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SEPARATION OF POWERS

1A.M. No. 88-7-1861-RTC October 5, 1988

IN RE: DESIGNATION OF JUDGE RODOLFO U. MANZANO AS MEMBER OF THE ILOCOS NORTE

PROVINCIAL COMMITTEE ON JUSTICE.

On 4 July 1988, Judge Rodolfo U. Manzano, Executive Judge, RTC, Bangui, Ilocos Norte, Branch 19, sent this
Court a letter which reads:

Hon. Marcelo Fernan

Chief Justice of the Supreme Court
of the Philippines
Manila

Thru channels: Hon. Leo Medialdea

Court Administrator
Supreme Court of the Philippines

Sir:

By Executive Order RF6-04 issued on June 21, 1988 by the Honorable Provincial Governor of Ilocos
Norte, Hon. Rodolfo C. Farinas, I was designated as a member of the Ilocos Norte Provincial
Committee on Justice created pursuant to Presidential Executive Order No. 856 of 12 December
1986, as amended by Executive Order No. 326 of June 1, 1988. In consonance with Executive
Order RF6-04, the Honorable Provincial Governor of Ilocos Norte issued my appointment as a
member of the Committee. For your ready reference, I am enclosing herewith machine copies of
Executive Order RF6-04 and the appointment.

Before I may accept the appointment and enter in the discharge of the powers and duties of the
position as member of the Ilocos (Norte) Provincial Committee on Justice, may I have the honor to
request for the issuance by the Honorable Supreme Court of a Resolution, as follows:

(1) Authorizing me to accept the appointment and to as assume and discharge the
powers and duties attached to the said position;

(2) Considering my membership in the Committee as neither violative of the

Independence of the Judiciary nor a violation of Section 12, Article VIII, or of the
second paragraph of Section .7, Article IX (B), both of the Constitution, and will not in
any way amount to an abandonment of my present position as Executive Judge of
Branch XIX, Regional Trial Court, First Judicial Region, and as a member of the
Judiciary; and

(3) Consider my membership in the said Committee as part of the primary functions
of an Executive Judge.

May I please be favored soon by your action on this request.

Very respectfully yours,

(Sgd) RODOLFO U. MANZANO

Judge
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An examination of Executive Order No. 856, as amended, reveals that Provincial/City Committees on Justice are
created to insure the speedy disposition of cases of detainees, particularly those involving the poor and indigent
ones, thus alleviating jail congestion and improving local jail conditions. Among the functions of the Committee are—

3.3 Receive complaints against any apprehending officer, jail warden, final or judge who may be
found to have committed abuses in the discharge of his duties and refer the same to proper authority
for appropriate action;

3.5 Recommend revision of any law or regulation which is believed prejudicial to the proper
administration of criminal justice.

It is evident that such Provincial/City Committees on Justice perform administrative functions. Administrative
functions are those which involve the regulation and control over the conduct and affairs of individuals for; their own
welfare and the promulgation of rules and regulations to better carry out the policy of the legislature or such as are
devolved upon the administrative agency by the organic law of its existence (Nasipit Integrated Arrastre and
Stevedoring Services Inc., vs. Tapucar, SP-07599-R, 29 September 1978, Blacks Law Dictionary).

Furthermore, under Executive Order No. 326 amending Executive Order No. 856, it is provided that—

Section 6. Supervision.—The Provincial/City Committees on Justice shall be under the supervision

of the Secretary of justice Quarterly accomplishment reports shall be submitted to the Office of the
Secretary of Justice.

Under the Constitution, the members of the Supreme Court and other courts established by law shag not be
designated to any agency performing quasi- judicial or administrative functions (Section 12, Art. VIII, Constitution).

Considering that membership of Judge Manzano in the Ilocos Norte Provincial Committee on Justice, which
discharges a administrative functions, will be in violation of the Constitution, the Court is constrained to deny his
request.

