over 90
days is contrary to the Civil Service Law and would be a violation
of his constitutional right to equal protection of laws. He further
asserts that the requirements in Sec. 47 of R.A. 6975 that “the
court shall immediately suspend the accused from office until the
case is terminated” and the succeeding sentence, “Such case shall
be subject to continuous trial and shall be terminated within
ninety (90) days from arraignment of the accused” are both
substantive and should be taken together to mean that if the case
is not terminated within 90 days, the period of preventive
suspension must be lifted because of the command that the trial
must be terminated within ninety (90) days from arraignment.
We disagree.
First. The language of the first sentence of Sec. 47 of R.A. 6975 is
clear, plain and free from ambiguity. It gives no other meaning
than that the suspension from office of the member of the PNP
charged with grave offense where the penalty is six years and one
day or more shall last until the termination of the case. The
suspension cannot be lifted before the termination of the case.
The second sentence of the same Section providing that the trial
must be terminated within ninety (90) days from arraignment
does not qualify or limit the first sentence. The two can stand
independently of each other. The first refers to the period of
suspension. The second deals with the time frame within which
the trial should be finished.
Suppose the trial is not terminated within ninety days from
arraignment, should the suspension of accused be lifted? The
answer is certainly no. While the law uses the mandatory word
“shall” before the phrase “be terminated within ninety (90) days”,
there is nothing in R.A. 6975 that suggests that the preventive
suspension of the accused will be lifted if the trial is not
terminated within that period. Nonetheless, the Judge who fails
to decide the case within the period without justifiable reason
may be subject to administrative sanctions and, in appropriate
cases where the facts so warrant, to criminal 8or civil liability. 9 If
the trial is unreasonably delayed without fault of the accused such
that he is deprived of his right to a speedy trial, he is not without a
remedy. He may ask for the dismissal of the case. Should the
court refuse to dismiss the case, the accused can compel its
dismissal by certiorari, prohibition or mandamus, or secure his
liberty by habeas corpus. 10
Second. Petitioner misapplies Sec. 42 of PD 807. A meticulous
reading of the section clearly shows that it refers to the lifting of
preventive suspension in pending administrative investigation, not
in criminal cases, as here. What is more, Section 42 expressly
limits the period of preventive suspension to ninety (90) days. Sec.
91 of R.A. 6975 which states that “The Civil Service Law and its
implementing rules shall apply to all personnel of the
Department” simply means that the provisions of the Civil Service
Law and its implementing rules and regulations are applicable to
members of the Philippine National Police insofar as the
provisions, rules and regulations are not inconsistent with R.A.
6975. Certainly, Section 42 of the Civil Service Decree which limits
the preventive suspension to ninety (90) days cannot apply to
members of the PNP because Sec. 47 of R.A. 6995 provides
differently, that is, the suspension where the penalty imposed by
law exceeds six (6) years shall continue until the case is
terminated.
Third. Petitioner’s reliance on Layno and Deloso is misplaced.
These cases all stemmed from charges in violation of R.A. 3019
TROPANG POTCHI
(1060), otherwise known as the Anti-Graft and Corrupt Practices
Act which, unlike R.A. 6975, is silent on the duration of the
preventive suspension. Sec. 13 of R.A. 3019 reads as follows:
Suspension and loss of benefits. — Any public officer against
whom any criminal prosecution under a valid information under
this Act or under the provisions of the Revised Penal Code on
bribery is pending in court, shall be suspended from office. Should
he be convicted by final judgment, he shall lose all retirement or
gratuity benefits under any law, but if he is acquitted, he shall be
entitled to reinstatement and to the salaries and benefits which
he failed to receive during suspension, unless in the meantime
administrative proceedings have been filed against him.
In the case of Layno, the duly elected mayor of Lianga, Surigao del
Sur, was preventively suspended after an information was filed
against him for offenses under R.A. 3019 (1060), the Anti-Graft
Corrupt Practices Act. He had been suspended for four (4) months
at the time he filed a motion to lift his preventive suspension. We
held that his indefinite preventive suspension violated the “equal
protection clause” and shortened his term of office. Thus:
2. Petitioner is a duly elected municipal mayor of Lianga, Surigao
del Sur. His term of office does not expire until 1986. Were it not
for this information and the suspension decreed by the
Sandiganbayan according to the Anti-Graft and Corrupt Practices
Act, he would have been all this while in the full discharge of his
functions as such municipal mayor. He was elected precisely to do
so. As of October 26, 1983, he has been unable to. It is a basic
assumption of the electoral process implicit in the right of suffrage
that the people are entitled to the services of elective officials of
their choice. For misfeasance or malfeasance, any of them could,
of course, be proceeded against administratively or, as in this
instance, criminally. In either case, his culpability must be
established. Moreover, if there be a criminal action, he is entitled
to the constitutional presumption of innocence. A preventive
suspension may be justified. Its continuance, however, for an
unreasonable length of time raises a due process question. For
even if thereafter he were acquitted, in the meanwhile his right to
hold office had been nullified. Clearly, there would be in such a
case an injustice suffered by him. Nor is he the only victim. There
is injustice inflicted likewise on the people of Lianga. They were
deprived of the services of the man they had elected to serve as
mayor. In that sense, to paraphrase Justice Cardozo, the
protracted continuance of this preventive suspension had outrun
the bounds of reason and resulted in sheer oppression. A denial of
due process is thus quite manifest. It is to avoid such an
177
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
unconstitutional application that the order of suspension should
be lifted.
3. Nor is it solely the denial of procedural due process that is
apparent. There is likewise an equal protection question. If the
case against petitioner Layno were administrative in character the
Local Government Code would be applicable. It is therein clearly
provided that while preventive suspension is allowable for the
causes therein enumerated, there is this emphatic limitation on
the duration thereof: “In all cases, preventive suspension shall not
extend beyond sixty days after the start of said suspension.” It
may be recalled that the principle against indefinite suspension
applies equally to national government officials. So it was held in
the leading case of Garcia v. Hon. Executive Secretary. According
to the opinion of Justice Barrera: “To adopt the theory of
respondents that an officer appointed by the President, facing
administrative charges, can be preventively suspended
indefinitely, would be to countenance a situation where the
preventive suspension can, in effect, be the penalty itself without
a finding of guilt after due hearing, contrary to the express
mandate of the Constitution and the Civil Service law.” Further:
“In the guise of a preventive suspension, his term of office could
be shortened and he could in effect, be removed without a finding
of a cause duly established after due hearing, in violation of the
Constitution. Clearly then, the policy of the law mandated by the
Constitution frowns at a suspension of indefinite duration. In this
particular case, the mere fact that petitioner is facing a charge
under the Anti-Graft and Corrupt Practices Act does not justify a
different rule of law. To do so would be to negate the safeguard of
the equal protection guarantee. 11
The case of Deloso, likewise, involved another elective official who
was preventively suspended as provincial governor, also under RA
3019 the Anti-Graft Law. This Court, faced with similar factual
circumstances as in Layno, applied the ruling in the latter case “in
relation to the principles of due process and equal protection.”
It is readily apparent that Section 13 of R.A. 3019 upon which the
preventive suspension of the accused in Layno and Deloso was
based is silent with respect to the duration of the preventive
suspension, such that the suspension of the accused therein for a
prolonged and unreasonable length of time raised a due process
question. Not so in the instant case. Petitioner is charged with
murder under the Revised Penal Code and it is undisputed that he
falls squarely under Sec. 47 of R.A. 6975 which categorically states
that his suspension shall last until the case is terminated. The
succeeding sentence of the same section requires the case to be
TROPANG POTCHI
subjected to continuous trial which shall be terminated within THE CHAIRMAN (SEN. MACEDA). Hindi, dahil iyong iba panay
ninety (90) days from arraignment of the accused. As previously disciplinary iyon e.
emphasized, nowhere in the law does it say that after the lapse of
the 90-day period for trial, the preventive suspension should be SEN. PIMENTEL. Anong page iyan, Rene?
lifted. The law is clear, the ninety (90) days duration applies to the
trial of the case not to the suspension. Nothing else should be THE CHAIRMAN (SEN. MACEDA). Page 29 — Preventive
read into the law. When the words and phrases of the statute are Suspension.
clear and unequivocal, their meaning determined from the
language employed and the statute must be taken to mean REP. GUTANG. Ang complaint kasi ng mga tao, pagka may pulis na
exactly what it says. 12 may criminal case at may baril pa rin at nag-uuniforme, hindi
magandang tingnan e. So parang natatakot iyong mga witnesses.
Fourth. From the deliberations of the Bicameral Conference
Committee on National Defense relative to the bill that became SEN. GONZALES. Anyway, kung ma-exempt na rito naman siya e.
R.A. 6975, the meaning of Section 47 of R.A. 6975 insofar as the
REP. GUTANG. Mayroong entitlement to reinstatement and
period of suspension is concerned becomes all the more clear. We
pay. . . .
quote:
xxx xxx xxx
So other than that in that particular section, ano ba itong
“Jurisdiction in Criminal Cases?” What is this all about?
SEN. PIMENTEL. Dito sa “Preventive Suspension Pending Criminal
Case.” Okay ito but I think we should also mandate the early
REP. ZAMORA. In case they are charged with crimes.
termination of the case. Ibig sabihin, okay, hindi ba “the
THE CHAIRMAN (SEN. MACEDA). Ah, the previous one is suspension of the accused from office until the case is
administrative, no. Now, if it is charged with a crime, regular terminated?” Alam naman natin ang takbo ng mga kaso rito sa
courts. ating bansa e.
REP. ZAMORA. Twenty days, okay na.
SEN. GONZALES. Ano, the courts mismo ang magsasabing . . .
SEN. PIMENTEL. Hindi, and ibig kong sabihin, let us just assume
THE CHAIRMAN (SEN. MACEDA). No, the jurisdiction.
that a case can be, as Rene pointed out, can run to six years bago
REP. ZAMORA. The jurisdiction if there is robbery.
ma-terminate, sometimes ten years pa nga e. Okay, but maybe
we should mandate. . .
THE CHAIRMAN (SEN. MACEDA). Okay. “Preventive Suspension
Pending Criminal Case. Upon the filing of a complaint or
REP. ZAMORA. Continuous hearing.
informations sufficient in form and substance against a member
of the PNP for grave felonies where the penalty imposed by law is
SEN. PIMENTEL. Not only that, but the case must be terminated
six years and one day or more, the court shall immediately
within a period.
suspend the accused from the office until the case is terminated.”
REP. ALBANO. Ninety days na ho sa Supreme Court the trial.
REP. ALBANO. Where are we now Mr. Chairman.
SEN. PIMENTEL. Ha?
THE CHAIRMAN (SEN. MACEDA). Grave felonies ito e. Six years
and one day or more.
REP. ALBANO. The trial must be done within ninety days,
SEN. SAGUISAG. Kung five years and litigation ng Supreme Court,
SEN. PIMENTEL. Ang ibig kong sabihin kung maari sanang ilagay
ganoon ba and . . .?
rito that the case shall also be terminated in one year from the
time . . . aywan ko kung kaya nating gawin iyon.
178
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
REP. ALBANO. One solution, Mr. Chairman.
THE CHAIRMAN (SEN. MACEDA). Criminal case? Hindi ba that has
all been held as directory even if you put it in the law?
SEN. PIMENTEL. I know, but, iyon na nga, we are looking at some
solution to a particular situation.
SEN. ANGARA. Let’s have continuous hearing and be terminated
not later than ninety days.
REP. ZAMORA. Ang point ni Ernie, that’s really only the directory.
All of these, well, looks exactly the same thing.
SEN. ANGARA. No, but at least, we will shorten it up in a case like
this. We are really keen on having it quick, swift.
SEN. PIMENTEL. Swift justice.
REP. ALBANO. Mr. Chairman.
THE CHAIRMAN. (SEN. MACEDA). Yes.
REP. ALBANO. Following the Veloso case in Anti-graft cases before
the Sandiganbayan, the preventive suspension is only ninety days.
In no case shall it go beyond ninety days which can also be
applicable here because this is a preventive suspension.
SEN. PIMENTEL. No, because you can legislate at least.
SEN. SAGUISAG. But then the case may be anti-graft ha. The case
filed against a policeman may be anti-graft in nature. . .
SEN. PIMENTEL. Correct, correct, but is that a constitutional
provision? Is it?
REP. ALBANO. No, but as a standard procedure.
SEN. PIMENTEL. Then you can legislate.
THE CHAIRMAN (SEN. MACEDA). No, because this particular
provision is for criminal cases. I know anti-graft is a criminal case
but here we are talking, let’s say, of murder, rape, treason,
robbery. That’s why it is in that context that there is a difference
between a purely anti-graft case and a criminal case which could
be a serious case since it is six years and one day or more, so it
must be already a grave felony.
xxx xxx xxx
REP. ALBANO. . . .
What I mean to say is, preventive suspension, we can use the
Veloso case.
THE CHAIRMAN (SEN. MACEDA). No, that’s too short, that’s what I
am saying. The feeling here is, for policeman, we have to be
stricter especially if it is a criminal case.
What Rene is just trying to say is, he is agreeable that the
suspension is until the case is terminated, but he just wants some
administrative balancing to expedite it. So let us study what kind
of language could be done along that line. So just on the National
Police Commission . . .
SEN. ANGARA. Can I suggest a language that may reflect. . .
THE CHAIRMAN (SEN. MACEDA). Okay, please.
SEN. ANGARA. “Such case shall be subject to continuous trial and
be terminated not later than . . .” whatever we agree.
THE CHAIRMAN (SEN. MACEDA). Okay, so let’s study that.
So if there are any further amendments to Chapter 2 on the
National Police Commission. . . . . . 13
The foregoing discussions reveal the legislative intent to place on
preventive suspension a member of the PNP charged with grave
felonies where the penalty imposed by law exceeds six years of
imprisonment and which suspension continues until the case
against him is terminated.
The reason why members of the PNP are treated differently from
the other classes of persons charged criminally or administratively
insofar as the application of the rule on preventive suspension is
concerned is that policemen carry weapons and the badge of the
law which can be used to harass or intimidate witnesses against
them, as succinctly brought out in the legislative discussions.
If a suspended policeman criminally charged with a serious
offense is reinstated to his post while his case is pending, his
victim and the witnesses against him are obviously exposed to
constant threat and thus easily cowed to silence by the mere fact
that the accused is in uniform and armed. The imposition of
preventive suspension for over 90 days under Section 47 of R.A.
TROPANG POTCHI
6975 does not violate the suspended policeman’s constitutional
right to equal protection of the laws.
The equal protection clause exists to prevent undue favor or
privilege. It is intended to eliminate discrimination and oppression
based on inequality. Recognizing the existence of real differences
among men, the equal protection clause does not demand
absolute equality. It merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to
the privileges conferred and liabilities enforced. 14Thus, the equal
protection clause does not absolutely forbid classifications, such
as the one which exists in the instant case. If the classification is
based on real and substantial differences; 15 is germane to the
purpose of the law; 16applies to all members of the same class;
17 and applies to current as well as future conditions, 18the
classification may not be impugned as violating the Constitution’s
equal protection guarantee. A distinction based on real and
reasonable considerations related to a proper legislative purpose
such as that which exists here is neither unreasonable, capricious
nor unfounded.
ACCORDINGLY, the petition is hereby DISMISSED.
SO ORDERED.
Narvasa, C.J., Cruz, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Quiason, Puno, Vitug and Mendoza, JJ., concur.
Feliciano, Padilla and Bidin, JJ., are on leave.
EN BANC
 
ELEAZAR P. QUINTO and   G.R
GERINO A. TOLENTINO, JR.,    
Petitioners,      Pre
   
  PU
  CA
  CO
  CA
  CH
  VE
                 - versus - NA
  LE
  BR
  PE
  BE
  DE
179
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
 
EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER
 
  PURPOSES.” Section 11 thereof reads:
COMMISSION ON ELECTIONS,  
Respondent. SEC. 11. Official Ballot.—The
Commission shall prescribe the size and
x-------------------------------------------------------------------------------------- form of the official ballot which shall
---x contain the titles of the positions to be filled
  and/or the propositions to be voted upon in
  an initiative, referendum or plebiscite.
DECISION Under each position, the names of
  candidates shall be arranged alphabetically
NACHURA, J.: by surname and uniformly printed using the
  same type size. A fixed space where the
  chairman of the Board of Election
inspectors shall affix his/her signature to
“In our predisposition to discover the ‘original intent’
authenticate the official ballot shall be
of a statute, courts become the unfeeling pillars of the status quo. provided.
 
Little do we realize that statutes or even constitutions are bundles
Both sides of the ballots may be
of compromises thrown our way by their framers. Unless we used when necessary.
 
exercise vigilance, the statute may already be out of tune and For this purpose, the deadline
irrelevant to our day.”[1] It is in this light that we should address for the filing of certificate of
candidacy/petition for
the instant case. registration/manifestation to participate in
  the election shall not be later than one
Before the Court is a petition for prohibition hundred twenty (120) days before the
elections:  Provided, That, any elective
and certiorari, with prayer for the issuance of a temporary official, whether national or local, running
for any office other than the one which
restraining order and a writ of preliminary injunction, assailing
he/she is holding in a permanent capacity,
Section 4(a) of Resolution No. 8678 of the Commission on except for president and vice president,
shall be deemed resigned only upon the
Elections (COMELEC). In view of pressing contemporary events,
start of the campaign period
the petition begs for immediate resolution. corresponding to the position for which
  he/she is running: Provided, further, That,
unlawful acts or omissions applicable to a
The Antecedents
candidate shall take effect upon the start
of the aforesaid campaign
This controversy actually stems from the law period: Provided, finally, That, for purposes
of the May 11, 1998 elections, the deadline
authorizing the COMELEC to use an automated election system for filing of the certificate of candidacy for
(AES). the positions of President, Vice President,
Senators and candidates under the Party-
List System as well as petitions for
On December 22, 1997, Congress enacted Republic Act registration and/or manifestation to
participate in the Party-List System shall be
(R.A.) No. 8436, entitled “AN ACT AUTHORIZING THE
on February 9, 1998 while the deadline for
COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION the filing of certificate of candidacy for
other positions shall be on March 27, 1998.
SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS
AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL The official ballots shall be
printed by the National Printing Office
TROPANG POTCHI
and/or the Bangko Sentral ng Pilipinas at
the price comparable with that of private
printers under proper security measures
which the Commission shall adopt. The
Commission may contract the services of
private printers upon certification by the
National Printing Office/Bangko Sentral ng
Pilipinas that it cannot meet the printing
requirements. Accredited political parties
and deputized citizens' arms of the
Commission may assign watchers in the
printing, storage and distribution of official
ballots.
 
To prevent the use of fake
ballots, the Commission through the
Committee shall ensure that the serial
number on the ballot stub shall be printed
in magnetic ink that shall be easily
detectable by inexpensive hardware and
shall be impossible to reproduce on a
photocopying machine and that
identification marks, magnetic strips, bar
codes and other technical and security
markings, are provided on the ballot.
 