Former Chief Justice Enrique M. Fernando in his concurring opinion in the case of Garcia vs. Macaraig (39 SCRA
106) ably sets forth:

2. While the doctrine of separation of powers is a relative theory not to be enforced with pedantic
rigor, the practical demands of government precluding its doctrinaire application, it cannot justify a
member of the judiciary being required to assume a position or perform a duty non-judicial in
character. That is implicit in the principle. Otherwise there is a plain departure from its command.
The essence of the trust reposed in him is to decide. Only a higher court, as was emphasized by
Justice Barredo, can pass on his actuation. He is not a subordinate of an executive or legislative
official, however eminent. It is indispensable that there be no exception to the rigidity of such a norm
if he is, as expected, to be confined to the task of adjudication. Fidelity to his sworn responsibility no
less than the maintenance of respect for the judiciary can be satisfied with nothing less.

This declaration does not mean that RTC Judges should adopt an attitude of monastic insensibility or unbecoming
indifference to Province/City Committee on Justice. As incumbent RTC Judges, they form part of the structure of
government. Their integrity and performance in the adjudication of cases contribute to the solidity of such structure.
As public officials, they are trustees of an orderly society. Even as non-members of Provincial/City Committees on
Justice, RTC judges should render assistance to said Committees to help promote the laudable purposes for which
they exist, but only when such assistance may be reasonably incidental to the fulfillment of their judicial duties.

ACCORDINGLY, the aforesaid request of Judge Rodolfo U. Manzano is DENIED.

SO ORDERED.
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SEPARATION OF POWERS

G.R. No. L-45081             July 15, 1936

JOSE A. ANGARA, petitioner,
vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C.
MAYOR, respondents.

This is an original action instituted in this court by the petitioner, Jose A. Angara, for the issuance of a writ of
prohibition to restrain and prohibit the Electoral Commission, one of the respondents, from taking further cognizance
of the protest filed by Pedro Ynsua, another respondent, against the election of said petitioner as member of the
National Assembly for the first assembly district of the Province of Tayabas.

The facts of this case as they appear in the petition and as admitted by the respondents are as follows:

(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the respondents, Pedro
Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for the position of member of the National
Assembly for the first district of the Province of Tayabas;

(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner as member-elect
of the National Assembly for the said district, for having received the most number of votes;

(3) That on November 15, 1935, the petitioner took his oath of office;

(4) That on December 3, 1935, the National Assembly in session assembled, passed the following
resolution:

[No. 8]

RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS CONTRA QUIENES

NO SE HA PRESENTADO PROTESTA.

Se resuelve: Que las actas de eleccion de los Diputados contra quienes no se hubiere presentado
debidamente una protesta antes de la adopcion de la presente resolucion sean, como por la
presente, son aprobadas y confirmadas.

Adoptada, 3 de diciembre, 1935.

(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the Electoral Commission a
"Motion of Protest" against the election of the herein petitioner, Jose A. Angara, being the only protest filed
after the passage of Resolutions No. 8 aforequoted, and praying, among other-things, that said respondent
be declared elected member of the National Assembly for the first district of Tayabas, or that the election of
said position be nullified;

(6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6 of which
provides:

6. La Comision no considerara ninguna protesta que no se haya presentado en o antes de este dia.

(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the respondents in the
aforesaid protest, filed before the Electoral Commission a "Motion to Dismiss the Protest", alleging (a) that
Resolution No. 8 of Dismiss the Protest", alleging (a) that Resolution No. 8 of the National Assembly was
adopted in the legitimate exercise of its constitutional prerogative to prescribe the period during which
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protests against the election of its members should be presented; (b) that the aforesaid resolution has for its
object, and is the accepted formula for, the limitation of said period; and (c) that the protest in question was
filed out of the prescribed period;

(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to the Motion of
Dismissal" alleging that there is no legal or constitutional provision barring the presentation of a protest
against the election of a member of the National Assembly after confirmation;

(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to the aforesaid
"Answer to the Motion of Dismissal";

(10) That the case being submitted for decision, the Electoral Commission promulgated a resolution on
January 23, 1936, denying herein petitioner's "Motion to Dismiss the Protest."