The official ballots shall be
printed and distributed to each
city/municipality at the rate of one (1)
ballot for every registered voter with a
provision of additional four (4) ballots per
precinct.[2]
 
 
Almost a decade thereafter, Congress amended the
law on January 23, 2007 by enacting R.A. No. 9369, entitled “AN
ACT AMENDING REPUBLIC ACT NO. 8436, ENTITLED ‘AN ACT
AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN
AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL
OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND
LOCAL ELECTORAL EXERCISES, TO ENCOURAGE TRANSPARENCY,
CREDIBILITY, FAIRNESS AND ACCURACY OF ELECTIONS,
AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG. 881, AS
AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED
ELECTION LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER
PURPOSES.’” Section 13 of the amendatory law modified Section
11 of R.A. No. 8436, thus:
180
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
 
SEC. 13. Section 11 of Republic
Act No. 8436 is hereby amended to read as
follows:
 
“Section 15. Official Ballot.—The
Commission shall prescribe the format of
the electronic display and/or the size and
form of the official ballot, which shall
contain the titles of the position to be filled
and/or the propositions to be voted upon in
an initiative, referendum or plebiscite.
Where practicable, electronic displays must
be constructed to present the names of all
candidates for the same position in the
same page or screen, otherwise, the
electronic displays must be constructed to
present the entire ballot to the voter, in a
series of sequential pages, and to ensure
that the voter sees all of the ballot options
on all pages before completing his or her
vote and to allow the voter to review and
change all ballot choices prior to completing
and casting his or her ballot. Under each
position to be filled, the names of
candidates shall be arranged alphabetically
by surname and uniformly indicated using
the same type size. The maiden or married
name shall be listed in the official ballot, as
preferred by the female candidate. Under
each proposition to be vote upon, the
choices should be uniformly indicated using
the same font and size.
 
“A fixed space where the
chairman of the board of election
inspectors shall affix his/her signature to
authenticate the official ballot shall be
provided.
 
“For this purpose, the
Commission shall set the deadline for the
filing of certificate of candidacy/petition of
registration/manifestation to participate in
the election. Any person who files his
certificate of candidacy within this period
shall only be considered as a candidate at
the start of the campaign period for which
he filed his certificate of
candidacy: Provided, That, unlawful acts or
omissions applicable to a candidate shall
take effect only upon the start of the
aforesaid campaign period: Provided,
finally, That any person holding a public
appointive office or position, including
active members of the armed forces, and
officers and employees in government-
owned or -controlled corporations, shall be
considered ipso facto resigned from
his/her office and must vacate the same at
the start of the day of the filing of his/her
certificate of candidacy.
 
 
 
 
“Political parties may hold
political conventions to nominate their
official candidates within thirty (30) days
before the start of the period for filing a
certificate of candidacy.
 
“With respect to a paper-based
election system, the official ballots shall be
printed by the National Printing Office
and/or the Bangko Sentral ng Pilipinas at
the price comparable with that of private
printers under proper security measures
which the Commission shall adopt. The
Commission may contract the services of
private printers upon certification by the
National Printing Office/Bangko Sentral ng
Pilipinas that it cannot meet the printing
requirements. Accredited political parties
and deputized citizens’ arms of the
Commission shall assign watchers in the
printing, storage and distribution of official
ballots.
 
“To prevent the use of fake
ballots, the Commission through the
Committee shall ensure that the necessary
safeguards, such as, but not limited to, bar
codes, holograms, color shifting ink,
microprinting, are provided on the ballot.
“The official ballots shall be
printed and distributed to each
city/municipality at the rate of one ballot
for every registered voter with a provision
of additional three ballots per precinct.”[3]
 
 
Pursuant to its constitutional mandate to enforce and
administer election laws, COMELEC issued Resolution No. 8678,
[4]
 the Guidelines on the Filing of Certificates of Candidacy (CoC)
TROPANG POTCHI
and Nomination of Official Candidates of Registered Political
Parties in Connection with the May 10, 2010 National and Local
Elections. Sections 4 and 5 of Resolution No. 8678 provide:
 
SEC. 4. Effects of Filing
Certificates of Candidacy.—a) Any person
holding a public appointive office or
position including active members of the
Armed Forces of the Philippines, and other
officers and employees in government-
owned or controlled corporations, shall be
considered ipso facto resigned from his
office upon the filing of his certificate of
candidacy.
 
b) Any person holding an
elective office or position shall not be
considered resigned upon the filing of his
certificate of candidacy for the same or any
other elective office or position.
 
SEC. 5. Period for filing
Certificate of Candidacy.—The certificate of
candidacy shall be filed on regular days,
from November 20 to 30, 2009, during
office hours, except on the last day, which
shall be until midnight.
 
Alarmed that they will be deemed ipso facto resigned
from their offices the moment they file their CoCs, petitioners
Eleazar P. Quinto and Gerino A. Tolentino, Jr., who hold
appointive positions in the government and who intend to run in
the coming elections,[5] filed the instant petition for prohibition
andcertiorari, seeking the declaration of the afore-quoted Section
4(a) of Resolution No. 8678 as null and void.
The Petitioners’ Contention
Petitioners contend that the COMELEC gravely abused
its discretion when it issued the assailed Resolution. They aver
that the advance filing of CoCs for the 2010 elections is intended
merely for the purpose of early printing of the official ballots in
order to cope with time limitations. Such advance filing does not
automatically make the person who filed the CoC a candidate at
181
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
the moment of filing. In fact, the law considers him a candidate
only at the start of the campaign period. Petitioners then assert
that this being so, they should not be deemed ipso facto resigned
from their government offices when they file their CoCs, because
at such time they are not yet treated by law as candidates. They
should be considered resigned from their respective offices only
at the start of the campaign period when they are, by law, already
considered as candidates.[6]
 
Petitioners also contend that Section 13 of R.A. No.
9369, the basis of the assailed COMELEC resolution, contains two
conflicting provisions. These must be harmonized or reconciled to
give effect to both and to arrive at a declaration that they are
not ipso facto resigned from their positions upon the filing of their
[7]
CoCs.
 
Petitioners further posit that the provision considering
them as ipso facto resigned from office upon the filing of their
CoCs is discriminatory and violates the equal protection clause in
[8]
the Constitution.
The Respondent’s Arguments
 
          On the procedural aspect of the petition, the Office of the
Solicitor General (OSG), representing respondent COMELEC,
argues that petitioners have no legal standing to institute the
suit.  Petitioners have not yet filed their CoCs, hence, they are not
yet affected by the assailed provision in the COMELEC resolution.
The OSG further claims that the petition is premature or unripe
for judicial determination.  Petitioners have admitted that they
are merely planning to file their CoCs for the coming 2010
elections. Their interest in the present controversy is thus merely
speculative and contingent upon the filing of the same. The OSG
likewise contends that petitioners availed of the wrong remedy.
They are questioning an issuance of the COMELEC made in the
exercise of the latter’s rule-making power. Certiorari under Rule
[9]
65 is then an improper remedy.
          On the substantive aspect, the OSG maintains that the
COMELEC did not gravely abuse its discretion in phrasing Section
4(a) of Resolution No. 8678 for it merely copied what is in the law.
The OSG, however, agrees with petitioners that there is a conflict
in Section 13 of R.A. No. 9369 that should be resolved. According
to the OSG, there seems to be no basis to consider appointive
officials as ipso facto resigned and to require them to vacate their
positions on the same day that they file their CoCs, because they
are not yet considered as candidates at that time. Further, this
“deemed resigned” provision existed in Batas Pambansa
Bilang (B.P. Blg.) 881, and no longer finds a place in our present
election laws with the innovations brought about by the
automated system.[10]
 
Our Ruling
I.
At first glance, the petition suffers from an incipient
procedural defect. What petitioners assail in their petition is a
resolution issued by the COMELEC in the exercise of its quasi-
legislative power. Certiorari under Rule 65, in relation to Rule 64,
cannot be availed of, because it is a remedy to question decisions,
resolutions and issuances made in the exercise of a judicial or
[11]
quasi-judicial function.  Prohibition is also an inappropriate
remedy, because what petitioners actually seek from the Court is
a determination of the proper construction of a statute and a
declaration of their rights thereunder. Obviously, their petition is
[12]
one for declaratory relief,  over which this Court does not
[13]
exercise original jurisdiction.
 
However, petitioners raise a challenge on the
constitutionality of the questioned provisions of both the
TROPANG POTCHI
COMELEC resolution and the law. Given this scenario, the Court
may step in and resolve the instant petition. 
The transcendental nature and paramount importance
of the issues raised and the compelling state interest involved in
their early resolution—the period for the filing of CoCs for the
2010 elections has already started and hundreds of civil servants
intending to run for elective offices are to lose their employment,
thereby causing imminent and irreparable damage to their means
of livelihood and, at the same time, crippling the government’s
manpower—further dictate that the Court must, for propriety, if
only from a sense of obligation, entertain the petition so as to
expedite the adjudication of all, especially the constitutional,
issues.
In any event, the Court has ample authority to set
aside errors of practice or technicalities of procedure and resolve
the merits of a case. Repeatedly stressed in our prior decisions is
the principle that the Rules were promulgated to provide
guidelines for the orderly administration of justice, not to shackle
the hand that dispenses it. Otherwise, the courts would be
consigned to being mere slaves to technical rules, deprived of
their judicial discretion.[14]
II.
 
To put things in their proper perspective, it is
imperative that we trace the brief history of the assailed
provision. Section 4(a) of COMELEC Resolution No. 8678 is a
reproduction of the second proviso in the third paragraph of
Section 13 of R.A. No. 9369, which for ready reference is quoted
as follows:
 
For this purpose, the
Commission shall set the deadline for the
filing of certificate of candidacy/petition for
registration/manifestation to participate in
the election. Any person who files his
certificate of candidacy within this period
182
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
shall only be considered as a candidate at
the start of the campaign period for which
he filed his certificate of
candidacy: Provided, That, unlawful acts or
omissions applicable to a candidate shall
take effect only upon the start of the
aforesaid campaign period: Provided,
finally, That any person holding a public
appointive office or position, including
active members of the armed forces, and
officers and employees in government-
owned or -controlled corporations, shall be
considered ipso facto resigned from
his/her office and must vacate the same at
the start of the day of the filing of his/her
certificate of candidacy.[15]
 
Notably, this proviso is not present in Section 11 of
R.A. No. 8436, the law amended by R.A. No. 9369. The proviso
was lifted from Section 66 ofB.P. Blg. 881 or the Omnibus Election
Code (OEC) of the Philippines, which reads:
 
Sec. 66. Candidates holding
appointive office or position.—Any person
holding a public appointive office or
position, including active members of the
Armed Forces of the Philippines, and
officers and employees in government-
owned or controlled corporations, shall be
considered ipso facto resigned from his
office upon the filing of his certificate of
candidacy.
 
 
It may be recalled—in inverse chronology—that
earlier, Presidential Decree No. 1296, or the 1978 Election Code,
contained a similar provision, thus—
 
SECTION 29. Candidates holding
appointive office or position. — Every
person holding a public appointive office or
position, including active members of the
Armed Forces of the Philippines, and
officers and employees in government-
owned or controlled corporations, shall ipso
facto cease in his office or position on the
date he files his certificate of candidacy.
Members of the Cabinet shall continue in
the offices they presently hold
notwithstanding the filing of certificate of
candidacy, subject to the pleasure of the
President of the Philippines.
 
 
Much earlier, R.A. No. 6388, or the Election Code of
1971, likewise stated in its Section 23 the following:
 
SECTION 23. Candidates Holding
Appointive Office or Position. — Every
person holding a public appointive office or
position, including active members of the
Armed Forces of the Philippines and every
officer or employee in government-owned
or controlled corporations, shall ipso
facto cease in his office or position on the
date he files his certificate of candidacy:
Provided, That the filing of a certificate of
candidacy shall not affect whatever civil,
criminal or administrative liabilities which
he may have incurred.
Going further back in history, R.A. No. 180, or the
Revised Election Code approved on June 21, 1947, also provided
that—
SECTION 26. Automatic cessation
of appointive officers and employees who
are candidates. — Every person holding a
public appointive office or position
shall ipso facto cease in his office or position
on the date he files his certificate of
candidacy.
 
During the Commonwealth era, Commonwealth Act
(C.A.) No. 725, entitled “AN ACT TO PROVIDE FOR THE NEXT
ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE
PHILIPPINES, SENATORS AND MEMBERS OF THE HOUSE OF
REPRESENTATIVES, AND APPROPRIATING THE NECESSARY FUNDS
THEREFOR,” approved on January 5, 1946, contained, in the last
paragraph of its Section 2, the following:
 
A person occupying any civil office by
appointment in the government or any of
its political subdivisions or agencies or
government-owned or controlled
TROPANG POTCHI
corporations, whether such office by
appointive or elective, shall be considered
to have resigned from such office from the
moment of the filing of such certificate of
candidacy.
 
Significantly, however, C.A. No. 666, entitled “AN ACT TO
PROVIDE FOR THE FIRST ELECTION FOR PRESIDENT AND VICE-
PRESIDENT OF THE PHILIPPINES, SENATORS, AND MEMBERS OF
THE HOUSE OF REPRESENTATIVES, UNDER THE CONSTITUTION
AND THE AMENDMENTS THEREOF,” enacted without executive
approval on June 22, 1941, the precursor of C.A. No. 725, only
provided for automatic resignation of elective, but not appointive,
officials.
 
Nevertheless, C.A. No. 357, or the Election Code
approved on August 22, 1938, had, in its Section 22, the same
verbatim provision as Section 26 of R.A. No. 180.
 
The earliest recorded Philippine law on the subject is
Act No. 1582, or the Election Law enacted by the Philippine
Commission in 1907, the last paragraph of Section 29 of which
reads:
Sec. 29. Penalties upon officers.
— x x x.
No public officer shall offer
himself as a candidate for election, nor shall
he be eligible during the time that he holds
said public office to election, at any
municipal, provincial or Assembly election,
except for reelection to the position which
he may be holding, and no judge of the
Court of First Instance, justice of the peace,
provincial fiscal, or officer or employee of
the Bureau of Constabulary or of the
Bureau of Education shall aid any candidate
or influence in any manner or take any part
in any municipal, provincial, or Assembly
election under penalty of being deprived of
his office and being disqualified to hold any
public office whatever for a term of five
years: Provided, however, That the
foregoing provisions shall not be construed
183
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
to deprive any person otherwise qualified
of the right to vote at any election.
 
 
From this brief historical excursion, it may be gleaned
that the second proviso in the third paragraph of Section 13 of
R.A. No. 9369—that any person holding a public appointive office
or position, including active members of the armed forces, and
officers, and employees in government-owned or controlled
Defensor-Santiago expressed her concern over the inclusion of
corporations, shall be considered ipso facto resigned from his/her
the said provision in the new law, given that the same would be
office and must vacate the same at the start of the day of the
disadvantageous and unfair to potential candidates holding
filing of his/her certificate of candidacy—traces its roots to the
appointive positions, while it grants a consequent preferential
period of the American occupation.
  treatment to elective officials, thus—
In fact, during the deliberations of Senate Bill No. 2231,
the bill later to be consolidated with House Bill No. 5352 and
enacted as R.A. No. 9369,Senator Richard Gordon, the principal
author of the bill, acknowledged that the said proviso in the
proposed legislative measure is an old provision which was merely
copied from earlier existing legislation, thus—
 
            Senator Osmeña.  May I just opine
here and perhaps obtain the opinion of the
good Sponsor.  This reads like, “ANY
PERSON HOLDING [means currently] A
PUBLIC APPOINTIVE POSITION… SHALL BE
CONSIDERED IPSO FACTO RESIGNED”
[which means that the prohibition extends
only to appointive officials] “INCLUDING
ACTIVE MEMBERS OF THE ARMED FORCES,
OFFICERS AND EMPLOYEES”… This is a
prohibition, Mr. President.  This means if
one is chairman of SSS or PDIC, he is
deemed ipso facto resigned when he files
his certificate of candidacy.  Is that the
intention?
 
            Senator Gordon.  This is really an old
provision, Mr. President.
 
            Senator Osmeña.  It is in bold letters,
so I think it was a Committee amendment.
 
            Senator Gordon.  No, it has always
been there.
 
            Senator Osmeña.  I see.
 
            Senator Gordon.  I guess the
intention is not to give them undue
advantage, especially certain people.
 
            Senator Osmeña.  All right.[16]
In that Senate deliberation, however, Senator Miriam
 
            Senator Santiago.  On page 15, line
31, I know that this is a losing cause, so I
make this point more as a matter of record
than of any feasible hope that it can
possibly be either accepted or if we come to
a division of the House, it will be upheld by
the majority.
 
            I am referring to page 15, line
21.  The proviso begins:  “PROVIDED
FINALLY, THAT ANY PERSON HOLDING A
PUBLIC APPOINTIVE OFFICE…SHALL BE
CONSIDERED IPSO FACTO RESIGNED FROM
HIS/HER OFFICE.”
            The point that I made during the
appropriate debate in the past in this Hall is
that there is, for me, no valid reason for
exempting elective officials from this
inhibition or disqualification imposed by the
law.  If we are going to consider appointive
officers of the government, including AFP
members and officers of government-
owned and controlled corporations, or any
other member of the appointive sector of
the civil service, why should it not apply to
the elective sector for, after all, even
senators and congressmen are members of
the civil service as well?
            Further, it is self-serving for the
Senate, or for the Congress in general, to
give an exception to itself which is not
available to other similarly situated officials
TROPANG POTCHI
of government. Of course, the answer is,
the reason why we are special is that we are
elected.  Since we are imposing a
disqualification on all other government
officials except ourselves, I think, it is the
better part of delicadeza to inhibit
ourselves as well, so that if we want to stay
as senators, we wait until our term
expires.  But  if we want to run for some
other elective office during our term, then
we have to be considered resigned just like
everybody else.  That is my proposed
amendment.  But if it is unacceptable to the
distinguished Sponsor, because of
sensitivity to the convictions of the rest of
our colleagues, I will understand. 
            Senator Gordon. Mr. President, I
think the suggestion is well-thought of.  It is
a good policy.  However, this is something
that is already in the old law which was
upheld by the Supreme court in a recent
case that the rider was not upheld and that
it was valid.[17]
 
 
The obvious inequality brought about by the provision
on automatic resignation of appointive civil servants must have
been the reason why Senator Recto proposed the inclusion of the
following during the period of amendments: “ANY PERSON WHO
FILES HIS CERTIFICATE OF CANDIDACY WITHIN THIS PERIOD SHALL
ONLY BE CONSIDERED AS A CANDIDATE AT THE START OF THE
CAMPAIGN PERIOD FOR WHICH HE FILED HIS COC.” [18] The said
proviso seems to mitigate the situation of disadvantage afflicting
appointive officials by considering persons who filed their CoCs as
candidates only at the start of the campaign period, thereby,
conveying the tacit intent that persons holding appointive
positions will only be considered as resigned at the start of the
campaign period when they are already treated by law as
candidates.
 
Parenthetically, it may be remembered that Section 67
of the OEC and Section 11 of R.A. No. 8436 contained a similar
provision on automatic resignation of elective officials upon the
184
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

territory within which take part in any election except to

filing of their CoCs for any office other than that which they hold
it is to operate.  It vote.  Under the same provision, elective
in a permanent capacity or for President or Vice-President. does not demand officials, or officers or employees holding
absolute equality political offices, are obviously expressly
However, with the enactment of R.A. No. 9006, or the Fair among residents; it allowed to take part in political and
Election Act,[19] in 2001, this provision was repealed by Section merely requires that electoral activities.
all persons shall be  
14[20] of the said act. There was, thus, created a situation of treated alike, under By repealing Section 67 but
obvious discrimination against appointive officials who were like circumstances retaining Section 66 of the Omnibus
and conditions both Election Code, the legislators deemed it
deemed ipso facto resigned from their offices upon the filing of as to privileges proper to treat these two classes of officials
their CoCs, while elective officials were not. conferred and differently with respect to the effect on
liabilities their tenure in the office of the filing of the
  enforced.  The equal certificates of candidacy for any position
protection clause is other than those occupied by them.  Again,
This situation was incidentally addressed by the Court
not infringed by it is not within the power of the Court to
in Fariñas v. The Executive Secretary [21] when it ruled that— legislation which pass upon or look into the wisdom of this
applies only to those classification.
 
persons falling within  
Section 14 of Rep. Act No. 9006
a specified class, if it Since the classification justifying
Is Not Violative of the Equal
applies alike to all Section 14 of Rep. Act No. 9006, i.e., elected
Protection Clause of the Constitution
persons within such officials vis-a-vis appointive officials, is
 
class, and reasonable anchored upon material and significant
The petitioners’ contention, that
grounds exist for distinctions and all the persons belonging
the repeal of Section 67 of the Omnibus
making a distinction under the same classification are similarly
Election Code pertaining to elective officials
between those who treated, the equal protection clause of the
gives undue benefit to such officials as
fall within such class Constitution is, thus, not infringed.[22]
against the appointive ones and violates the
and those who do  
equal protection clause of the constitution,
not.  
is tenuous.
 
  However, it must be remembered that the Court,
Substantial distinctions clearly
The equal protection of the law
exist between elective officials and in Fariñas, was intently focused on the main issue of whether the
clause in the Constitution is not absolute,
appointive officials. The former occupy their
but is subject to reasonable classification.  If repealing clause in the Fair Election Act was a constitutionally
office by virtue of the mandate of the
the groupings are characterized by
electorate. They are elected to an office for proscribed rider, in that it unwittingly failed to ascertain with
substantial distinctions that make real
a definite term and may be removed
differences, one class may be treated and stricter scrutiny the impact of the retention of the provision on
therefrom only upon stringent conditions.
regulated differently from the other. The
On the other hand, appointive officials hold automatic resignation of persons holding appointive positions
Court has explained the nature of the equal
their office by virtue of their designation
protection guarantee in this manner: (Section 66) in the OEC, vis-à-vis the equal protection
thereto by an appointing authority.  Some
 
appointive officials hold their office in a clause.  Moreover, the Court’s vision inFariñas was shrouded by
The equal
permanent capacity and are entitled to
protection of the law the fact that petitioners therein, Fariñas et al., never posed a
security of tenure while others serve at the
clause is against
pleasure of the appointing authority.
undue favor and direct challenge to the constitutionality of Section 66 of the OEC.
 
individual or class
Another substantial distinction Fariñas et al. rather merely questioned, on constitutional grounds,
privilege, as well as
between the two sets of officials is that
hostile discrimination the repealing clause, or Section 14 of the Fair Election Act. The
under Section 55, Chapter 8, Title I,
or the oppression of
Subsection A. Civil Service Commission, Court’s afore-quoted declaration in Fariñas may then very well be
inequality.  It is not
Book V of the Administrative Code of 1987
intended to prohibit considered as an obiter dictum.
(Executive Order No. 292), appointive
legislation which is  
officials, as officers and employees in the
limited either in the
civil service, are strictly prohibited from III.
object to which it is
engaging in any partisan political activity or  
directed or by
185
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
The instant case presents a rare opportunity for the
Court, in view of the constitutional challenge advanced by
petitioners, once and for all, to settle the issue of whether the
second proviso in the third paragraph of Section 13 of R.A. No.
9369, a reproduction of Section 66 of the OEC, which, as shown
above, was based on provisions dating back to the American
occupation, is violative of the equal protection clause.
 
But before delving into the constitutional issue, we
shall first address the issues on legal standing and on the
existence of an actual controversy.
 
Central to the determination of locus standi is the
question of whether a party has alleged such a personal stake in
the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult
constitutional questions.[23] In this case, petitioners allege that
they will be directly affected by COMELEC Resolution No. 8678 for
they intend, and they all have the qualifications, to run in the
2010 elections. The OSG, for its part, contends that since
petitioners have not yet filed their CoCs, they are not yet
candidates; hence, they are not yet directly affected by the
assailed provision in the COMELEC resolution.
The Court, nevertheless, finds that, while petitioners
are not yet candidates, they have the standing to raise the
constitutional challenge, simply because they are qualified voters.
A restriction on candidacy, such as the challenged measure
herein, affects the rights of voters to choose their public officials.
The rights of voters and the rights of candidates do not lend
themselves to neat separation; laws that affect candidates always
have at least some theoretical, correlative effect on voters. [24] The
Court believes that both candidates and voters may challenge, on
grounds of equal protection,  the assailed measure because of its
impact on voting rights.[25]
 
In any event, in recent cases, this Court has relaxed the
stringent direct injury test and has observed a liberal policy
allowing ordinary citizens, members of Congress, and civil
organizations to prosecute actions involving the constitutionality
or validity of laws, regulations and rulings.[26]
 
We have also stressed in our prior decisions that the
exercise by this Court of judicial power is limited to the
determination and resolution of actual cases and controversies.
[27]
 The Court, in this case, finds that an actual case or controversy
exists between the petitioners and the COMELEC, the body
charged with the enforcement and administration of all election
laws. Petitioners have alleged in a precise manner that they would
engage in the very acts that would trigger the enforcement of the
provision—they would file their CoCs and run in the 2010
elections. Given that the assailed provision provides for ipso
facto resignation upon the filing of the CoC, it cannot be said that
it presents only a speculative or hypothetical obstacle to
petitioners’ candidacy.[28]
 
IV.
 
Having hurdled what the OSG posed as obstacles to
judicial review, the Court now delves into the constitutional
challenge.
 
It is noteworthy to point out that the right to run for
public office touches on two fundamental freedoms, those of
expression and of association. This premise is best explained
in Mancuso v. Taft,[29] viz.:
 
Freedom of expression
guarantees to the individual the
opportunity to write a letter to the local
newspaper, speak out in a public park,
distribute handbills advocating radical
reform, or picket an official building to seek
redress of grievances. All of these activities
are protected by the First Amendment if
TROPANG POTCHI
done in a manner consistent with a
narrowly defined concept of public order
and safety. The choice of means will likely
depend on the amount of time and energy
the individual wishes to expend and on his
perception as to the most effective method
of projecting his message to the public. But
interest and commitment are evolving
phenomena. What is an effective means for
protest at one point in time may not seem
so effective at a later date. The dilettante
who participates in a picket line may decide
to devote additional time and resources to
his expressive activity. As his commitment
increases, the means of effective expression
changes, but the expressive quality remains
constant. He may decide to lead the picket
line, or to publish the newspaper. At one
point in time he may decide that the most
effective way to give expression to his views
and to get the attention of an appropriate
audience is to become a candidate for
public office-means generally considered
among the most appropriate for those
desiring to effect change in our
governmental systems. He may seek to
become a candidate by filing in a general
election as an independent or by seeking
the nomination of a political party. And in
the latter instance, the individual's
expressive activity has two dimensions:
besides urging that his views be the views
of the elected public official, he is also
attempting to become a spokesman for a
political party whose substantive program
extends beyond the particular office in
question. But Cranston has said that a
certain type of its citizenry, the public
employee, may not become a candidate
and may not engage in any campaign
activity that promotes himself as a
candidate for public office. Thus the city has
stifled what may be the most important
expression an individual can summon,
namely that which he would be willing to
effectuate, by means of concrete public
action, were he to be selected by the
voters.
 
It is impossible to ignore the
additional fact that the right to run for
office also affects the freedom to associate.
In Williams v. Rhodes, supra, the Court used
strict review to invalidate an Ohio election
186
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
system that made it virtually impossible for
third parties to secure a place on the ballot.
The Court found that the First Amendment
protected the freedom to associate by
forming and promoting a political party and
that that freedom was infringed when the
state effectively denied a party access to its
electoral machinery. The Cranstoncharter
provision before us also affects
associational rights, albeit in a slightly
different way. An individual may decide to
join or participate in an organization or
political party that shares his beliefs. He
may even form a new group to forward his
ideas. And at some juncture his supporters
and fellow party members may decide that
he is the ideal person to carry the group's
standard into the electoral fray. To thus
restrict the options available to political
organization as the Cranston charter
provision has done is to limit the
effectiveness of association; and the
freedom to associate is intimately related
with the concept of making expression
effective. Party access to the ballot
becomes less meaningful if some of those
selected by party machinery to carry the
party's programs to the people are
precluded from doing so because those
nominees are civil servants.
 
Whether the right to run for
office is looked at from the point of view of
individual expression or associational
effectiveness, wide opportunities exist for
the individual who seeks public office. The
fact of candidacy alone may open
previously closed doors of the media. The
candidate may be invited to discuss his
views on radio talk shows; he may be able
to secure equal time on television to
elaborate his campaign program; the
newspapers may cover his candidacy; he
may be invited to debate before various
groups that had theretofore never heard of
him or his views. In short, the fact of
candidacy opens up a variety of
communicative possibilities that are not
available to even the most diligent of
picketers or the most loyal of party
followers. A view today, that running for
public office is not an interest protected by
the First Amendment, seems to us an
outlook stemming from an earlier era when
public office was the preserve of the
professional and the wealthy. Consequently
we hold that candidacy is both a protected
First Amendment right and a fundamental
interest. Hence any legislative classification
that significantly burdens that interest must
be subjected to strict equal protection
review.[30]
 
       Here, petitioners’ interest in running for public office, an
interest protected by Sections 4 and 8 of Article III of the
Constitution, is breached by the proviso in Section 13 of R.A. No.
9369. It is now the opportune time for the Court to strike down
the said proviso for being violative of the equal protection clause
and for being overbroad.
 
          In considering persons holding appointive positions as ipso
facto resigned from their posts upon the filing of their CoCs, but
not considering as resigned all other civil servants, specifically the
elective ones, the law unduly discriminates against the first class.
The fact alone that there is substantial distinction between those
who hold appointive positions and those occupying elective posts,
does not justify such differential treatment.
          In order that there can be valid classification so that a
discriminatory  governmental act may pass the constitutional
norm of equal protection, it is necessary that the four (4)
requisites of valid classification be complied with, namely:
(1)  It must be based upon substantial
distinctions;
(2)  It must be germane to the purposes of the
law;
(3)  It must not be limited to existing conditions
only; and
(4)  It must apply equally to all members of the
class.
TROPANG POTCHI
The first requirement means that there must be real
and substantial differences between the classes treated
differently. As illustrated in the fairly recentMirasol v. Department
of Public Works and Highways,[31] a real and substantial distinction
exists between a motorcycle and other motor vehicles sufficient
to justify its classification among those prohibited from plying the
toll ways. Not all motorized vehicles are created equal—a two-
wheeled vehicle is less stable and more easily overturned than a
four-wheel vehicle.
Nevertheless, the classification would still be invalid if
it does not comply with the second requirement—if it is not
germane to the purpose of the law. Justice Isagani A. Cruz (Ret.),
in his treatise on constitutional law, explains,
            The classification, even if based on
substantial distinctions, will still be invalid if
it is not germane to the purpose of the law.
To illustrate, the accepted difference in
physical stamina between men and women
will justify the prohibition of the latter from
employment as miners or stevedores or in
other heavy and strenuous work. On the
basis of this same classification, however,
the law cannot provide for a lower passing
average for women in the bar examinations
because physical strength is not the test for
admission to the legal profession. Imported
cars may be taxed at a higher rate than
locally assembled automobiles for the
protection of the national economy, but
their difference in origin is no justification
for treating them differently when it comes
to punishing violations of traffic regulations.
The source of the vehicle has no relation to
the observance of these rules.[32]
 
          The third requirement means that the classification must be
enforced not only for the present but as long as the problem
sought to be corrected continues to exist. And, under the last
requirement, the classification would be regarded as invalid if all
187
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
the members of the class are not treated similarly, both as to
rights conferred and obligations imposed.[33]
 
          Applying the four requisites to the instant case, the Court
finds that the differential treatment of persons holding appointive
offices as opposed to those holding elective ones is not germane
to the purposes of the law.
          The obvious reason for the challenged provision is to
prevent the use of a governmental position to promote one’s
candidacy, or even to wield a dangerous or coercive influence on
the electorate. The measure is further aimed at promoting the
efficiency, integrity, and discipline of the public service by
eliminating the danger that the discharge of official duty would be
motivated by political considerations rather than the welfare of
the public.[34] The restriction is also justified by the proposition
that the entry of civil servants to the electoral arena, while still in
office, could result in neglect or inefficiency in the performance of
duty because they would be attending to their campaign rather
than to their office work.
 
          If we accept these as the underlying objectives of the law,
then the assailed provision cannot be constitutionally rescued on
the ground of valid classification. Glaringly absent is the requisite
that the classification must be germane to the purposes of the
law. Indeed, whether one holds an appointive office or an elective
one, the evils sought to be prevented by the measure remain. For
example, the Executive Secretary, or any Member of the Cabinet
for that matter, could wield the same influence as the Vice-
President who at the same time is appointed to a Cabinet post (in
the recent past, elected Vice-Presidents were appointed to take
charge of national housing, social welfare development, interior
and local government, and foreign affairs). With the fact that they
both head executive offices, there is no valid justification to treat
them differently when both file their CoCs for the elections. Under
the present state of our law, the Vice-President, in the example,
running this time, let us say, for President, retains his position
during the entire election period and can still use the resources of
his office to support his campaign.  employees,
As to the danger of neglect, inefficiency or partisanship
in the discharge of the functions of his appointive office, the
inverse could be just as true and compelling.  The public officer
who files his certificate of candidacy would be driven by a greater
impetus for excellent performance to show his fitness for the
position aspired for.
          Mancuso v. Taft,[35] cited above, explains that the measure
on automatic resignation, which restricts the rights of civil
servants to run for office—a right inextricably linked to their
freedom of expression and association, is not reasonably
necessary to the satisfaction of the state interest. Thus, in striking
down a similar measure in the United States, Mancuso succinctly
declares—
 
In proceeding to the second
stage of active equal protection review,
however, we do see some contemporary
relevance of the Mitchell decision. National
Ass'n of Letter Carriers, supra. In order for
the Cranston charter provision to withstand
strict scrutiny, the city must show that the
exclusion of all government employees
from candidacy is necessary to achieve a
compelling state interest. And, as stated
in Mitchell and other cases dealing with
similar statutes, see Wisconsin State
Employees, supra; Broadrick, supra,
government at all levels has a substantial
interest in protecting the integrity of its civil
service. It is obviously conceivable that the
impartial character of the civil service would
be seriously jeopardized if people in
positions of authority used their discretion
to forward their electoral ambitions rather
than the public welfare. Similarly if a public
employee pressured other fellow
employees to engage in corrupt practices in
return for promises of post-election reward,
or if an employee invoked the power of the
TROPANG POTCHI
office he was seeking to extract special
favors from his superiors, the civil service
would be done irreparable injury.
Conversely, members of the public, fellow-
or supervisors might
themselves request favors from the
candidate or might improperly adjust their
own official behavior towards him. Even if
none of these abuses actually materialize,
the possibility of their occurrence might
seriously erode the public's confidence in its
public employees. For the reputation of
impartiality is probably as crucial as the
impartiality itself; the knowledge that a
clerk in the assessor's office who is running
for the local zoning board has access to
confidential files which could provide
“pressure” points for furthering his
campaign is destructive regardless of
whether the clerk actually takes advantage
of his opportunities. For all of these reasons
we find that the state indeed has a
compelling interest in maintaining the
honesty and impartiality of its public work
force.
 