The application of the petitioner sets forth the following grounds for the issuance of the writ prayed for:

(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission solely as regards the
merits of contested elections to the National Assembly;

(b) That the Constitution excludes from said jurisdiction the power to regulate the proceedings of said
election contests, which power has been reserved to the Legislative Department of the Government or the
National Assembly;

(c) That like the Supreme Court and other courts created in pursuance of the Constitution, whose exclusive
jurisdiction relates solely to deciding the merits of controversies submitted to them for decision and to
matters involving their internal organization, the Electoral Commission can regulate its proceedings only if
the National Assembly has not availed of its primary power to so regulate such proceedings;

(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be respected and obeyed;

(e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution and paragraph 6 of
article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the United States) as well as under
section 1 and 3 (should be sections 1 and 2) of article VIII of the Constitution, this Supreme Court has
jurisdiction to pass upon the fundamental question herein raised because it involves an interpretation of the
Constitution of the Philippines.

On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the respondent Electoral
Commission interposing the following special defenses:

(a) That the Electoral Commission has been created by the Constitution as an instrumentality of the
Legislative Department invested with the jurisdiction to decide "all contests relating to the election, returns,
and qualifications of the members of the National Assembly"; that in adopting its resolution of December 9,
1935, fixing this date as the last day for the presentation of protests against the election of any member of
the National Assembly, it acted within its jurisdiction and in the legitimate exercise of the implied powers
granted it by the Constitution to adopt the rules and regulations essential to carry out the power and
functions conferred upon the same by the fundamental law; that in adopting its resolution of January 23,
1936, overruling the motion of the petitioner to dismiss the election protest in question, and declaring itself
with jurisdiction to take cognizance of said protest, it acted in the legitimate exercise of its quasi-judicial
functions a an instrumentality of the Legislative Department of the Commonwealth Government, and hence
said act is beyond the judicial cognizance or control of the Supreme Court;

(b) That the resolution of the National Assembly of December 3, 1935, confirming the election of the
members of the National Assembly against whom no protest had thus far been filed, could not and did not
deprive the electoral Commission of its jurisdiction to take cognizance of election protests filed within the
time that might be set by its own rules:
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(c) That the Electoral Commission is a body invested with quasi-judicial functions, created by the
Constitution as an instrumentality of the Legislative Department, and is not an "inferior tribunal, or
corporation, or board, or person" within the purview of section 226 and 516 of the Code of Civil Procedure,
against which prohibition would lie.

The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on March 2, 1936, setting
forth the following as his special defense:

(a) That at the time of the approval of the rules of the Electoral Commission on December 9, 1935, there
was no existing law fixing the period within which protests against the election of members of the National
Assembly should be filed; that in fixing December 9, 1935, as the last day for the filing of protests against
the election of members of the National Assembly, the Electoral Commission was exercising a power
impliedly conferred upon it by the Constitution, by reason of its quasi-judicial attributes;

(b) That said respondent presented his motion of protest before the Electoral Commission on December 9,
1935, the last day fixed by paragraph 6 of the rules of the said Electoral Commission;

(c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by said respondent
and over the parties thereto, and the resolution of the Electoral Commission of January 23, 1936, denying
petitioner's motion to dismiss said protest was an act within the jurisdiction of the said commission, and is
not reviewable by means of a writ of prohibition;

(d) That neither the law nor the Constitution requires confirmation by the National Assembly of the election
of its members, and that such confirmation does not operate to limit the period within which protests should
be filed as to deprive the Electoral Commission of jurisdiction over protest filed subsequent thereto;

(e) That the Electoral Commission is an independent entity created by the Constitution, endowed with quasi-
judicial functions, whose decision are final and unappealable;

( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal, corporation, board
or person, within the terms of sections 226 and 516 of the Code of Civil Procedure; and that neither under
the provisions of sections 1 and 2 of article II (should be article VIII) of the Constitution and paragraph 13 of
section 1 of the Ordinance appended thereto could it be subject in the exercise of its quasi-judicial functions
to a writ of prohibition from the Supreme Court;

(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the united
States) has no application to the case at bar.

The case was argued before us on March 13, 1936. Before it was submitted for decision, the petitioner prayed for
the issuance of a preliminary writ of injunction against the respondent Electoral Commission which petition was
denied "without passing upon the merits of the case" by resolution of this court of March 21, 1936.

There was no appearance for the other respondents.

The issues to be decided in the case at bar may be reduced to the following two principal propositions:

1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject matter of the
controversy upon the foregoing related facts, and in the affirmative,

2. Has the said Electoral Commission acted without or in excess of its jurisdiction in assuming to the
cognizance of the protest filed the election of the herein petitioner notwithstanding the previous confirmation
of such election by resolution of the National Assembly?

We could perhaps dispose of this case by passing directly upon the merits of the controversy. However, the
question of jurisdiction having been presented, we do not feel justified in evading the issue. Being a case primæ
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impressionis, it would hardly be consistent with our sense of duty to overlook the broader aspect of the question and
leave it undecided. Neither would we be doing justice to the industry and vehemence of counsel were we not to
pass upon the question of jurisdiction squarely presented to our consideration.

The separation of powers is a fundamental principle in our system of government. It obtains not through express
provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of
matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. For example, the Chief Executive under
our Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws.
This, however, is subject to the further check that a bill may become a law notwithstanding the refusal of the
President to approve it, by a vote of two-thirds or three-fourths, as the case may be, of the National Assembly. The
President has also the right to convene the Assembly in special session whenever he chooses. On the other hand,
the National Assembly operates as a check on the Executive in the sense that its consent through its Commission
on Appointments is necessary in the appointments of certain officers; and the concurrence of a majority of all its
members is essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the
Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the
National Assembly controls the judicial department to a certain extent. The Assembly also exercises the judicial
power of trying impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively
checks the other departments in the exercise of its power to determine the law, and hence to declare executive and
legislative acts void if violative of the Constitution.

But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government. The overlapping and interlacing of
functions and duties between the several departments, however, sometimes makes it hard to say just where the one
leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department
is the only constitutional organ which can be called upon to determine the proper allocation of powers between the
several departments and among the integral or constituent units thereof.

As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was
within the power of our people, acting through their delegates to so provide, that instrument which is the expression
of their sovereignty however limited, has established a republican government intended to operate and function as a
harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions
provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations
upon governmental powers and agencies. If these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government
along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitation
and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United
States where no express constitutional grant is found in their constitution, the possession of this moderating power
of the courts, not to speak of its historical origin and development there, has been set at rest by popular
acquiescence for a period of more than one and a half centuries. In our case, this moderating power is granted, if
not expressly, by clear implication from section 2 of article VIII of our constitution.

The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of
such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And
when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution
and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to
them. 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. Even then, this power of judicial review is limited to actual cases and controversies to
be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised
or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions
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and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption
of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the
Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the
wisdom and justice of the people as expressed through their representatives in the executive and legislative
departments of the governments of the government.

But much as we might postulate on the internal checks of power provided in our Constitution, it ought not the less to
be remembered that, in the language of James Madison, the system itself is not "the chief palladium of constitutional
liberty . . . the people who are authors of this blessing must also be its guardians . . . their eyes must be ever ready
to mark, their voice to pronounce . . . aggression on the authority of their constitution." In the Last and ultimate
analysis, then, must the success of our government in the unfolding years to come be tested in the crucible of
Filipino minds and hearts than in consultation rooms and court chambers.

In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935, confirmed the election of
the herein petitioner to the said body. On the other hand, the Electoral Commission has by resolution adopted on
December 9, 1935, fixed said date as the last day for the filing of protests against the election, returns and
qualifications of members of the National Assembly, notwithstanding the previous confirmation made by the National
Assembly as aforesaid. If, as contended by the petitioner, the resolution of the National Assembly has the effect of
cutting off the power of the Electoral Commission to entertain protests against the election, returns and qualifications
of members of the National Assembly, submitted after December 3, 1935, then the resolution of the Electoral
Commission of December 9, 1935, is mere surplusage and had no effect. But, if, as contended by the respondents,
the Electoral Commission has the sole power of regulating its proceedings to the exclusion of the National
Assembly, then the resolution of December 9, 1935, by which the Electoral Commission fixed said date as the last
day for filing protests against the election, returns and qualifications of members of the National Assembly, should
be upheld.

Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature between
the National Assembly on the one hand, and the Electoral Commission on the other. From the very nature of the
republican government established in our country in the light of American experience and of our own, upon the
judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining
constitutional boundaries. The Electoral Commission, as we shall have occasion to refer hereafter, is a constitutional
organ, created for a specific purpose, namely to determine all contests relating to the election, returns and
qualifications of the members of the National Assembly. Although the Electoral Commission may not be interfered
with, when and while acting within the limits of its authority, it does not follow that it is beyond the reach of the
constitutional mechanism adopted by the people and that it is not subject to constitutional restrictions. The Electoral
Commission is not a separate department of the government, and even if it were, conflicting claims of authority
under the fundamental law between department powers and agencies of the government are necessarily
determined by the judiciary in justifiable and appropriate cases. Discarding the English type and other European
types of constitutional government, the framers of our constitution adopted the American type where the written
constitution is interpreted and given effect by the judicial department. In some countries which have declined to
follow the American example, provisions have been inserted in their constitutions prohibiting the courts from
exercising the power to interpret the fundamental law. This is taken as a recognition of what otherwise would be the
rule that in the absence of direct prohibition courts are bound to assume what is logically their function. For instance,
the Constitution of Poland of 1921, expressly provides that courts shall have no power to examine the validity of
statutes (art. 81, chap. IV). The former Austrian Constitution contained a similar declaration. In countries whose
constitutions are silent in this respect, courts have assumed this power. This is true in Norway, Greece, Australia
and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to constitutional Charter of the
Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-123, Title IX, Constitutional of the Republic of
1931) especial constitutional courts are established to pass upon the validity of ordinary laws. In our case, the
nature of the present controversy shows the necessity of a final constitutional arbiter to determine the conflict of
authority between two agencies created by the Constitution. Were we to decline to take cognizance of the
controversy, who will determine the conflict? And if the conflict were left undecided and undetermined, would not a
void be thus created in our constitutional system which may be in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in our
constitutional system. Upon principle, reason and authority, we are clearly of the opinion that upon the admitted
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facts of the present case, this court has jurisdiction over the Electoral Commission and the subject mater of the
present controversy for the purpose of determining the character, scope and extent of the constitutional grant to the
Electoral Commission as "the sole judge of all contests relating to the election, returns and qualifications of the
members of the National Assembly."

Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second proposition and
determine whether the Electoral Commission has acted without or in excess of its jurisdiction in adopting its
resolution of December 9, 1935, and in assuming to take cognizance of the protest filed against the election of the
herein petitioner notwithstanding the previous confirmation thereof by the National Assembly on December 3, 1935.
As able counsel for the petitioner has pointed out, the issue hinges on the interpretation of section 4 of Article VI of
the Constitution which provides:

"SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme Court designated by
the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the
party having the largest number of votes, and three by the party having the second largest number of votes therein.
The senior Justice in the Commission shall be its Chairman. The Electoral Commission shall be the sole judge of all
contests relating to the election, returns and qualifications of the members of the National Assembly." It is
imperative, therefore, that we delve into the origin and history of this constitutional provision and inquire into the
intention of its framers and the people who adopted it so that we may properly appreciate its full meaning, import
and significance.

The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5) laying down the
rule that "the assembly shall be the judge of the elections, returns, and qualifications of its members", was taken
from clause 1 of section 5, Article I of the Constitution of the United States providing that "Each House shall be the
Judge of the Elections, Returns, and Qualifications of its own Members, . . . ." The Act of Congress of August 29,
1916 (sec. 18, par. 1) modified this provision by the insertion of the word "sole" as follows: "That the Senate and
House of Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of their
elective members . . ." apparently in order to emphasize the exclusive the Legislative over the particular case s
therein specified. This court has had occasion to characterize this grant of power to the Philippine Senate and
House of Representatives, respectively, as "full, clear and complete" (Veloso vs. Boards of Canvassers of Leyte and
Samar [1919], 39 Phil., 886, 888.)