We do not, however, consider
the exclusionary measure taken
by Cranston-a flat prohibition on office-
seeking of all kinds by all kinds of public
employees-as even reasonably necessary to
satisfaction of this state interest. As Justice
Marshall pointed out in Dunn v.
Blumstein, “[s]tatutes affecting
constitutional rights must be drawn with
‘precision.’” For three sets of reasons we
conclude that the Cranston charter
provision pursues its objective in a far too
heavy-handed manner and hence must fall
under the equal protection clause. First, we
think the nature of the regulation-a broad
prophylactic rule-may be unnecessary to
fulfillment of the city's objective. Second,
even granting some sort of prophylactic rule
may be required, the provision here
prohibits candidacies for all types of public
office, including many which would pose
none of the problems at which the law is
aimed. Third, the provision excludes the
candidacies of all types of public
employees, without any attempt to limit
exclusion to those employees whose
positions make them vulnerable to
corruption and conflicts of interest.
188
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
 
state interest to restrict the fundamental right involved on such a
 
sweeping scale.[36]
There is thus no valid justification to treat appointive
 
officials differently from the elective ones.  The classification
Specific evils require specific treatments, not through
simply fails to meet the test that it should be germane to the
overly broad measures that unduly restrict guaranteed freedoms
purposes of the law.  The measure encapsulated in the second
of the citizenry. After all, sovereignty resides in the people, and all
proviso of the third paragraph of Section 13 of R.A. No. 9369 and
governmental power emanates from them.
inSection 66 of the OEC violates the equal protection clause.  
Mancuso v. Taft,[37] on this point, instructs—
V.  
  As to approaches less restrictive
than a prophylactic rule, there exists the
          The challenged provision also suffers from the infirmity of
device of the leave of absence. Some
being overbroad. system of leaves of absence would permit
  the public employee to take time off to
pursue his candidacy while assuring him his
First, the provision pertains to all civil servants holding old job should his candidacy be
appointive posts without distinction as to whether they occupy unsuccessful. Moreover, a leave of absence
policy would eliminate many of the
high positions in government or not. Certainly, a utility worker in opportunities for engaging in the
the government will also be considered as ipso facto resigned questionable practices that the statute is
designed to prevent. While campaigning,
once he files his CoC for the 2010 elections. This scenario is the candidate would feel no conflict
absurd for, indeed, it is unimaginable how he can use his position between his desire for election and his
publicly entrusted discretion, nor any
in the government to wield influence in the political world.  conflict between his efforts to persuade the
public and his access to confidential
documents. But instead of adopting a
While it may be admitted that most appointive officials reasonable leave of absence
policy, Cranston has chosen a provision that
who seek public elective office are those who occupy relatively
makes the public employee cast off the
high positions in government, laws cannot be legislated for them security of hard-won public employment
should he desire to compete for elected
alone, or with them alone in mind.  For the right to seek public office.
elective office is universal, open and unrestrained, subject only to  
The city might also promote its
the qualification standards prescribed in the Constitution and in interest in the integrity of the civil service
the laws.  These qualifications are, as we all know, general and by enforcing, through dismissal, discipline,
or criminal prosecution, rules or statutes
basic so as to allow the widest participation of the citizenry and to that treat conflict of interests, bribery, or
give free rein for the pursuit of one’s highest aspirations to public other forms of official corruption. By thus
attacking the problem directly, instead of
office.  Such is the essence of democracy. using a broad prophylactic rule, the city
  could pursue its objective without unduly
burdening the First Amendment rights of its
Second, the provision is directed to the activity of
employees and the voting rights of its
seeking any and all public offices, whether they be partisan or citizens. Last term in Dunn v. Blumstein, the
Supreme Court faced an analogous question
nonpartisan in character, whether they be in the national,
when the State of Tennessee asserted that
municipal or barangay level. Congress has not shown a compelling the interest of “ballot box purity” justified
TROPANG POTCHI
its imposition of one year and three month
residency requirements before a citizen
could vote. Justice Marshall stated, inter
alia, that Tennessee had available a number
of criminal statutes that could be used to
punish voter fraud without unnecessary
infringement on the newcomer's right to
vote. Similarly, it appears from the record in
this case that the Cranston charter contains
some provisions that might be used against
opportunistic public employees.
Even if some sort of prophylactic
rule is necessary, we cannot say
that Cranston has put much effort into
tailoring a narrow provision that attempts
to match the prohibition with the problem.
The charter forbids a Cranston public
employee from running for any office,
anywhere. The prohibition is not limited
to the local offices of Cranston, but rather
extends to statewide offices and even to
national offices. It is difficult for us to see
that a public employee running for the
United States Congress poses quite the
same threat to the civil service as would the
same employee if he were running for a
local office where the contacts and
information provided by his job related
directly to the position he was seeking, and
hence where the potential for various
abuses was greater. Nor does
the Cranston charter except the public
employee who works in Cranston but
aspires to office in another local jurisdiction,
most probably his town of residence. Here
again the charter precludes candidacies
which can pose only a remote threat to the
civil service. Finally, the charter does not
limit its prohibition to partisan office-
seeking, but sterilizes also those public
employees who would seek nonpartisan
elective office. The statute reviewed
in Mitchell was limited to partisan political
activity, and since that time other courts
have found the partisan-nonpartisan
distinction a material one. See Kinnear,
supra; Wisconsin StateEmployees,
supra; Gray v. Toledo, supra. While the line
between nonpartisan and partisan can
often be blurred by systems whose true
characters are disguised by the names given
them by their architects, it seems clear that
the concerns of a truly partisan office and
189
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
the temptations it fosters are sufficiently
different from those involved in an office
removed from regular party politics to
warrant distinctive treatment in a charter of
this sort.
 
The third and last area of
excessive and overinclusive coverage of
the Cranston charter relates not to the type
of office sought, but to the type of
employee seeking the office. As Justice
Douglas pointed out in his dissent
in Mitchell,  330 U.S. at 120-126, 67 S.Ct.
556, restrictions on administrative
employees who either participate in
decision-making or at least have some
access to information concerning policy
matters are much more justifiable than
restrictions on industrial employees, who,
but for the fact that the government owns
the plant they work in, are, for purposes of
access to official information, identically
situated to all other industrial workers.
Thus, a worker in the Philadelphia mint
could be distinguished from a secretary in
an office of the Department of Agriculture;
so also could a janitor in the public schools
of Cranston be distinguished from an
assistant comptroller of the same city. A
second line of distinction that focuses on
the type of employee is illustrated by the
cases of Kinnear and Minielly, supra. In both
of these cases a civil service deputy decided
to run for the elected office of sheriff. The
courts in both cases felt that the no-
candidacy laws in question were much too
broad and indicated that perhaps the only
situation sensitive enough to justify a flat
rule was one in which an inferior in a public
office electorally challenged his immediate
superior. Given all these considerations, we
think Cranston has not given adequate
attention to the problem of narrowing the
terms of its charter to deal with the specific
kinds of conflict-of-interest problems it
seeks to avoid.
 
We also do not find convincing
the arguments that after-hours
campaigning will drain the energy of the
public employee to the extent that he is
incapable of performing his job effectively
and that inevitable on-the-job campaigning
and discussion of his candidacy will disrupt
the work of others. Although it is
indisputable that the city has a compelling
interest in the performance of official work,
the exclusion is not well-tailored to
effectuate that interest. Presumably the city
could fire the individual if he clearly shirks
his employment responsibilities or disrupts
the work of others. Also, the efficiency
rationale common to both arguments is
significantly underinclusive. It applies
equally well to a number of non-political,
extracurricular activities that are not
prohibited by the Cranston charter. Finally,
the connection between after-hours
campaigning and the state interest seems
tenuous; in many cases a public employee
would be able to campaign aggressively and
still continue to do his job well.[38]
 
Incidentally, Clements v. Fashing[39] sustained
constitutional a provision on the automatic resignation of District
Clerks, County Clerks, County Judges, County Treasurers, Criminal
District Attorneys, County Surveyors, Inspectors of Hides and
Animals, County Commissioners, Justices of the Peace, Sheriffs,
Assessors and Collectors of Taxes, District Attorneys, County
Attorneys, Public Weighers, and Constables if they announce their
candidacy or if they become candidates in any general, special or
primary election.
In Clements, it may be readily observed that a
provision treating differently particular officials, as distinguished
from all others, under a classification that is germane to the
purposes of the law, merits the stamp of approval from American
courts.  Not, however, a general and sweeping provision, and
more so one violative of the second requisite for a valid
classification, which is on its face unconstitutional.
 
On a final note, it may not be amiss to state that the
Americans, from whom we copied the provision in question, had
already stricken down a similar measure for being
unconstitutional. It is high-time that we, too, should follow suit
TROPANG POTCHI
and, thus, uphold fundamental liberties over age-old, but barren,
restrictions to such freedoms.
 
WHEREFORE, premises considered, the petition
is GRANTED. The second proviso in the third paragraph of Section
13 of Republic Act No. 9369, Section 66 of the Omnibus Election
Code and Section 4(a) of COMELEC Resolution No. 8678 are
declared as UNCONSTITUTIONAL.
 
 
 