The first step towards the creation of an independent tribunal for the purpose of deciding contested elections to the
legislature was taken by the sub-committee of five appointed by the Committee on Constitutional Guarantees of the
Constitutional Convention, which sub-committee submitted a report on August 30, 1934, recommending the creation
of a Tribunal of Constitutional Security empowered to hear legislature but also against the election of executive
officers for whose election the vote of the whole nation is required, as well as to initiate impeachment proceedings
against specified executive and judicial officer. For the purpose of hearing legislative protests, the tribunal was to be
composed of three justices designated by the Supreme Court and six members of the house of the legislature to
which the contest corresponds, three members to be designed by the majority party and three by the minority, to be
presided over by the Senior Justice unless the Chief Justice is also a member in which case the latter shall preside.
The foregoing proposal was submitted by the Committee on Constitutional Guarantees to the Convention on
September 15, 1934, with slight modifications consisting in the reduction of the legislative representation to four
members, that is, two senators to be designated one each from the two major parties in the Senate and two
representatives to be designated one each from the two major parties in the House of Representatives, and in
awarding representation to the executive department in the persons of two representatives to be designated by the
President.

Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to the Convention on
September 24, 1934 subsection 5, section 5, of the proposed Article on the Legislative Department, reads as
follows:

The elections, returns and qualifications of the members of either house and all cases contesting the
election of any of their members shall be judged by an Electoral Commission, constituted, as to each House,
by three members elected by the members of the party having the largest number of votes therein, three
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elected by the members of the party having the second largest number of votes, and as to its Chairman, one
Justice of the Supreme Court designated by the Chief Justice.

The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as proposed by the
Committee on Constitutional Guarantees which was probably inspired by the Spanish plan (art. 121, Constitution of
the Spanish Republic of 1931), was soon abandoned in favor of the proposition of the Committee on Legislative
Power to create a similar body with reduced powers and with specific and limited jurisdiction, to be designated as a
Electoral Commission. The Sponsorship Committee modified the proposal of the Committee on Legislative Power
with respect to the composition of the Electoral Commission and made further changes in phraseology to suit the
project of adopting a unicameral instead of a bicameral legislature. The draft as finally submitted to the Convention
on October 26, 1934, reads as follows:

(6) The elections, returns and qualifications of the Members of the National Assembly and all cases
contesting the election of any of its Members shall be judged by an Electoral Commission, composed of
three members elected by the party having the largest number of votes in the National Assembly, three
elected by the members of the party having the second largest number of votes, and three justices of the
Supreme Court designated by the Chief Justice, the Commission to be presided over by one of said justices.

During the discussion of the amendment introduced by Delegates Labrador, Abordo, and others, proposing to strike
out the whole subsection of the foregoing draft and inserting in lieu thereof the following: "The National Assembly
shall be the soled and exclusive judge of the elections, returns, and qualifications of the Members", the following
illuminating remarks were made on the floor of the Convention in its session of December 4, 1934, as to the scope
of the said draft:

xxx     xxx     xxx

Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the first four lines,
paragraph 6, page 11 of the draft, reading: "The elections, returns and qualifications of the Members of the
National Assembly and all cases contesting the election of any of its Members shall be judged by an
Electoral Commission, . . ." I should like to ask from the gentleman from Capiz whether the election and
qualification of the member whose elections is not contested shall also be judged by the Electoral
Commission.

Mr. ROXAS. If there is no question about the election of the members, there is nothing to be judged; that is
why the word "judge" is used to indicate a controversy. If there is no question about the election of a
member, there is nothing to be submitted to the Electoral Commission and there is nothing to be
determined.

Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall confirm also the
election of those whose election is not contested?

Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the House of
Representatives confirming the election of its members is just a matter of the rules of the assembly. It is not
constitutional. It is not necessary. After a man files his credentials that he has been elected, that is sufficient,
unless his election is contested.

Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for purposes of the
auditor, in the matter of election of a member to a legislative body, because he will not authorize his pay.

Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected? What happens
with regards to the councilors of a municipality? Does anybody confirm their election? The municipal council
does this: it makes a canvass and proclaims — in this case the municipal council proclaims who has been
elected, and it ends there, unless there is a contest. It is the same case; there is no need on the part of the
Electoral Commission unless there is a contest. The first clause refers to the case referred to by the
gentleman from Cavite where one person tries to be elected in place of another who was declared elected.
 Page 10 of 122

From example, in a case when the residence of the man who has been elected is in question, or in case the
citizenship of the man who has been elected is in question.

However, if the assembly desires to annul the power of the commission, it may do so by certain maneuvers
upon its first meeting when the returns are submitted to the assembly. The purpose is to give to the
Electoral Commission all the powers exercised by the assembly referring to the elections, returns and
qualifications of the members. When there is no contest, there is nothing to be judged.