Republic of the Philippines
SUPREME COURT
Manila
as EN BANC
G.R. No. 192935               December 7, 2010
LOUIS "BAROK" C. BIRAOGO, Petitioner, 
vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 193036
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP.
SIMEON A. DATUMANONG, and REP. ORLANDO B. FUA,
SR., Petitioners, 
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and
DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY
FLORENCIO B. ABAD, Respondents.
DECISION
MENDOZA, J.:
When the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of
the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims
of authority under the Constitution and to establish for the parties
190
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
in an actual controversy the rights which that instrument secures
and guarantees to them.
--- Justice Jose P. Laurel1
The role of the Constitution cannot be overlooked. It is through
the Constitution that the fundamental powers of government are
established, limited and defined, and by which these powers are
distributed among the several departments.2 The Constitution is
the basic and paramount law to which all other laws must
conform and to which all persons, including the highest officials of
the land, must defer.3 Constitutional doctrines must remain
steadfast no matter what may be the tides of time. It cannot be
simply made to sway and accommodate the call of situations and
much more tailor itself to the whims and caprices of government
and the people who run it.4
For consideration before the Court are two consolidated
cases5 both of which essentially assail the validity and
constitutionality of Executive Order No. 1, dated July 30, 2010,
entitled "Creating the Philippine Truth Commission of 2010."
The first case is G.R. No. 192935, a special civil action for
prohibition instituted by petitioner Louis Biraogo (Biraogo) in his
capacity as a citizen and taxpayer. Biraogo assails Executive Order
No. 1 for being violative of the legislative power of Congress
under Section 1, Article VI of the Constitution6 as it usurps the
constitutional authority of the legislature to create a public office
and to appropriate funds therefor.7
The second case, G.R. No. 193036, is a special civil action for
certiorari and prohibition filed by petitioners Edcel C. Lagman,
Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B.
Fua, Sr. (petitioners-legislators) as incumbent members of the
House of Representatives.
The genesis of the foregoing cases can be traced to the events
prior to the historic May 2010 elections, when then Senator
Benigno Simeon Aquino III declared his staunch condemnation of
graft and corruption with his slogan, "Kung walang corrupt,
walang mahirap." The Filipino people, convinced of his sincerity
and of his ability to carry out this noble objective, catapulted the
good senator to the presidency.
To transform his campaign slogan into reality, President Aquino
found a need for a special body to investigate reported cases of
graft and corruption allegedly committed during the previous
administration.
Thus, at the dawn of his administration, the President on July 30,
2010, signed Executive Order No. 1 establishing
the Philippine Truth Commission of 2010 (Truth Commission).
Pertinent provisions of said executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the
Philippines solemnly enshrines the principle that a public office is
a public trust and mandates that public officers and employees,
who are servants of the people, must at all times be accountable
to the latter, serve them with utmost responsibility, integrity,
loyalty and efficiency, act with patriotism and justice, and lead
modest lives;
WHEREAS, corruption is among the most despicable acts of
defiance of this principle and notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously
affects the political, economic, and social life of a nation; in a very
special way it inflicts untold misfortune and misery on the poor,
the marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very
alarming levels, and undermined the people’s trust and
confidence in the Government and its institutions;
WHEREAS, there is an urgent call for the determination of the
truth regarding certain reports of large scale graft and corruption
in the government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to
deter others from committing the evil, restore the people’s faith
and confidence in the Government and in their public servants;
WHEREAS, the President’s battlecry during his campaign for the
Presidency in the last elections "kung walang corrupt, walang
mahirap" expresses a solemn pledge that if elected, he would end
corruption and the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported
cases of graft and corruption during the previous administration,
and which will recommend the prosecution of the offenders and
secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No.
292, otherwise known as the Revised Administrative Code of the
Philippines, gives the President the continuing authority to
reorganize the Office of the President.
TROPANG POTCHI
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of
the Republic of the Philippines, by virtue of the powers vested in
me by law, do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the "COMMISSION," which shall primarily seek and find the truth
on, and toward this end, investigate reports of graft and
corruption of such scale and magnitude that shock and offend the
moral and ethical sensibilities of the people, committed by public
officers and employees, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration; and thereafter recommend the appropriate action
or measure to be taken thereon to ensure that the full measure of
justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4)
members who will act as an independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall
have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of
reported cases of graft and corruption referred to in Section 1,
involving third level public officers and higher, their co-principals,
accomplices and accessories from the private sector, if any, during
the previous administration and thereafter submit its finding and
recommendations to the President, Congress and the
Ombudsman.
In particular, it shall:
a) Identify and determine the reported
cases of such graft and corruption which it
will investigate;
b) Collect, receive, review and evaluate
evidence related to or regarding the cases
of large scale corruption which it has
chosen to investigate, and to this end
require any agency, official or employee of
the Executive Branch, including
government-owned or controlled
corporations, to produce documents,
books, records and other papers;
c) Upon proper request or representation,
obtain information and documents from the
Senate and the House of Representatives
records of investigations conducted by
committees thereof relating to matters or
191
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
subjects being investigated by the
Commission;
d) Upon proper request and representation,
obtain information from the courts,
including the Sandiganbayan and the Office
of the Court Administrator, information or
documents in respect to corruption cases
filed with the Sandiganbayan or the regular
courts, as the case may be;
e) Invite or subpoena witnesses and take
their testimonies and for that purpose,
administer oaths or affirmations as the case
may be;
f) Recommend, in cases where there is a
need to utilize any person as a state witness
to ensure that the ends of justice be fully
served, that such person who qualifies as a
state witness under the Revised Rules of
Court of the Philippines be admitted for
that purpose;
g) Turn over from time to time, for
expeditious prosecution, to the appropriate
prosecutorial authorities, by means of a
special or interim report and
recommendation, all evidence on
corruption of public officers and employees
and their private sector co-principals,
accomplices or accessories, if any, when in
the course of its investigation the
Commission finds that there is reasonable
ground to believe that they are liable for
graft and corruption under pertinent
applicable laws;
h) Call upon any government investigative
or prosecutorial agency such as the
Department of Justice or any of the
agencies under it, and the Presidential Anti-
Graft Commission, for such assistance and
cooperation as it may require in the
discharge of its functions and duties;
i) Engage or contract the services of
resource persons, professionals and other
personnel determined by it as necessary to
carry out its mandate;
j) Promulgate its rules and regulations or
rules of procedure it deems necessary to
effectively and efficiently carry out the
objectives of this Executive Order and to
ensure the orderly conduct of its
investigations, proceedings and hearings,
including the presentation of evidence;
k) Exercise such other acts incident to or are
appropriate and necessary in connection
with the objectives and purposes of this
Order.
SECTION 3. Staffing Requirements. – x x x.
SECTION 4. Detail of Employees. – x x x.
SECTION 5. Engagement of Experts. – x x x
SECTION 6. Conduct of Proceedings. – x x x.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x
x x.
SECTION 8. Protection of Witnesses/Resource Persons. – x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give
Testimony. – Any government official or personnel who, without
lawful excuse, fails to appear upon subpoena issued by the
Commission or who, appearing before the Commission refuses to
take oath or affirmation, give testimony or produce documents
for inspection, when required, shall be subject to administrative
disciplinary action. Any private person who does the same may be
dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. – x x
x.
SECTION 11. Budget for the Commission. – The Office of the
President shall provide the necessary funds for the Commission to
ensure that it can exercise its powers, execute its functions, and
perform its duties and responsibilities as effectively, efficiently,
and expeditiously as possible.
SECTION 12. Office. – x x x.
SECTION 13. Furniture/Equipment. – x x x.
TROPANG POTCHI
SECTION 14. Term of the Commission. – The Commission shall
accomplish its mission on or before December 31, 2012.
SECTION 15. Publication of Final Report. – x x x.
SECTION 16. Transfer of Records and Facilities of the
Commission. – x x x.
SECTION 17. Special Provision Concerning Mandate. If and when
in the judgment of the President there is a need to expand the
mandate of the Commission as defined in Section 1 hereof to
include the investigation of cases and instances of graft and
corruption during the prior administrations, such mandate may be
so extended accordingly by way of a supplemental Executive
Order.
SECTION 18. Separability Clause. If any provision of this Order is
declared unconstitutional, the same shall not affect the validity
and effectivity of the other provisions hereof.
SECTION 19. Effectivity. – This Executive Order shall take effect
immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the
Philippine Truth Commission (PTC) is a mere ad hoc body formed
under the Office of the President with the primary task to
investigate reports of graft and corruption committed by third-
level public officers and employees, their co-principals,
accomplices and accessories during the previous administration,
and thereafter to submit its finding and recommendations to the
President, Congress and the Ombudsman. Though it has been
described as an "independent collegial body," it is essentially an
entity within the Office of the President Proper and subject to his
control. Doubtless, it constitutes a public office, as an ad hoc body
is one.8
To accomplish its task, the PTC shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987. It is not, however, a quasi-judicial
192
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
body as it cannot adjudicate, arbitrate, resolve, settle, or render
awards in disputes between contending parties. All it can do is
gather, collect and assess evidence of graft and corruption and
make recommendations. It may have subpoena powers but it has
no power to cite people in contempt, much less order their arrest.
Although it is a fact-finding body, it cannot determine from such
facts if probable cause exists as to warrant the filing of an
information in our courts of law. Needless to state, it cannot
impose criminal, civil or administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries
which have been created as official, transitory and non-judicial
fact-finding bodies "to establish the facts and context of serious
violations of human rights or of international humanitarian law in
a country’s past."9 They are usually established by states emerging
from periods of internal unrest, civil strife or authoritarianism to
serve as mechanisms for transitional justice.
Truth commissions have been described as bodies that share the
following characteristics: (1) they examine only past events; (2)
they investigate patterns of abuse committed over a period of
time, as opposed to a particular event; (3) they are temporary
bodies that finish their work with the submission of a report
containing conclusions and recommendations; and (4) they are
officially sanctioned, authorized or empowered by the
State.10"Commission’s members are usually empowered to
conduct research, support victims, and propose policy
recommendations to prevent recurrence of crimes. Through their
investigations, the commissions may aim to discover and learn
more about past abuses, or formally acknowledge them. They
may aim to prepare the way for prosecutions and recommend
institutional reforms."11
Thus, their main goals range from retribution to reconciliation.
The Nuremburg and Tokyo war crime tribunals are examples of a
retributory or vindicatory body set up to try and punish those
responsible for crimes against humanity. A form of a
reconciliatory tribunal is the Truth and Reconciliation Commission
of South Africa, the principal function of which was to heal the
wounds of past violence and to prevent future conflict by
providing a cathartic experience for victims.
The PTC is a far cry from South Africa’s model. The latter placed
more emphasis on reconciliation than on judicial retribution,
while the marching order of the PTC is the identification and
punishment of perpetrators. As one writer12 puts it:
The order ruled out reconciliation. It translated the Draconian
code spelled out by Aquino in his inaugural speech: "To those who
talk about reconciliation, if they mean that they would like us to
simply forget about the wrongs that they have committed in the
past, we have this to say: There can be no reconciliation without
TROPANG POTCHI
justice. When we allow crimes to go unpunished, we give consent (f) The creation of the "Truth Commission" is an
to their occurring over and over again." exercise in futility, an adventure in partisan hostility, a
launching pad for trial/conviction by publicity and a
mere populist propaganda to mistakenly impress the
The Thrusts of the Petitions
people that widespread poverty will altogether vanish
if corruption is eliminated without even addressing the
Barely a month after the issuance of Executive Order No. 1, the other major causes of poverty.
petitioners asked the Court to declare it unconstitutional and to
enjoin the PTC from performing its functions. A perusal of the
(g) The mere fact that previous commissions were not
arguments of the petitioners in both cases shows that they are
constitutionally challenged is of no moment because
essentially the same. The petitioners-legislators summarized them
neither laches nor estoppel can bar an eventual
in the following manner:
question on the constitutionality and validity of an
executive issuance or even a statute."13
(a) E.O. No. 1 violates the separation of powers as it
arrogates the power of the Congress to create a public
In their Consolidated Comment,14 the respondents, through the
office and appropriate funds for its operation.
Office of the Solicitor General (OSG), essentially questioned the
legal standing of petitioners and defended the assailed executive
(b) The provision of Book III, Chapter 10, Section 31 of order with the following arguments:
the Administrative Code of 1987 cannot legitimize E.O.
No. 1 because the delegated authority of the President
1] E.O. No. 1 does not arrogate the powers of Congress
to structurally reorganize the Office of the President to
to create a public office because the President’s
achieve economy, simplicity and efficiency does not
executive power and power of control necessarily
include the power to create an entirely new public
include the inherent power to conduct investigations
office which was hitherto inexistent like the "Truth
to ensure that laws are faithfully executed and that, in
Commission."
any event, the Constitution, Revised Administrative
Code of 1987 (E.O. No. 292), 15 Presidential Decree
(c) E.O. No. 1 illegally amended the Constitution and (P.D.) No. 141616 (as amended by P.D. No. 1772), R.A.
pertinent statutes when it vested the "Truth No. 9970,17 and settled jurisprudence that authorize
Commission" with quasi-judicial powers duplicating, if the President to create or form such bodies.
not superseding, those of the Office of the
Ombudsman created under the 1987 Constitution and
2] E.O. No. 1 does not usurp the power of Congress to
the Department of Justice created under the
appropriate funds because there is no appropriation
Administrative Code of 1987.
but a mere allocation of funds already appropriated by
Congress.
(d) E.O. No. 1 violates the equal protection clause as it
selectively targets for investigation and prosecution
3] The Truth Commission does not duplicate or
officials and personnel of the previous administration
supersede the functions of the Office of the
as if corruption is their peculiar species even as it
Ombudsman (Ombudsman) and the Department of
excludes those of the other administrations, past and
Justice (DOJ), because it is a fact-finding body and not
present, who may be indictable.
a quasi-judicial body and its functions do not duplicate,
supplant or erode the latter’s jurisdiction.
(e) The creation of the "Philippine Truth Commission of
2010" violates the consistent and general international
4] The Truth Commission does not violate the equal
practice of four decades wherein States constitute
protection clause because it was validly created for
truth commissions to exclusively investigate human
laudable purposes.
rights violations, which customary practice forms part
of the generally accepted principles of international
law which the Philippines is mandated to adhere to The OSG then points to the continued existence and validity of
pursuant to the Declaration of Principles enshrined in other executive orders and presidential issuances creating similar
the Constitution. bodies to justify the creation of the PTC such as Presidential
Complaint and Action Commission(PCAC) by President Ramon B.
Magsaysay, Presidential Committee on Administrative
193
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Performance Efficiency(PCAPE) by President Carlos P. Garcia and
Presidential Agency on Reform and Government
Operations (PARGO)by President Ferdinand E. Marcos.18
From the petitions, pleadings, transcripts, and memoranda, the
following are the principal issues to be resolved:
1. Whether or not the petitioners have the legal
standing to file their respective petitions and question
Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the
principle of separation of powers by usurping the
powers of Congress to create and to appropriate funds
for public offices, agencies and commissions;
3. Whether or not Executive Order No. 1 supplants the
powers of the Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the
equal protection clause; and
5. Whether or not petitioners are entitled to injunctive
relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of
Executive Order No. 1, the Court needs to ascertain whether the
requisites for a valid exercise of its power of judicial review are
present.
Like almost all powers conferred by the Constitution, the power of
judicial review is subject to limitations, to wit: (1) there must be
an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have the standing
to question the validity of the subject act or issuance; otherwise
stated, he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality
must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.19
Among all these limitations, only the legal standing of the
petitioners has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators
to file their petition for failure to demonstrate their personal
stake in the outcome of the case. It argues that the petitioners
have not shown that they have sustained or are in danger of
sustaining any personal injury attributable to the creation of the
PTC. Not claiming to be the subject of the commission’s
investigations, petitioners will not sustain injury in its creation or
as a result of its proceedings.20
The Court disagrees with the OSG in questioning the legal
standing of the petitioners-legislators to assail Executive Order
No. 1. Evidently, their petition primarily invokes usurpation of the
power of the Congress as a body to which they belong as
members. This certainly justifies their resolve to take the cudgels
for Congress as an institution and present the complaints on the
usurpation of their power and rights as members of the
legislature before the Court. As held in Philippine Constitution
Association v. Enriquez,21
To the extent the powers of Congress are impaired, so is the
power of each member thereof, since his office confers a right to
participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress
causes a derivative but nonetheless substantial injury, which can
be questioned by a member of Congress. In such a case, any
member of Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the
prerogative, powers and privileges vested by the Constitution in
their office remain inviolate. Thus, they are allowed to question
the validity of any official action which, to their mind, infringes on
their prerogatives as legislators.22
With regard to Biraogo, the OSG argues that, as a taxpayer, he has
no standing to question the creation of the PTC and the budget
for its operations.23 It emphasizes that the funds to be used for
the creation and operation of the commission are to be taken
from those funds already appropriated by Congress. Thus, the
allocation and disbursement of funds for the commission will not
entail congressional action but will simply be an exercise of the
President’s power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that
he sustained, or is in danger of sustaining, any personal and direct
injury attributable to the implementation of Executive Order No.
1. Nowhere in his petition is an assertion of a clear right that may
justify his clamor for the Court to exercise judicial power and to
wield the axe over presidential issuances in defense of the
Constitution. The case of David v. Arroyo24 explained the deep-
seated rules on locus standi. Thus:
TROPANG POTCHI
Locus standi is defined as "a right of appearance in a court of
justice on a given question." In private suits, standing is governed
by the "real-parties-in interest" rule as contained in Section 2,
Rule 3 of the 1997 Rules of Civil Procedure, as amended. It
provides that "every action must be prosecuted or defended in
the name of the real party in interest." Accordingly, the "real-
party-in interest" is "the party who stands to be benefited or
injured by the judgment in the suit or the party entitled to the
avails of the suit." Succinctly put, the plaintiff’s standing is based
on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits.
Here, the plaintiff who asserts a "public right" in assailing an
allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently
from any other person. He could be suing as a "stranger," or in the
category of a "citizen," or ‘taxpayer." In either case, he has to
adequately show that he is entitled to seek judicial protection. In
other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a
"citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and
"taxpayer" standing in public actions. The distinction was first laid
down in Beauchamp v. Silk, where it was held that the plaintiff in
a taxpayer’s suit is in a different category from the plaintiff in a
citizen’s suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins: "In matter of mere
public right, however…the people are the real parties…It is at least
the right, if not the duty, of every citizen to interfere and see that
a public offence be properly pursued and punished, and that a
public grievance be remedied." With respect to taxpayer’s
suits, Terr v. Jordan held that "the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful use of
public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed
with, and thus hinders the activities of governmental agencies
engaged in public service, the United State Supreme Court laid
down the more stringent "direct injury" test in Ex Parte Levitt,
later reaffirmed inTileston v. Ullman. The same Court ruled that
for a private individual to invoke the judicial power to determine
the validity of an executive or legislative action, he must show
that he has sustained a direct injury as a result of that action,
and it is not sufficient that he has a general interest common to
all members of the public.
This Court adopted the "direct injury" test in our jurisdiction.
In People v. Vera, it held that the person who impugns the validity
194
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
of a statute must have "a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a
result." The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate, Manila Race Horse
Trainers’ Association v. De la Fuente, Pascual v. Secretary of Public
Works and Anti-Chinese League of the Philippines v.
Felix. [Emphases included. Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on
standing is a matter of procedure, hence, can be relaxed for
nontraditional plaintiffs like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the
matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest."25
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the
Court held that in cases of paramount importance where serious
constitutional questions are involved, the standing requirements
may be relaxed and a suit may be allowed to prosper even where
there is no direct injury to the party claiming the right of judicial
review. In the first Emergency Powers Cases, 27 ordinary citizens
and taxpayers were allowed to question the constitutionality of
several executive orders although they had only an indirect and
general interest shared in common with the public.
The OSG claims that the determinants of transcendental
importance28 laid down in CREBA v. ERC and Meralco29are non-
existent in this case. The Court, however, finds reason in Biraogo’s
assertion that the petition covers matters of transcendental
importance to justify the exercise of jurisdiction by the Court.
There are constitutional issues in the petition which deserve the
attention of this Court in view of their seriousness, novelty and
weight as precedents. Where the issues are of transcendental and
paramount importance not only to the public but also to the
Bench and the Bar, they should be resolved for the guidance of
all.30 Undoubtedly, the Filipino people are more than interested to
know the status of the President’s first effort to bring about a
promised change to the country. The Court takes cognizance of
the petition not due to overwhelming political undertones that
clothe the issue in the eyes of the public, but because the Court
stands firm in its oath to perform its constitutional duty to settle
legal controversies with overreaching significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the
Truth Commission is a public office and not merely an adjunct
body of the Office of the President.31 Thus, in order that the
President may create a public office he must be empowered by
the Constitution, a statute or an authorization vested in him by
law. According to petitioner, such power cannot be
presumed32 since there is no provision in the Constitution or any
specific law that authorizes the President to create a truth
commission.33 He adds that Section 31 of the Administrative Code
of 1987, granting the President the continuing authority to
reorganize his office, cannot serve as basis for the creation of a
truth commission considering the aforesaid provision merely uses
verbs such as "reorganize," "transfer," "consolidate," "merge,"
and "abolish."34 Insofar as it vests in the President the plenary
power to reorganize the Office of the President to the extent of
creating a public office, Section 31 is inconsistent with the
principle of separation of powers enshrined in the Constitution
and must be deemed repealed upon the effectivity thereof. 35
Similarly, in G.R. No. 193036, petitioners-legislators argue that the
creation of a public office lies within the province of Congress and
not with the executive branch of government. They maintain that
the delegated authority of the President to reorganize under
Section 31 of the Revised Administrative Code: 1) does not permit
the President to create a public office, much less a truth
commission; 2) is limited to the reorganization of the
administrative structure of the Office of the President; 3) is
limited to the restructuring of the internal organs of the Office of
the President Proper, transfer of functions and transfer of
agencies; and 4) only to achieve simplicity, economy and
efficiency.36 Such continuing authority of the President to
reorganize his office is limited, and by issuing Executive Order No.
1, the President overstepped the limits of this delegated
authority.
The OSG counters that there is nothing exclusively legislative
about the creation by the President of a fact-finding body such as
a truth commission. Pointing to numerous offices created by past
presidents, it argues that the authority of the President to create
public offices within the Office of the President Proper has long
been recognized.37 According to the OSG, the Executive, just like
the other two branches of government, possesses the inherent
authority to create fact-finding committees to assist it in the
performance of its constitutionally mandated functions and in the
exercise of its administrative functions.38 This power, as the OSG
explains it, is but an adjunct of the plenary powers wielded by the
President under Section 1 and his power of control under Section
17, both of Article VII of the Constitution.39
It contends that the President is necessarily vested with the
power to conduct fact-finding investigations, pursuant to his duty
to ensure that all laws are enforced by public officials and
employees of his department and in the exercise of his authority
to assume directly the functions of the executive department,
bureau and office, or interfere with the discretion of his
officials.40 The power of the President to investigate is not limited
to the exercise of his power of control over his subordinates in the
executive branch, but extends further in the exercise of his other
powers, such as his power to discipline subordinates,41 his power
TROPANG POTCHI
for rule making, adjudication and licensing purposes42 and in order
to be informed on matters which he is entitled to know.43
The OSG also cites the recent case of Banda v. Ermita,44 where it
was held that the President has the power to reorganize the
offices and agencies in the executive department in line with his
constitutionally granted power of control and by virtue of a valid
delegation of the legislative power to reorganize executive offices
under existing statutes.
Thus, the OSG concludes that the power of control necessarily
includes the power to create offices. For the OSG, the President
may create the PTC in order to, among others, put a closure to the
reported large scale graft and corruption in the government.45
The question, therefore, before the Court is this: Does the
creation of the PTC fall within the ambit of the power to
reorganize as expressed in Section 31 of the Revised
Administrative Code? Section 31 contemplates "reorganization"
as limited by the following functional and structural lines: (1)
restructuring the internal organization of the Office of the
President Proper by abolishing, consolidating or merging units
thereof or transferring functions from one unit to another; (2)
transferring any function under the Office of the President to any
other Department/Agency or vice versa; or (3) transferring any
agency under the Office of the President to any other
Department/Agency or vice versa. Clearly, the provision refers to
reduction of personnel, consolidation of offices, or abolition
thereof by reason of economy or redundancy of functions. These
point to situations where a body or an office is already existent
but a modification or alteration thereof has to be effected. The
creation of an office is nowhere mentioned, much less envisioned
in said provision. Accordingly, the answer to the question is in the
negative.
To say that the PTC is borne out of a restructuring of the Office of
the President under Section 31 is a misplaced supposition, even in
the plainest meaning attributable to the term "restructure"– an
"alteration of an existing structure." Evidently, the PTC was not
part of the structure of the Office of the President prior to the
enactment of Executive Order No. 1. As held in Buklod ng
Kawaning EIIB v. Hon. Executive Secretary,46
But of course, the list of legal basis authorizing the President to
reorganize any department or agency in the executive branch
does not have to end here. We must not lose sight of the very
source of the power – that which constitutes an express grant of
power. Under Section 31, Book III of Executive Order No. 292
(otherwise known as the Administrative Code of 1987), "the
President, subject to the policy in the Executive Office and in
order to achieve simplicity, economy and efficiency, shall have the
continuing authority to reorganize the administrative structure of
195
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
the Office of the President." For this purpose, he may transfer the
functions of other Departments or Agencies to the Office of the
President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we
ruled that reorganization "involves the reduction of personnel,
consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions." It takes place when there is
an alteration of the existing structure of government offices or
units therein, including the lines of control, authority and
responsibility between them. The EIIB is a bureau attached to the
Department of Finance. It falls under the Office of the President.
Hence, it is subject to the President’s continuing authority to
reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the
President’s power of control. Control is essentially the power to
alter or modify or nullify or set aside what a subordinate officer
had done in the performance of his duties and to substitute the
judgment of the former with that of the latter.47 Clearly, the
power of control is entirely different from the power to create
public offices. The former is inherent in the Executive, while the
latter finds basis from either a valid delegation from Congress, or
his inherent duty to faithfully execute the laws.
The question is this, is there a valid delegation of power from
Congress, empowering the President to create a public office?
According to the OSG, the power to create a truth commission
pursuant to the above provision finds statutory basis under P.D.
1416, as amended by P.D. No. 1772.48 The said law granted the
President the continuing authority to reorganize the national
government, including the power to group, consolidate bureaus
and agencies, to abolish offices, to transfer functions, to create
and classify functions, services and activities, transfer
appropriations, and to standardize salaries and materials. This
decree, in relation to Section 20, Title I, Book III of E.O. 292 has
been invoked in several cases such as Larin v. Executive
Secretary.49
The Court, however, declines to recognize P.D. No. 1416 as a
justification for the President to create a public office. Said decree
is already stale, anachronistic and inoperable. P.D. No. 1416 was a
delegation to then President Marcos of the authority to
reorganize the administrative structure of the national
government including the power to create offices and transfer
appropriations pursuant to one of the purposes of the decree,
embodied in its last "Whereas" clause:
WHEREAS, the transition towards the parliamentary form of
government will necessitate flexibility in the organization of the
national government.
Clearly, as it was only for the purpose of providing manageability
and resiliency during the interim, P.D. No. 1416, as amended by
P.D. No. 1772, became functus oficio upon the convening of the
First Congress, as expressly provided in Section 6, Article XVIII of
the 1987 Constitution. In fact, even the Solicitor General agrees
with this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was
the last whereas clause of P.D. 1416 says "it was enacted to
prepare the transition from presidential to parliamentary. Now, in
a parliamentary form of government, the legislative and executive
powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was
issued. Now would you agree with me that P.D. 1416 should not
be considered effective anymore upon the promulgation,
adoption, ratification of the 1987 Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416,
Your Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to
reorganize the entire National Government is deemed repealed,
at least, upon the adoption of the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.50
While the power to create a truth commission cannot pass muster
on the basis of P.D. No. 1416 as amended by P.D. No. 1772, the
creation of the PTC finds justification under Section 17, Article VII
of the Constitution, imposing upon the President the duty to
ensure that the laws are faithfully executed. Section 17 reads:
Section 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws
be faithfully executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of
power in the three principal branches of government is a grant of
all powers inherent in them. The President’s power to conduct
investigations to aid him in ensuring the faithful execution of laws
– in this case, fundamental laws on public accountability and
transparency – is inherent in the President’s powers as the Chief
Executive. That the authority of the President to conduct
investigations and to create bodies to execute this power is not
explicitly mentioned in the Constitution or in statutes does not
mean that he is bereft of such authority.51 As explained in the
landmark case of Marcos v. Manglapus: 52
TROPANG POTCHI
x x x. The 1987 Constitution, however, brought back the
presidential system of government and restored the separation of
legislative, executive and judicial powers by their actual
distribution among three distinct branches of government with
provision for checks and balances.
It would not be accurate, however, to state that "executive
power" is the power to enforce the laws, for the President is head
of state as well as head of government and whatever powers
inhere in such positions pertain to the office unless the
Constitution itself withholds it. Furthermore, the Constitution
itself provides that the execution of the laws is only one of the
powers of the President. It also grants the President other powers
that do not involve the execution of any provision of law, e.g., his
power over the country's foreign relations.
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise ofspecific powers
of the President, it maintains intact what is traditionally
considered as within the scope of "executive power." Corollarily,
the powers of the President cannot be said to be limited only to
the specific powers enumerated in the Constitution. In other
words, executive power is more than the sum of specific powers
so enumerated.
It has been advanced that whatever power inherent in the
government that is neither legislative nor judicial has to be
executive. x x x.
Indeed, the Executive is given much leeway in ensuring that our
laws are faithfully executed. As stated above, the powers of the
President are not limited to those specific powers under the
Constitution.53 One of the recognized powers of the President
granted pursuant to this constitutionally-mandated duty is the
power to create ad hoc committees. This flows from the obvious
need to ascertain facts and determine if laws have been faithfully
executed. Thus, in Department of Health v. Camposano,54 the
authority of the President to issue Administrative Order No. 298,
creating an investigative committee to look into the
administrative charges filed against the employees of the
Department of Health for the anomalous purchase of medicines
was upheld. In said case, it was ruled:
The Chief Executive’s power to create the Ad hoc Investigating
Committee cannot be doubted. Having been constitutionally
granted full control of the Executive Department, to which
respondents belong, the President has the obligation to ensure
that all executive officials and employees faithfully comply with
the law. With AO 298 as mandate, the legality of the investigation
is sustained. Such validity is not affected by the fact that the
investigating team and the PCAGC had the same composition, or
196
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
that the former used the offices and facilities of the latter in
conducting the inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc
investigating bodies to exist is to allow an inquiry into matters
which the President is entitled to know so that he can be properly
advised and guided in the performance of his duties relative to
the execution and enforcement of the laws of the land. And if
history is to be revisited, this was also the objective of the
investigative bodies created in the past like the PCAC, PCAPE,
PARGO, the Feliciano Commission, the Melo Commission and the
Zenarosa Commission. There being no changes in the government
structure, the Court is not inclined to declare such executive
power as non-existent just because the direction of the political
winds have changed.
On the charge that Executive Order No. 1 transgresses the power
of Congress to appropriate funds for the operation of a public
office, suffice it to say that there will be no appropriation but only
an allotment or allocations of existing funds already appropriated.
Accordingly, there is no usurpation on the part of the Executive of
the power of Congress to appropriate funds. Further, there is no
need to specify the amount to be earmarked for the operation of
the commission because, in the words of the Solicitor General,
"whatever funds the Congress has provided for the Office of the
President will be the very source of the funds for the
commission."55 Moreover, since the amount that would be
allocated to the PTC shall be subject to existing auditing rules and
regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The President’s power to conduct investigations to ensure that
laws are faithfully executed is well recognized. It flows from the
faithful-execution clause of the Constitution under Article VII,
Section 17 thereof.56 As the Chief Executive, the president
represents the government as a whole and sees to it that all laws
are enforced by the officials and employees of his department. He
has the authority to directly assume the functions of the executive
department.57
Invoking this authority, the President constituted the PTC to
primarily investigate reports of graft and corruption and to
recommend the appropriate action. As previously stated, no
quasi-judicial powers have been vested in the said body as it
cannot adjudicate rights of persons who come before it. It has
been said that "Quasi-judicial powers involve the power to hear
and determine questions of fact to which the legislative policy is
to apply and to decide in accordance with the standards laid down
by law itself in enforcing and administering the same law." 58 In
simpler terms, judicial discretion is involved in the exercise of
these quasi-judicial power, such that it is exclusively vested in the
TROPANG POTCHI
judiciary and must be clearly authorized by the legislature in the accompanied by the authority of applying the law to the factual
case of administrative agencies. conclusions to the end that the controversy may be decided or
resolved authoritatively, finally and definitively, subject to appeals
or modes of review as may be provided by law.60 Even
The distinction between the power to investigate and the power
respondents themselves admit that the commission is bereft of
to adjudicate was delineated by the Court in Cariño v. Commission
any quasi-judicial power.61
on Human Rights.59 Thus:
Contrary to petitioners’ apprehension, the PTC will not supplant
"Investigate," commonly understood, means to examine, explore,
the Ombudsman or the DOJ or erode their respective powers. If at
inquire or delve or probe into, research on, study. The dictionary
all, the investigative function of the commission will complement
definition of "investigate" is "to observe or study closely: inquire
those of the two offices. As pointed out by the Solicitor General,
into systematically: "to search or inquire into: x x to subject to an
the recommendation to prosecute is but a consequence of the
official probe x x: to conduct an official inquiry." The purpose of
overall task of the commission to conduct a fact-finding
investigation, of course, is to discover, to find out, to learn, obtain
investigation."62 The actual prosecution of suspected offenders,
information. Nowhere included or intimated is the notion of
much less adjudication on the merits of the charges against
settling, deciding or resolving a controversy involved in the facts
them,63 is certainly not a function given to the commission. The
inquired into by application of the law to the facts established by
phrase, "when in the course of its investigation," under Section
the inquiry.
2(g), highlights this fact and gives credence to a contrary
interpretation from that of the petitioners. The function of
The legal meaning of "investigate" is essentially the same: "(t)o determining probable cause for the filing of the appropriate
follow up step by step by patient inquiry or observation. To trace complaints before the courts remains to be with the DOJ and the
or track; to search into; to examine and inquire into with care and Ombudsman.64
accuracy; to find out by careful inquisition; examination; the
taking of evidence; a legal inquiry;" "to inquire; to make an
At any rate, the Ombudsman’s power to investigate under R.A.
investigation," "investigation" being in turn described as "(a)n
No. 6770 is not exclusive but is shared with other similarly
administrative function, the exercise of which ordinarily does not
authorized government agencies. Thus, in the case of
require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial
Ombudsman v. Galicia,65 it was written:
or otherwise, for the discovery and collection of facts concerning
a certain matter or matters."
This power of investigation granted to the Ombudsman by the
1987 Constitution and The Ombudsman Act is not exclusive but is
"Adjudicate," commonly or popularly understood, means to
shared with other similarly authorized government agencies such
adjudge, arbitrate, judge, decide, determine, resolve, rule on,
as the PCGG and judges of municipal trial courts and municipal
settle. The dictionary defines the term as "to settle finally (the
circuit trial courts. The power to conduct preliminary investigation
rights and duties of the parties to a court case) on the merits of
on charges against public employees and officials is likewise
issues raised: x x to pass judgment on: settle judicially: x x act as
concurrently shared with the Department of Justice. Despite the
judge." And "adjudge" means "to decide or rule upon as a judge
passage of the Local Government Code in 1991, the Ombudsman
or with judicial or quasi-judicial powers: x x to award or grant
retains concurrent jurisdiction with the Office of the President and
judicially in a case of controversy x x."
the local Sanggunians to investigate complaints against local
elective officials. [Emphasis supplied].
In the legal sense, "adjudicate" means: "To settle in the exercise
of judicial authority. To determine finally. Synonymous
Also, Executive Order No. 1 cannot contravene the power of the
with adjudge in its strictest sense;" and "adjudge" means: "To
Ombudsman to investigate criminal cases under Section 15 (1) of
pass on judicially, to decide, settle or decree, or to sentence or
R.A. No. 6770, which states:
condemn. x x. Implies a judicial determination of a fact, and the
entry of a judgment." [Italics included. Citations Omitted]
(1) Investigate and prosecute on its own or on complaint by any
person, any act or omission of any public officer or employee,
Fact-finding is not adjudication and it cannot be likened to the
office or agency, when such act or omission appears to be illegal,
judicial function of a court of justice, or even a quasi-judicial
unjust, improper or inefficient. It has primary jurisdiction over
agency or office. The function of receiving evidence and
cases cognizable by the Sandiganbayan and, in the exercise of its
ascertaining therefrom the facts of a controversy is not a judicial
primary jurisdiction, it may take over, at any stage, from any
function. To be considered as such, the act of receiving evidence
investigatory agency of government, the investigation of such
and arriving at factual conclusions in a controversy must be
cases. [Emphases supplied]
197
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
The act of investigation by the Ombudsman as enunciated above
contemplates the conduct of a preliminary investigation or the
determination of the existence of probable cause. This is
categorically out of the PTC’s sphere of functions. Its power to
investigate is limited to obtaining facts so that it can advise and
guide the President in the performance of his duties relative to
the execution and enforcement of the laws of the land. In this
regard, the PTC commits no act of usurpation of the
Ombudsman’s primordial duties.
The same holds true with respect to the DOJ. Its authority under
Section 3 (2), Chapter 1, Title III, Book IV in the Revised
Administrative Code is by no means exclusive and, thus, can be
shared with a body likewise tasked to investigate the commission
of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that
the findings of the PTC are to be accorded conclusiveness. Much
like its predecessors, the Davide Commission, the Feliciano
Commission and the Zenarosa Commission, its findings would, at
best, be recommendatory in nature. And being so, the
Ombudsman and the DOJ have a wider degree of latitude to
decide whether or not to reject the recommendation. These
offices, therefore, are not deprived of their mandated duties but
will instead be aided by the reports of the PTC for possible
indictments for violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the
investigative power of the President, the Court finds difficulty in
upholding the constitutionality of Executive Order No. 1 in view of
its apparent transgression of the equal protection clause
enshrined in Section 1, Article III (Bill of Rights) of the 1987
Constitution. Section 1 reads:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the
equal protection of the laws.
The petitioners assail Executive Order No. 1 because it is violative
of this constitutional safeguard. They contend that it does not
apply equally to all members of the same class such that the
intent of singling out the "previous administration" as its sole
object makes the PTC an "adventure in partisan hostility."66 Thus,
in order to be accorded with validity, the commission must also
cover reports of graft and corruption in virtually all
administrations previous to that of former President Arroyo. 67
The petitioners argue that the search for truth behind the
reported cases of graft and corruption must encompass acts
TROPANG POTCHI
committed not only during the administration of former President lead to recovery of public monies illegally dissipated, the policy
Arroyo but also during prior administrations where the "same lessons to be learned to ensure that anti-corruption laws are
magnitude of controversies and anomalies" 68 were reported to faithfully executed, are more easily established in the regime that
have been committed against the Filipino people. They assail the immediately precede the current administration.
classification formulated by the respondents as it does not fall
under the recognized exceptions because first, "there is no
Fourth. Many administrations subject the transactions of their
substantial distinction between the group of officials targeted for
predecessors to investigations to provide closure to issues that
investigation by Executive Order No. 1 and other groups or
are pivotal to national life or even as a routine measure of due
persons who abused their public office for personal gain; and
diligence and good housekeeping by a nascent administration like
second, the selective classification is not germane to the purpose
the Presidential Commission on Good Government (PCGG),
of Executive Order No. 1 to end corruption."69 In order to attain
created by the late President Corazon C. Aquino under Executive
constitutional permission, the petitioners advocate that the
Order No. 1 to pursue the recovery of ill-gotten wealth of her
commission should deal with "graft and grafters prior and
predecessor former President Ferdinand Marcos and his cronies,
subsequent to the Arroyo administration with the strong arm of
and the Saguisag Commission created by former President Joseph
the law with equal force."70
Estrada under Administrative Order No, 53, to form an ad-hoc and
independent citizens’ committee to investigate all the facts and
Position of respondents circumstances surrounding "Philippine Centennial projects" of his
predecessor, former President Fidel V. Ramos. 73 [Emphases
supplied]
According to respondents, while Executive Order No. 1 identifies
the "previous administration" as the initial subject of the
investigation, following Section 17 thereof, the PTC will not Concept of the Equal Protection Clause
confine itself to cases of large scale graft and corruption solely
during the said administration.71 Assuming arguendo that the
One of the basic principles on which this government was
commission would confine its proceedings to officials of the
founded is that of the equality of right which is embodied in
previous administration, the petitioners argue that no offense is
Section 1, Article III of the 1987 Constitution. The equal protection
committed against the equal protection clause for "the
of the laws is embraced in the concept of due process, as every
segregation of the transactions of public officers during the
unfair discrimination offends the requirements of justice and fair
previous administration as possible subjects of investigation is a
play. It has been embodied in a separate clause, however, to
valid classification based on substantial distinctions and is
provide for a more specific guaranty against any form of undue
germane to the evils which the Executive Order seeks to
favoritism or hostility from the government. Arbitrariness in
correct."72 To distinguish the Arroyo administration from past
general may be challenged on the basis of the due process clause.
administrations, it recited the following:
But if the particular act assailed partakes of an unwarranted
partiality or prejudice, the sharper weapon to cut it down is the
First. E.O. No. 1 was issued in view of widespread reports of large equal protection clause.74
scale graft and corruption in the previous administration which
have eroded public confidence in public institutions. There is,
"According to a long line of decisions, equal protection simply
therefore, an urgent call for the determination of the truth
requires that all persons or things similarly situated should be
regarding certain reports of large scale graft and corruption in the
treated alike, both as to rights conferred and responsibilities
government and to put a closure to them by the filing of the
imposed."75 It "requires public bodies and institutions to treat
appropriate cases against those involved, if warranted, and to
similarly situated individuals in a similar manner."76 "The purpose
deter others from committing the evil, restore the people’s faith
of the equal protection clause is to secure every person within a
and confidence in the Government and in their public servants.
state’s jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a
Second. The segregation of the preceding administration as the statue or by its improper execution through the state’s duly
object of fact-finding is warranted by the reality that unlike with constituted authorities."77 "In other words, the concept of equal
administrations long gone, the current administration will most justice under the law requires the state to govern impartially, and
likely bear the immediate consequence of the policies of the it may not draw distinctions between individuals solely on
previous administration. differences that are irrelevant to a legitimate governmental
objective."78
Third. The classification of the previous administration as a
separate class for investigation lies in the reality that The equal protection clause is aimed at all official state actions,
the evidence of possible criminal activity, the evidence that could not just those of the legislature.79 Its inhibitions cover all the
198
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
departments of the government including the political and
executive departments, and extend to all actions of a state
denying equal protection of the laws, through whatever agency or
whatever guise is taken. 80
It, however, does not require the universal application of the laws
to all persons or things without distinction. What it simply
requires is equality among equals as determined according to a
valid classification. Indeed, the equal protection clause permits
classification. Such classification, however, to be valid must pass
the test ofreasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to
the purpose of the law; (3) It is not limited to existing conditions
only; and
(4) It applies equally to all members of the same
class.81 "Superficial differences do not make for a valid
classification."82
For a classification to meet the requirements of constitutionality,
it must include or embrace all persons who naturally belong to
the class.83 "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights
conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that
the members of the class should possess the same characteristics
in equal degree. Substantial similarity will suffice; and as long as
this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a
class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the
non-application of the law to him."84
The classification must not be based on existing circumstances
only, or so constituted as to preclude addition to the number
included in the class. It must be of such a nature as to embrace all
those who may thereafter be in similar circumstances and
conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. As elucidated in
Victoriano v. Elizalde Rope Workers' Union85 and reiterated in a
long line of cases,86
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the
state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man,
woman and child should be affected alike by a statute. Equality of
operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things
which are different in fact be treated in law as though they were
the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain
particulars. A law is not invalid because of simple inequality. The
very idea of classification is that of inequality, so that it goes
without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a
valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which
make for real differences, that it must be germane to the purpose
of the law; that it must not be limited to existing conditions only;
and that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis
and is not palpably arbitrary. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should
be struck down as violative of the equal protection clause. The
clear mandate of the envisioned truth commission is to
investigate and find out the truth "concerning the reported cases
of graft and corruption during the previous administration"87 only.
The intent to single out the previous administration is plain,
patent and manifest. Mention of it has been made in at least
three portions of the questioned executive order. Specifically,
these are:
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported
cases of graft and corruption during the previous administration,
and which will recommend the prosecution of the offenders and
secure justice for all;
SECTION 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the "COMMISSION," which shall primarily seek and find the truth
on, and toward this end, investigate reports of graft and
corruption of such scale and magnitude that shock and offend the
moral and ethical sensibilities of the people, committed by public
officers and employees, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration; and thereafter recommend the appropriate action
or measure to be taken thereon to ensure that the full measure of
justice shall be served without fear or favor.
SECTION 2. Powers and Functions. – The Commission, which shall
have all the powers of an investigative body under Section 37,
TROPANG POTCHI
Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of
reported cases of graft and corruption referred to in Section 1,
involving third level public officers and higher, their co-principals,
accomplices and accessories from the private sector, if any, during
the previous administration and thereafter submit its finding and
recommendations to the President, Congress and the
Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo
administration is but just a member of a class, that is, a class of
past administrations. It is not a class of its own. Not to include
past administrations similarly situated constitutes arbitrariness
which the equal protection clause cannot sanction. Such
discriminating differentiation clearly reverberates to label the
commission as a vehicle for vindictiveness and selective
retribution.
Though the OSG enumerates several differences between the
Arroyo administration and other past administrations, these
distinctions are not substantial enough to merit the restriction of
the investigation to the "previous administration" only. The
reports of widespread corruption in the Arroyo administration
cannot be taken as basis for distinguishing said administration
from earlier administrations which were also blemished by similar
widespread reports of impropriety. They are not inherent in, and
do not inure solely to, the Arroyo administration. As Justice
Isagani Cruz put it, "Superficial differences do not make for a valid
classification."88
The public needs to be enlightened why Executive Order No. 1
chooses to limit the scope of the intended investigation to the
previous administration only. The OSG ventures to opine that "to
include other past administrations, at this point, may
unnecessarily overburden the commission and lead it to lose its
effectiveness."89 The reason given is specious. It is without doubt
irrelevant to the legitimate and noble objective of the PTC to
stamp out or "end corruption and the evil it breeds."90
The probability that there would be difficulty in unearthing
evidence or that the earlier reports involving the earlier
administrations were already inquired into is beside the point.
Obviously, deceased presidents and cases which have already
prescribed can no longer be the subjects of inquiry by the PTC.
Neither is the PTC expected to conduct simultaneous
investigations of previous administrations, given the body’s
limited time and resources. "The law does not require the
impossible" (Lex non cogit ad impossibilia). 91
Given the foregoing physical and legal impossibility, the Court
logically recognizes the unfeasibility of investigating almost a
century’s worth of graft cases. However, the fact remains that
199
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Executive Order No. 1 suffers from arbitrary classification. The
PTC, to be true to its mandate of searching for the truth, must not
exclude the other past administrations. The PTC must, at least,
have the authority to investigate all past administrations.
While reasonable prioritization is permitted, it should not be
arbitrary lest it be struck down for being unconstitutional. In the
often quoted language of Yick Wo v. Hopkins,92
Though the law itself be fair on its face and impartial in
appearance, yet, if applied and administered by public authority
with an evil eye and an unequal hand, so as practically to make
unjust and illegal discriminations between persons in similar
circumstances, material to their rights, the denial of equal justice
is still within the prohibition of the constitution. [Emphasis
supplied]
It could be argued that considering that the PTC is an ad hoc body,
its scope is limited. The Court, however, is of the considered view
that although its focus is restricted, the constitutional guarantee
of equal protection under the laws should not in any way be
circumvented. The Constitution is the fundamental and
paramount law of the nation to which all other laws must
conform and in accordance with which all private rights
determined and all public authority administered.93 Laws that do
not conform to the Constitution should be stricken down for being
unconstitutional.94 While the thrust of the PTC is specific, that is,
for investigation of acts of graft and corruption, Executive Order
No. 1, to survive, must be read together with the provisions of the
Constitution. To exclude the earlier administrations in the guise of
"substantial distinctions" would only confirm the petitioners’
lament that the subject executive order is only an "adventure in
partisan hostility." In the case of US v. Cyprian,95it was written: "A
rather limited number of such classifications have routinely been
held or assumed to be arbitrary; those include: race, national
origin, gender, political activity or membership in a political
party, union activity or membership in a labor union, or more
generally the exercise of first amendment rights."
To reiterate, in order for a classification to meet the requirements
of constitutionality, it must include or embrace all persons who
naturally belong to the class.96 "Such a classification must not be
based on existing circumstances only, or so constituted as to
preclude additions to the number included within a class, but
must be of such a nature as to embrace all those who may
thereafter be in similar circumstances and conditions.
Furthermore, all who are in situations and circumstances which
are relative to the discriminatory legislation and which are
indistinguishable from those of the members of the class must be
brought under the influence of the law and treated by it in the
same way as are the members of the class." 97
The Court is not unaware that "mere underinclusiveness is not
fatal to the validity of a law under the equal protection
clause."98 "Legislation is not unconstitutional merely because it is
not all-embracing and does not include all the evils within its
reach."99 It has been written that a regulation challenged under
the equal protection clause is not devoid of a rational predicate
simply because it happens to be incomplete.100 In several
instances, the underinclusiveness was not considered a valid
reason to strike down a law or regulation where the purpose can
be attained in future legislations or regulations. These cases refer
to the "step by step" process.101 "With regard to equal protection
claims, a legislature does not run the risk of losing the entire
remedial scheme simply because it fails, through inadvertence or
otherwise, to cover every evil that might conceivably have been
attacked."102
In Executive Order No. 1, however, there is no inadvertence. That
the previous administration was picked out was deliberate and
intentional as can be gleaned from the fact that it was
underscored at least three times in the assailed executive order. It
must be noted that Executive Order No. 1 does not even mention
any particular act, event or report to be focused on unlike the
investigative commissions created in the past. "The equal
protection clause is violated by purposeful and intentional
discrimination."103
To disprove petitioners’ contention that there is deliberate
discrimination, the OSG clarifies that the commission does not
only confine itself to cases of large scale graft and corruption
committed during the previous administration.104 The OSG points
to Section 17 of Executive Order No. 1, which provides:
SECTION 17. Special Provision Concerning Mandate. If and when
in the judgment of the President there is a need to expand the
mandate of the Commission as defined in Section 1 hereof to
include the investigation of cases and instances of graft and
corruption during the prior administrations, such mandate may be
so extended accordingly by way of a supplemental Executive
Order.
The Court is not convinced. Although Section 17 allows the
President the discretion to expand the scope of investigations of
the PTC so as to include the acts of graft and corruption
committed in other past administrations, it does not guarantee
that they would be covered in the future. Such expanded
mandate of the commission will still depend on the whim and
caprice of the President. If he would decide not to include them,
the section would then be meaningless. This will only fortify the
fears of the petitioners that the Executive Order No. 1 was
"crafted to tailor-fit the prosecution of officials and personalities
of the Arroyo administration." 105
TROPANG POTCHI
The Court tried to seek guidance from the pronouncement in the
case of Virata v. Sandiganbayan,106 that the "PCGG Charter
(composed of Executive Orders Nos. 1, 2 and 14) does not violate
the equal protection clause." The decision, however, was devoid
of any discussion on how such conclusory statement was arrived
at, the principal issue in said case being only the sufficiency of a
cause of action.
A final word
The issue that seems to take center stage at present is - whether
or not the Supreme Court, in the exercise of its constitutionally
mandated power of Judicial Review with respect to recent
initiatives of the legislature and the executive department, is
exercising undue interference. Is the Highest Tribunal, which is
expected to be the protector of the Constitution, itself guilty of
violating fundamental tenets like the doctrine of separation of
powers? Time and again, this issue has been addressed by the
Court, but it seems that the present political situation calls for it
to once again explain the legal basis of its action lest it continually
be accused of being a hindrance to the nation’s thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1
of the 1987 Constitution, is vested with Judicial Power that
"includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a
grave of abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government."
Furthermore, in Section 4(2) thereof, it is vested with the power
of judicial review which is the power to declare a treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation
unconstitutional. This power also includes the duty to rule on the
constitutionality of the application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances, and
other regulations. These provisions, however, have been fertile
grounds of conflict between the Supreme Court, on one hand, and
the two co-equal bodies of government, on the other. Many times
the Court has been accused of asserting superiority over the other
departments.
To answer this accusation, the words of Justice Laurel would be a
good source of enlightenment, to wit: "And when the judiciary
mediates to allocate constitutional boundaries, it does not assert
any superiority over the other departments; it does not in reality
nullify or invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution
200
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
and to establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them."107
Thus, the Court, in exercising its power of judicial review, is not
imposing its own will upon a co-equal body but rather simply
making sure that any act of government is done in consonance
with the authorities and rights allocated to it by the Constitution.
And, if after said review, the Court finds no constitutional
violations of any sort, then, it has no more authority of proscribing
the actions under review. Otherwise, the Court will not be
deterred to pronounce said act as void and unconstitutional.
It cannot be denied that most government actions are inspired
with noble intentions, all geared towards the betterment of the
nation and its people. But then again, it is important to remember
this ethical principle: "The end does not justify the means." No
matter how noble and worthy of admiration the purpose of an
act, but if the means to be employed in accomplishing it is simply
irreconcilable with constitutional parameters, then it cannot still
be allowed.108 The Court cannot just turn a blind eye and simply
let it pass. It will continue to uphold the Constitution and its
enshrined principles.
"The Constitution must ever remain supreme. All must bow to the
mandate of this law. Expediency must not be allowed to sap its
strength nor greed for power debase its rectitude."109
Lest it be misunderstood, this is not the death knell for a truth
commission as nobly envisioned by the present administration.
Perhaps a revision of the executive issuance so as to include the
earlier past administrations would allow it to pass the test of
reasonableness and not be an affront to the Constitution. Of all
the branches of the government, it is the judiciary which is the
most interested in knowing the truth and so it will not allow itself
to be a hindrance or obstacle to its attainment. It must, however,
be emphasized that the search for the truth must be within
constitutional bounds for "ours is still a government of laws and
not of men."110
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is
hereby declared UNCONSTITUTIONAL insofar as it is violative of
the equal protection clause of the Constitution.
As also prayed for, the respondents are hereby ordered to cease
and desist from carrying out the provisions of Executive Order No.
1.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 95367 May 23, 1995
COMMISSIONER JOSE T. ALMONTE, VILLAMOR C. PEREZ, NERIO
ROGADO, and ELISA RIVERA, petitioners,
vs.
HONORABLE CONRADO M. VASQUEZ and CONCERNED
CITIZENS, respondents.
MENDOZA, J.:
This is a petition for certiorari, prohibition, and mandamus to
annul the subpoena duces tecum and orders issued by
respondent Ombudsman, requiring petitioners Nerio Rogado and
Elisa Rivera, as chief accountant and record custodian,
respectively, of the Economic Intelligence and Investigation
Bureau (EIIB) to produce "all documents relating to Personal
Services Funds for the year 1988 and all evidence, such as
vouchers (salary) for the whole plantilla of EIIB for 1988" and to
enjoin him from enforcing his orders.
Petitioner Jose T. Almonte was formerly Commissioner of the EIIB,
while Villamor C. Perez is Chief of the EIIB's Budget and Fiscal
Management Division. The subpoena duces tecum was issued by
the Ombudsman in connection with his investigation of an
anonymous letter alleging that funds representing savings from
unfilled positions in the EIIB had been illegally disbursed. The
letter, purporting to have been written by an employee of the EIIB
and a concerned citizen, was addressed to the Secretary of
Finance, with copies furnished several government offices,
including the Office of the Ombudsman.
The letter reads in pertinent parts:
1 These are the things that I have been observing. During the
implementation of E.O. 127 on May 1, 1988, one hundred ninety
(190) personnel were dismissed. Before that implementation, we
had a monthly savings of P500,000.00 from unfilled plantilla
position plus the implementation of RA 6683 wherein seventy (70)
regular employees availed a total amount of P1,400,000.00 was
saved from the government monthly. The question is, how do
TROPANG POTCHI
they used or disbursed this savings? The EIIB has a syndicate
headed by the Chief of Budget Division who is manipulating funds
and also the brain of the so called "ghost agents" or the
"Emergency Intelligence Agents" (EIA). The Commissioner of EIIB
has a biggest share on this. Among his activities are:
a) Supporting RAM wherein he is involved. He gives big amount
especially during the Dec. Failed coup.
b) Payment for thirty five (30) mini UZI's.
c) Payment for the purchased of Maxima '87 for personal used of
the Commissioner.
d) Another observation was the agents under the Director of NCR
EIIB is the sole operating unit within Metro Manila which was
approved by no less than the Commissioner due to anomalous
activities of almost all agents assigned at the central office directly
under the Commissioner. Retired Brig. Gen. Almonte as one of the
Anti-Graft board member of the Department of Finance should
not tolerate this. However, the Commissioner did not investigate
his own men instead, he placed them under the 15-30 payroll.
e) Many more which are personal.
2. Sir, my question is this. Can your good office investigate EII
intelligence funds particularly Personal Services (01) Funds? I
wonder why the Dep't of Budget & Mgmt. cannot compel EIIB to
submit an actual filled up position because almost half of it are
vacant and still they are releasing it. Are EIIB plantilla position
classified? It is included in the Personal Services Itemization (PSI)
and I believe it is not classified and a ruling from Civil Service
Commission that EIIB is not exempted from Civil Service. Another
info, when we had salary differential last Oct '88 all money for the
whole plantilla were released and from that alone, Millions were
saved and converted to ghost agents of EIA.
3. Another thing that I have observed was the Chief Budget
Division possesses high caliber firearms such as a mini UZI,
Armalite rifle and two (2) 45 cal. pistol issued to him by the
Assistant Commissioner wherein he is not an agent of EIIB and
authorized as such according to memorandum order number 283
signed by the President of the Republic of the Philippines effective
9 Jan. 1990.
Another observation was when EIIB agents apprehended a certain
civilian who possesses numerous assorted high powered firearms.
Agents plus one personnel from the legal proclaimed only five (5)
firearms and the remaining was pilfered by them.
201
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Another observation is almost all EIIB agents collects payroll from
the big time smuggler syndicate monthly and brokers every week
for them not to be apprehended.
Another observation is the commissioner allocates funds coming
from the intelligence funds to the media to sustain their good
image of the bureau.
In his comment 1 on the letter-complaint, petitioner Almonte
denied that as a result of the separation of personnel, the EIIB had
made some savings. He averred that the only funds released to his
agency by the Department of Budget and Management (DBM)
were those corresponding to 947 plantilla positions which were
filled. He also denied that there were "ghost agents" in the EIIB
and claimed that disbursements for "open" (i.e., "overt"
personnel) and "closed" (i.e., "covert" personnel) plantillas of the
agency had been cleared by the Commission on Audit (COA); that
the case of the 30 Uzis had already been investigated by Congress,
where it was shown that it was not the EIIB but an agent who had
spent for the firearms and they were only loaned to the EIIB
pending appropriation by Congress; that, contrary to the charge
that a Maxima car had been purchased for his use, he was using a
government issued car from the NICA; that it was his prerogative
as Commissioner to "ground" agents in the EIIB main office so that
they could be given reorientation and retraining; that the
allegation that the EIIB operatives pilfered smuggled firearms was
without factual basis because the firearms were the subject of
seizure proceedings before the Collector of Customs, Port of
Manila; that the EIIB had been uncompromising toward
employees found involved in anomalous activities; and that
intelligence funds had not been used for media propaganda and if
media people went to the EIIB it was because of newsworthy
stories. Petitioner asked that the complaint be dismissed and the
case considered closed.
Similarly petitioner Perez, budget chief of the EIIB, denied in his
comment 2 dated April 3, 1990 that savings had been realized
from the implementation of E.O. No. 127, since the DBM provided
allocations for only the remaining 947 personnel. He said that the
disbursement of funds for the plantilla positions for "overt" and
"covert" personnel had been cleared by the COA and that the
high-powered firearms had been issued for the protection of EIIB
personnel attending court hearings and the Finance Officer in
withdrawing funds from the banks.
The Graft Investigation Officer of the Ombudsman's office, Jose F.
Saño, found the comments unsatisfactory, being "unverified and
plying only on generalizations without meeting specifically the
points raised by complainant as constitutive of the alleged
anomalies." 3 He, therefore, asked for authority to conduct a
preliminary investigation. Anticipating the grant of his request, he
issued a subpoena 4 to petitioners Almonte and Perez, requiring
TROPANG POTCHI
them to submit their counter-affidavits and the affidavits of their II. WHETHER OR NOT "ALL DOCUMENTS RELATING TO PERSONAL
witnesses, as well as a subpoenaduces tecum 5 to the Chief of the SERVICES FUNDS FOR THE YEAR 1988 AND ALL EVIDENCES, SUCH
EIIB's Accounting Division ordering him to bring "all documents AS VOUCHERS (SALARY) FOR THE WHOLE PLANTILLA OF EIIB FOR
relating to Personal Services Funds for the year 1988 and all 1988" ARE CLASSIFIED AND, THEREFORE, BEYOND THE REACH OF
evidence, such as vouchers (salary) for the whole plantilla of EIIB PUBLIC RESPONDENT'S SUBPOENADUCES TECUM.
for 1988."
I.
Petitioners Almonte and Perez moved to quash the subpoena and
the subpoena duces tecum. In his Order dated June 15,
There are several subsidiary issues raised by petitioners, but the
1990, 6 respondent Ombudsman granted the motion to quash the
principal ones revolve on the question whether petitioners can be
subpoena in view of the fact that there were no affidavits filed
ordered to produce documents relating to personal services and
against petitioners. But he denied their motion to quash the
salary vouchers of EIIB employees on the plea that such
subpoena duces tecum. He ruled that petitioners were not being
documents are classified. Disclosure of the documents in question
forced to produce evidence against themselves, since the
is resisted on the ground that "knowledge of EIIB's documents
subpoena duces tecum was directed to the Chief Accountant,
relative to its Personal Services Funds and its plantilla . . . will
petitioner Nerio Rogado. In addition the Ombudsman ordered the
necessarily [lead to] knowledge of its operations, movements,
Chief of the Records a Section of the EIIB, petitioner Elisa Rivera,
targets, strategies, and tactics and the whole of its being" and this
to produce before the investigator "all documents relating to
could "destroy the EIIB." 9
Personnel Service Funds, for the year 1988, and all documents,
salary vouchers for the whole plantilla of the EIIB for 1988, within
ten (10) days from receipt hereof." Petitioners do not question the power of the Ombudsman to issue
a subpoena duces tecum nor the relevancy or materiality of the
documents required to be produced, to the pending investigation
Petitioners Almonte and Perez moved for a reconsideration,
in the Ombudsman's office. Accordingly, the focus of discussion
arguing that Rogado and Rivera were EIIB employees under their
should be on the Government's claim of privilege.
supervision and that the Ombudsman was doing indirectly what
he could not do directly, i.e., compelling them (petitioners
Almonte and Perez) to produce evidence against themselves. A.
At common law a governmental privilege against disclosure is
Petitioners' motion was denied in respondent Ombudsman's
recognized with respect to state secrets bearing on military,
order dated August 6, 1990. Hence, this petition which questions
diplomatic and similar matters. This privilege is based upon public
the orders of June 15, 1990 and August 6, 1990 of respondent
interest of such paramount importance as in and of itself
Ombudsman.
transcending the individual interests of a private citizen, even
though, as a consequence thereof, the plaintiff cannot enforce his
To put this case in perspective it should be stated at the outset
legal rights. 10
that it does not concern a demand by a citizen for information
under the freedom of information guarantee of the
In addition, in the litigation over the Watergate tape subpoena in
Constitution. 7 Rather it concerns the power of the Office of the
1973, the U.S. Supreme Court recognized the right of the
Ombudsman to obtain evidence in connection with an
President to the confidentiality of his conversations and
investigation conducted by it vis-a-vis the claim of privilege of an
correspondence, which it likened to "the claim of confidentiality
agency of the Government. Thus petitioners raise the following
of judicial deliberations." Said the Court in United States v.
issues: 8
Nixon: 11
I. WHETHER OR NOT A CASE BROUGHT ABOUT BY AN UNSIGNED
AND UNVERIFIED LETTER COMPLAINT IS AN "APPROPRIATE CASE" The expectation of a President to the confidentiality of his
WITHIN THE CONCEPT OF THE CONSTITUTION IN WHICH PUBLIC conversations and correspondence, like the claim of
confidentiality of judicial deliberations, for example, has all the
RESPONDENT CAN OBLIGE PETITIONERS BY VIRTUE OF HIS
values to which we accord deference for the privacy of all citizens
SUBPOENA DUCES TECUM TO PRODUCE TO HIM "ALL
and, added to those values, is the necessity for protection of the
DOCUMENTS RELATING TO PERSONAL SERVICES FUNDS FOR THE
public interest in candid, objective, and even blunt or harsh
YEAR 1988 AND ALL EVIDENCES, SUCH AS VOUCHERS (SALARY)
opinions in Presidential decision-making. A President and those
FOR THE WHOLE PLANTILLA OF EIIB FOR 1988."
who assist him must be free to explore alternatives in the process
of shaping policies and making decisions and to do so in a way
202
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
many would be unwilling to express except privately. These are
the considerations justifying a presumptive privilege for
Presidential communications. The privilege is fundamental to the
operation of the government and inextricably rooted in the
separation of powers under the Constitution. . . .
Thus, the Court for the first time gave executive privilege a
constitutional status and a new name, although not necessarily a
new birth. 12
"The confidentiality of judicial deliberations" mentioned in the
opinion of the Court referred to the fact that Justices of the U.S.
Supreme Court and judges of lower federal courts have
traditionally treated their working papers and judicial notes as
private property. A 1977 proposal in the U.S. Congress that
Justices and judges of lower federal courts "should be encouraged
to make such arrangements as will assure the preservation and
eventual availability of their personal papers, especially the
deposit of their papers in the same depository they select for
[their] Public Papers" 13 was rebuffed by the Justices who, in a
letter to the Chairman of the Subcommittee on Regulation and
Government Information of the U.S. Senate, referred to "difficult
concerns respecting the appropriate separation that must be
maintained between the legislative branch and this Court." 14
There are, in addition to such privileges, statutorily-created ones
such as the Government's privilege to withhold the identity of
persons who furnish information of violations of laws. 15
With respect to the privilege based on state secret, the rule was
stated by the U.S. Supreme Court as follows:
Judicial control over the evidence in a case cannot be abdicated to
the caprice of executive officers. Yet we will not go so far as to say
that the court may automatically require a complete disclosure to
the judge before the claim of privilege will be accepted in any
case. It may be possible to satisfy the court, from all the
circumstances of the case, that there is a reasonable danger that
compulsion of the evidence will expose military matters which, in
the interest of national security, should not be divulged. When
this is the case, the occasion for the privilege is appropriate, and
the court should not jeopardize the security which the privilege is
meant to protect by insisting upon an examination of the
evidence, even by the judge alone, in chambers. . . . In each case,
the showing of necessity which is made will determine how far
the court should probe in satisfying itself that the occasion for
invoking the privilege is appropriate. Where there is a strong
showing of necessity, the claim of privilege should not be lightly
accepted, but even the most compelling necessity cannot
overcome the claim of privilege if the court is ultimately satisfied
that military secrets are at stake. A fortiori, where necessity is
dubious, a formal claim of privilege, made under the
circumstances of this case, will have to prevail. 16
On the other hand, where the claim of confidentiality does not
rest on the need to protect military, diplomatic or other national
security secrets but on a general public interest in the
confidentiality of his conversations, courts have declined to find in
the Constitution an absolute privilege of the President against a
subpoena considered essential to the enforcement of criminal
laws. 17
B.
In the case at bar, there is no claim that military or diplomatic
secrets will be disclosed by the production of records pertaining
to the personnel of the EIIB. Indeed, EIIB's function is the
gathering and evaluation of intelligence reports and information
regarding "illegal activities affecting the national economy, such
as, but not limited to, economic sabotage, smuggling, tax evasion,
dollar salting." 18 Consequently, while in cases which involve state
secrets it may be sufficient to determine from the circumstances
of the case that there is reasonable danger that compulsion of the
evidence will expose military matters without compelling
production, 19no similar excuse can be made for a privilege resting
on other considerations.
Nor has our attention been called to any law or regulation which
considers personnel records of the EIIB as classified information.
To the contrary, COA Circular No. 88-293, which petitioners
invoke to support their contention that there is adequate
safeguard against misuse of public funds, provides that the
"only item of expenditure which should be treated strictly
confidential" is that which refers to the "purchase of information
and payment of rewards." Thus, part V, No. 7 of the Circular
reads:
The only item of expenditure which should be treated as strictly
confidential because it falls under the category of classified
information is that relating to purchase of information and
payment of rewards. However, reasonable records should be
maintained and kept for inspection of the Chairman, Commission
on Audit or his duly authorized representative. All other
expenditures are to be considered unclassified supported by
invoices, receipts and other documents, and, therefore, subject to
reasonable inquiry by the Chairman or his duly authorized
representative. 20
It should be noted that the regulation requires that "reasonable
records" be kept justifying the confidential or privileged character
of the information relating to informers. There are no such
TROPANG POTCHI
reasonable records in this case to substitute for the records
claimed to be confidential.
The other statutes and regulations 21 invoked by petitioners in
support of their contention that the documents sought in the
subpoena duces tecum of the Ombudsman are classified merely
indicate the confidential nature of the EIIB's functions, but they
do not exempt the EIIB from the duty to account for its funds to
the proper authorities. Indeed by denying that there were savings
made from certain items in the agency and alleging that the DBM
had released to the EIIB only the allocations needed for the 947
personnel retained after its reorganization, petitioners in effect
invited inquiry into the veracity of their claim. If, as petitioners
claim, the subpoenaed records have been examined by the COA
and found by it to be regular in all respects, there is no reason
why they cannot be shown to another agency of the government
which by constitutional mandate is required to look into any
complaint concerning public office.
On the other hand, the Ombudsman is investigating a complaint
that several items in the EIIB were filled by fictitious persons and
that the allotments for these items in 1988 were used for illegal
purposes. The plantilla and other personnel records are relevant
to his investigation. He and his Deputies are designated by the
Constitution "protectors of the people" and as such they are
required by it "to act promptly on complaints in any form or
manneragainst public officials or employees of the Government,
or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporation." 22
His need for the documents thus outweighs the claim of
confidentiality of petitioners. What is more, while there might
have been compelling reasons for the claim of privilege in 1988
when it was asserted by petitioners, now, seven years later, these
reasons may have been attenuated, if they have not in fact
ceased. The agents whose identities could not then be revealed
may have ceased from the service of the EIIB, while the covert
missions to which they might have been deployed might either
have been accomplished or abandoned. On the other hand, the
Ombudsman's duty to investigate the complaint that there were
in 1988 unfilled positions in the EIIB for which continued funding
was received by its officials and put to illegal use, remains.
Above all, even if the subpoenaed documents are treated as
presumptively privileged, this decision would only justify ordering
their inspection in camera but not their nonproduction. However,
as concession to the nature of the functions of the EIIB and just to
be sure no information of a confidential character is disclosed, the
examination of records in this case should be made in strict
confidence by the Ombudsman himself. Reference may be made
to the documents in any decision or order which the Ombudsman
may render or issue but only to the extent that it will not reveal
203
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
covert activities of the agency. Above all, there must be a
scrupulous protection of the documents delivered.
With these safeguards outlined, it is believed that a satisfactory
resolution of the conflicting claims of the parties is achieved. It is
not amiss to state that even matters of national security have
been inquired into in appropriatein camera proceedings by the
courts. In Lansang v. Garcia 23 this Court held closed door
sessions, with only the immediate parties and their counsel
present, to determine claims that because of subversion there
was imminent danger to public safety warranting the suspension
of the writ of habeas corpus in 1971. Again in Marcos
v.Manglapus 24 the Court met behind closed doors to receive
military briefings on the threat posed to national security by the
return to the country of the former President and his family. In
the United States, a similar inquiry into the danger to national
security as a result of the publication of classified documents on
the Vietnam war was upheld by the U.S. Supreme Court. 25 We see
no reason why similar safeguards cannot be made to enable an
agency of the Government, like the Office of the Ombudsman, to
carry out its constitutional duty to protect public interests 26 while
insuring the confidentiality of classified documents.
C.
Petitioners contend that under Art. XI, § 13(4) the Ombudsman
can act only "in any appropriate case, and subject to such
limitations as may be provided by law" and that because the
complaint in this case is unsigned and unverified, the case is not
an appropriate one. This contention lacks merit. As already stated,
the Constitution expressly enjoins the Ombudsman to act on any
complaint filed "in any form or manner" concerning official acts or
omissions. Thus, Art. XI, § 12 provides:
The Ombudsman and his Deputies, as protectors of the people,
shall act promptly on complaints filed in any form or
manner against public officials or employees of the Government,
or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations and shall
inappropriate cases, notify the complainants of the action taken
and the result thereof. (Emphasis added)
Similarly, the Ombudsman Act of 1989 (Rep. Act No. 6770)
provides in § 26(2):
The Office of the Ombudsman shall receive complaints from any
source in whatever form concerning an official act or omission. It
shall act on the complaint immediately and if it finds the same
entirely baseless, it shall dismiss the same and inform the
complainant of such dismissal citing the reasons therefor. If it
finds a reasonable ground to investigate further, it shall first
furnish the respondent public officer or employee with a summary
of the complaint and require him to submit a written answer
within seventy-two hours from receipt thereof. If the answer is
found satisfactory, it shall dismiss the case. (Emphasis added)
Accordingly, in Diaz v. Sandiganbayan 27 the Court held that
testimony given at a fact-finding investigation and charges made
in a pleading in a case in court constituted a sufficient basis for the
Ombudsman to commence investigation, because a formal
complaint was really not necessary.
Rather than referring to the form of complaints, therefore, the
phrase "in an appropriate case" in Art. XI, § 12 means any case
concerning official act or omission which is alleged to be "illegal,
unjust, improper, or inefficient."28 The phrase "subject to such
limitations as may be provided by law" refers to such limitations
as may be provided by Congress or, in the absence thereof, to
such limitations as may be imposed by the courts. Such limitations
may well include a requirement that the investigation be
concluded in camera, with the public excluded, as exception to
the general nature of the proceedings in the Office of the
Ombudsman. 29 A reconciliation is thereby made between the
demands of national security and the requirement of
accountability enshrined in the Constitution. 30
What has been said above disposes of petitioners' contention that
the anonymous letter-complaint against them is nothing but a
vexatious prosecution. It only remains to say that the general
investigation in the Ombudsman' s office is precisely for the
purpose of protecting those against whom a complaint is filed
against hasty, malicious, and oppressive prosecution as much as
securing the State from useless and expensive trials. There may
also be benefit resulting from such limited in camera inspection in
terms of increased public confidence that the privilege is not
being abused and increased likelihood that no abuse is in fact
occurring.
II.
Nor is there violation of petitioner's right to the equal protection
of the laws. Petitioners complain that "in all forum and
tribunals . . . the aggrieved parties . . . can only hale respondents
via their verified complaints or sworn statements with their
identities fully disclosed," while in proceedings before the Office
of the Ombudsman anonymous letters suffice to start an
investigation. In the first place, there can be no objection to this
procedure because it is provided in the Constitution itself. In the
second place, it is apparent that in permitting the filing of
complaints "in any form and in a manner," the framers of the
Constitution took into account the well-known reticence of the
people which keep them from complaining against official
wrongdoings. As this Court had occasion to point out, the Office of
TROPANG POTCHI
the Ombudsman is different from the other investigatory and
prosecutory agencies of the government because those subject to
its jurisdiction are public officials who, through official pressure
and influence, can quash, delay or dismiss investigations held
against them. 31 On the other hand complainants are more often
than not poor and simple folk who cannot afford to hire
lawyers. 32
III.
Finally, it is contended that the issuance of the subpoena duces
tecum would violate petitioners' right against self-incrimination. It
is enough to state that the documents required to be produced in
this case are public records and those to whom the
subpoena duces tecum is directed are government officials in
whose possession or custody the documents are. Moreover, if, as
petitioners claim the disbursement by the EIIB of funds for
personal service has already been cleared by the COA, there is no
reason why they should object to the examination of the
documents by respondent Ombudsman.
WHEREFORE, the petition is DISMISSED, but it is directed that the
inspection of subpoenaed documents be made personally in
camera by the Ombudsman, and with all the safeguards outlined
in this decision.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero,
Bellosillo, Melo, Quiason, Puno and Vitug, JJ., concur.
Francisco, J., is on leave.
 Separate Opinions
 