Mr. VENTURA. Then it should be eliminated.

Mr. ROXAS. But that is a different matter, I think Mr. Delegate.

Mr. CINCO. Mr. President, I have a similar question as that propounded by the gentleman from Ilocos Norte
when I arose a while ago. However I want to ask more questions from the delegate from Capiz. This
paragraph 6 on page 11 of the draft cites cases contesting the election as separate from the first part of the
sections which refers to elections, returns and qualifications.

Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are already
included in the phrase "the elections, returns and qualifications." This phrase "and contested elections" was
inserted merely for the sake of clarity.

Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance, refuse to confirm
the elections of the members."

Mr. ROXAS. I do not think so, unless there is a protest.

Mr. LABRADOR. Mr. President, will the gentleman yield?

THE PRESIDENT. The gentleman may yield, if he so desires.

Mr. ROXAS. Willingly.

Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is granted to the
assembly, the assembly on its own motion does not have the right to contest the election and qualification of
its members?

Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it is, even if two-thirds
of the assembly believe that a member has not the qualifications provided by law, they cannot remove him
for that reason.

Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral Commission.

Mr. ROXAS. By the assembly for misconduct.

Mr. LABRADOR. I mean with respect to the qualifications of the members.

Mr. ROXAS. Yes, by the Electoral Commission.

Mr. LABRADOR. So that under this draft, no member of the assembly has the right to question the eligibility
of its members?

Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral Commission and
make the question before the Electoral Commission.
 Page 11 of 122

Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is contested or not
contested.

Mr. ROXAS. Yes, sir: that is the purpose.

Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has power and authority
to pass upon the qualifications of the members of the National Assembly even though that question has not
been raised.

Mr. ROXAS. I have just said that they have no power, because they can only judge.

In the same session, the first clause of the aforesaid draft reading "The election, returns and qualifications of the
members of the National Assembly and" was eliminated by the Sponsorship Committee in response to an
amendment introduced by Delegates Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others. In explaining the
difference between the original draft and the draft as amended, Delegate Roxas speaking for the Sponsorship
Committee said:

xxx     xxx     xxx

Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en obviar la objecion apuntada por varios
Delegados al efecto de que la primera clausula del draft que dice: "The elections, returns and qualifications
of the members of the National Assembly" parece que da a la Comision Electoral la facultad de determinar
tambien la eleccion de los miembros que no ha sido protestados y para obviar esa dificultad, creemos que
la enmienda tien razon en ese sentido, si enmendamos el draft, de tal modo que se lea como sigue: "All
cases contesting the election", de modo que los jueces de la Comision Electoral se limitaran solamente a
los casos en que haya habido protesta contra las actas." Before the amendment of Delegate Labrador was
voted upon the following interpellation also took place:

El Sr. CONEJERO. Antes de votarse la enmienda, quisiera

El Sr. PRESIDENTE. ¿Que dice el Comite?

El Sr. ROXAS. Con mucho gusto.

El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a la minoria y tres
a la Corte Suprema, ¿no cree Su Señoria que esto equivale practicamente a dejar el asunto a los miembros
del Tribunal Supremo?

El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en esa forma, tanto los
miembros de la mayoria como los de la minoria asi como los miembros de la Corte Suprema consideraran
la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es suficiente para dar el triunfo.

El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese, podriamos hacer que tanto los de la
mayoria como los de la minoria prescindieran del partidismo?

El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.

xxx     xxx     xxx

The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the power to decide
contests relating to the election, returns and qualifications of members of the National Assembly to the National
Assembly itself, was defeated by a vote of ninety-eight (98) against fifty-six (56).
 Page 12 of 122

In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing the
representation of the minority party and the Supreme Court in the Electoral Commission to two members each, so
as to accord more representation to the majority party. The Convention rejected this amendment by a vote of
seventy-six (76) against forty-six (46), thus maintaining the non-partisan character of the commission.