KAPUNAN, J., dissenting:
The well-written ponencia of Mr. Justice Mendoza would
postulate that the Economic Intelligence and Investigation Bureau
(EIIB) documents relating to the Personal Services Funds for the
year 1988 and all documentary evidence, including salary
vouchers for the whole plantilla of the EIIB for 1988 be produced
before the Ombudsman over the objections of the EIIB
Commissioner on the ground that the documents contain highly
confidential matters, apart from the fact that the expenditures
had been cleared in audit by the Commission on Audit (COA). The
reasons relied upon in the ponencia are a) that the EIIB
documents at issue are not classified under COA (Commission on
204
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE
Audit) Circular No. 88-293, Part V No. 7 which limits such matters
exclusively to expenditures relating to the purchase of
information and payment of rewards; and b) the documents
relating to disbursement and expenditures of the EIIB for personal
funds had already been previously examined by the Commission
on Audit when such outlay had been passed upon in audit in the
said Office, such that there is no confidentiality privilege to
protect.
With due respect, I beg to disagree.
Disclosure of the documents as required by the Ombudsman
would necessarily defeat the legal mandate of the EIIB as the
intelligence arm of the executive branch of government relating
to matters affecting the economy of the nation. As such, EIIB's
functions are related to matters affecting national security. In the
performance of its function in relation with the gathering of
intelligence information executive privilege could as well be
invoked by the EIIB, especially in relation to its covert operations.
The determination, by the executive branch, through its
appropriate agencies, of a question as affecting the national
security is a policy decision for which this Court has neither the
competence nor the mandate to infringe upon. In the absence of
a clear showing a grave abuse of discretion on the part of the
Executive, acting through its (national security) agencies, I am of
the opinion that we cannot interfere with a determination,
properly made, on a question affecting economic security lest we
are prepared to ride roughshod over certain prerogatives of our
political branches. In an area obviously affecting the national
security, disclosure of confidential information on the promptings
of some dissatisfied employees would potentially disturb a
number of carefully laid-out operations dependent on secrecy and
I am not prepared to do this. The characterization of the
documents as classified information is not a shield for wrongdoing
but a barrier against the burden some requests for information
which necessarily interfere with the proper performance of their
duties. To give in, at every turn, to such requests would be greatly
disruptive of governmental functions. More so in this case, since
expenditures of the EIIB for personal funds had already been
previously examined and passed upon in audit by the Commission
on Audit. There has been no allegation of any irregularity in the
COA's earlier examination, and in the absence of substantiated
allegations, the previous determination ought to be accorded our
respect unless we want to encourage unnecessary and tiresome
forays and investigations into government activities which would
not only end up nowhere but which would also disrupt or derail
such activities.
The confidentiality privilege invoked by petitioners attaches in the
exercise of the functions of the EIIB, as presidential immunity is
bestowed by reason of the political functions of the Chief
Executive, as a separate and co-equal branch of government. By
the same parity of reasoning, the disclosure of the EIIB documents
required to be examined by the Ombudsman even in camera
proceedings will under the pretext of ascertaining the proper
disbursements of the EIIB funds will unnecessarily impair the
performance by the EIIB of its functions especially those affecting
national security.
The constitutional right allowing disclosure of governmental
documents, i.e., the right to information on matters of public
concern is not absolute. While access to official records may not
be prohibited, it may be regulated. 1Regulation includes
appropriate authority to determine what documents are of public
concern, the manner of access to information contained in such
documents and to withhold information under certain
circumstances, particularly, as in this case, those circumstances
affecting the national security. 2
Besides, as I emphasized earlier, the determination of the legality
of EIIB's disbursements of funds allocated to it are properly within
the competence of the Commission on Audit, which as
the ponencia of Justice Mendoza finds, has been cleared in audit.
The Commission on Audit had adopted, as in the past, measures
to protect "classified information" pertaining to examination of
expenditures of intelligence agencies. In the present case,
disclosure of information to any other agency would unnecessarily
expose the covert operations of EIIB, as a government agency
charged with national security functions.
I, therefore, vote to give due course to the petition.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23794             February 17, 1968
ORMOC SUGAR COMPANY, INC., plaintiff-appellant,  constitutional violations in the aforesaid taxing ordinance
vs.
THE TREASURER OF ORMOC CITY, THE MUNICIPAL BOARD OF
ORMOC CITY, HON. ESTEBAN C. CONEJOS as Mayor of Ormoc
City and ORMOC CITY, defendants-appellees.
Ponce Enrile, Siguion Reyna, Montecillo & Belo and Teehankee,
Carreon & Tañada for plaintiff-appellant.  to the United States of America and other foreign countries."
Ramon O. de Veyra for defendants-appellees.
BENGZON, J.P., J.:
TROPANG POTCHI
          On January 29, 1964, the Municipal Board of Ormoc City
passed 1 Ordinance No. 4, Series of 1964, imposing "on any and all
productions of centrifugal sugar milled at the Ormoc Sugar
Company, Inc., in Ormoc City a municipal tax equivalent to one
per centum (1%) per export sale to the United States of America
and other foreign countries." 2
          Payments for said tax were made, under protest, by Ormoc
Sugar Company, Inc. on March 20, 1964 for P7,087.50 and on
April 20, 1964 for P5,000, or a total of P12,087.50.
          On June 1, 1964, Ormoc Sugar Company, Inc. filed before
the Court of First Instance of Leyte, with service of a copy upon
the Solicitor General, a complaint 3 against the City of Ormoc as
well as its Treasurer, Municipal Board and Mayor, alleging that the
afore-stated ordinance is unconstitutional for being violative of
the equal protection clause (Sec. 1[1], Art. III, Constitution) and
the rule of uniformity of taxation (Sec. 22[1]), Art. VI,
Constitution), aside from being an export tax forbidden under
Section 2287 of the Revised Administrative Code. It further
alleged that the tax is neither a production nor a license tax which
Ormoc City under Section 15-kk of its charter and under Section 2
of Republic Act 2264, otherwise known as the Local Autonomy
Act, is authorized to impose; and that the tax amounts to a
customs duty, fee or charge in violation of paragraph 1 of Section
2 of Republic Act 2264 because the tax is on both the sale and
export of sugar.
          Answering, the defendants asserted that the tax ordinance
was within defendant city's power to enact under the Local
Autonomy Act and that the same did not violate the afore-cited
constitutional limitations. After pre-trial and submission of the
case on memoranda, the Court of First Instance, on August 6,
1964, rendered a decision that upheld the constitutionality of the
ordinance and declared the taxing power of defendant chartered
city broadened by the Local Autonomy Act to include all other
forms of taxes, licenses or fees not excluded in its charter.
          Appeal therefrom was directly taken to Us by plaintiff Ormoc
Sugar Company, Inc. Appellant alleges the same statutory and
mentioned earlier.
          Section 1 of the ordinance states: "There shall be paid to the
City Treasurer on any and all productions of centrifugal sugar
milled at the Ormoc Sugar Company, Incorporated, in Ormoc City,
a municipal tax equivalent to one per centum (1%) per export sale
Though referred to as a tax on the export of centrifugal sugar
produced at Ormoc Sugar Company, Inc. For production of sugar
alone is not taxable; the only time the tax applies is when the
sugar produced is exported.
205
CONSTI 2 FUNDAMENTAL POWERS OF THE STATE TROPANG POTCHI

          Appellant questions the authority of the defendant As it is now, even if later a similar company is set up, it cannot be
Municipal Board to levy such an export tax, in view of Section subject to the tax because the ordinance expressly points only to
2287 of the Revised Administrative Code which denies from Ormoc City Sugar Company, Inc. as the entity to be levied upon.
municipal councils the power to impose an export tax. Section
2287 in part states: "It shall not be in the power of the municipal
          Appellant, however, is not entitled to interest; on the refund
council to impose a tax in any form whatever, upon goods and
because the taxes were not arbitrarily collected (Collector of
merchandise carried into the municipality, or out of the same, and
Internal Revenue v. Binalbagan).  6 At the time of collection, the
any attempt to impose an import or export tax upon such goods in
ordinance provided a sufficient basis to preclude arbitrariness, the
the guise of an unreasonable charge for wharfage use of bridges
same being then presumed constitutional until declared
or otherwise, shall be void."
otherwise.

          Subsequently, however, Section 2 of Republic Act 2264

          WHEREFORE, the decision appealed from is hereby reversed,
effective June 19, 1959, gave chartered cities, municipalities and
the challenged ordinance is declared unconstitutional and the
municipal districts authority to levy for public purposes just and
defendants-appellees are hereby ordered to refund the
uniform taxes, licenses or fees. Anent the inconsistency between
P12,087.50 plaintiff-appellant paid under protest. No costs. So
Section 2287 of the Revised Administrative Code and Section 2 of
ordered.
Republic Act 2264, this Court, in Nin Bay Mining Co. v.
Municipality of Roxas  4 held the former to have been repealed by
the latter. And expressing Our awareness of the transcendental Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar,
effects that municipal export or import taxes or licenses will have Sanchez, Castro, Angeles and Fernando, JJ., concur.1äwphï1.ñët
on the national economy, due to Section 2 of Republic Act 2264,
We stated that there was no other alternative until Congress acts
to provide remedial measures to forestall any unfavorable results.

          The point remains to be determined, however, whether

constitutional limits on the power of taxation, specifically the
equal protection clause and rule of uniformity of taxation, were
infringed.

          The Constitution in the bill of rights provides: ". . . nor shall

any person be denied the equal protection of the laws." (Sec. 1
[1], Art. III) In Felwa vs. Salas, 5 We ruled that the equal protection
clause applies only to persons or things identically situated and
does not bar a reasonable classification of the subject of
legislation, and a classification is reasonable where (1) it is based
on substantial distinctions which make real differences; (2) these
are germane to the purpose of the law; (3) the classification
applies not only to present conditions but also to future
conditions which are substantially identical to those of the
present; (4) the classification applies only to those who belong to
the same class.

          A perusal of the requisites instantly shows that the

questioned ordinance does not meet them, for it taxes only
centrifugal sugar produced and exported by the Ormoc Sugar
Company, Inc. and none other. At the time of the taxing
ordinance's enactment, Ormoc Sugar Company, Inc., it is true, was
the only sugar central in the city of Ormoc. Still, the classification,
to be reasonable, should be in terms applicable to future
conditions as well. The taxing ordinance should not be singular
and exclusive as to exclude any subsequently established sugar
central, of the same class as plaintiff, for the coverage of the tax.

206