As approved on January 31, 1935, the draft was made to read as follows:

(6) All cases contesting the elections, returns and qualifications of the Members of the National Assembly
shall be judged by an Electoral Commission, composed of three members elected by the party having the
largest number of votes in the National Assembly, three elected by the members of the party having the
second largest number of votes, and three justices of the Supreme Court designated by the Chief Justice,
the Commission to be presided over by one of said justices.

The Style Committee to which the draft was submitted revised it as follows:

SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme Court
designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall
be nominated by the party having the largest number of votes, and three by the party having the second
largest number of votes therein. The senior Justice in the Commission shall be its chairman. The Electoral
Commission shall be the sole judge of the election, returns, and qualifications of the Members of the
National Assembly.

When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee, through President
Recto, to effectuate the original intention of the Convention, agreed to insert the phrase "All contests relating to"
between the phrase "judge of" and the words "the elections", which was accordingly accepted by the Convention.

The transfer of the power of determining the election, returns and qualifications of the members of the legislature
long lodged in the legislative body, to an independent, impartial and non-partisan tribunal, is by no means a mere
experiment in the science of government.

Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57, 58), gives a vivid
account of the "scandalously notorious" canvassing of votes by political parties in the disposition of contests by the
House of Commons in the following passages which are partly quoted by the petitioner in his printed memorandum
of March 14, 1936:

153. From the time when the commons established their right to be the exclusive judges of the elections,
returns, and qualifications of their members, until the year 1770, two modes of proceeding prevailed, in the
determination of controverted elections, and rights of membership. One of the standing committees
appointed at the commencement of each session, was denominated the committee of privileges and
elections, whose functions was to hear and investigate all questions of this description which might be
referred to them, and to report their proceedings, with their opinion thereupon, to the house, from time to
time. When an election petition was referred to this committee they heard the parties and their witnesses
and other evidence, and made a report of all the evidence, together with their opinion thereupon, in the form
of resolutions, which were considered and agreed or disagreed to by the house. The other mode of
proceeding was by a hearing at the bar of the house itself. When this court was adopted, the case was
heard and decided by the house, in substantially the same manner as by a committee. The committee of
privileges and elections although a select committee. The committee of privileges and elections although a
select committee was usually what is called an open one; that is to say, in order to constitute the committee,
a quorum of the members named was required to be present, but all the members of the house were at
liberty to attend the committee and vote if they pleased.

154. With the growth of political parties in parliament questions relating to the right of membership gradually
assumed a political character; so that for many years previous to the year 1770, controverted elections had
been tried and determined by the house of commons, as mere party questions, upon which the strength of
contending factions might be tested. Thus, for Example, in 1741, Sir Robert Walpole, after repeated attacks
 Page 13 of 122

upon his government, resigned his office in consequence of an adverse vote upon the Chippenham election.
Mr. Hatsell remarks, of the trial of election cases, as conducted under this system, that "Every principle of
decency and justice were notoriously and openly prostituted, from whence the younger part of the house
were insensibly, but too successfully, induced to adopt the same licentious conduct in more serious matters,
and in questions of higher importance to the public welfare." Mr. George Grenville, a distinguished member
of the house of commons, undertook to propose a remedy for the evil, and, on the 7th of March, 1770,
obtained the unanimous leave of the house to bring in a bill, "to regulate the trial of controverted elections, or
returns of members to serve in parliament." In his speech to explain his plan, on the motion for leave, Mr.
Grenville alluded to the existing practice in the following terms: "Instead of trusting to the merits of their
respective causes, the principal dependence of both parties is their private interest among us; and it is
scandalously notorious that we are as earnestly canvassed to attend in favor of the opposite sides, as if we
were wholly self-elective, and not bound to act by the principles of justice, but by the discretionary impulse of
our own inclinations; nay, it is well known, that in every contested election, many members of this house,
who are ultimately to judge in a kind of judicial capacity between the competitors, enlist themselves as
parties in the contention, and take upon themselves the partial management of the very business, upon
which they should determine with the strictest impartiality."

155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill which met with
the approbation of both houses, and received the royal assent on the 12th of April, 1770. This was the
celebrated law since known by the name of the Grenville Act; of which Mr. Hatsell declares, that it "was one
of the nobles works, for the honor of the house of commons, and the security of the constitution, that was
ever devised by any minister or statesman." It is probable, that the magnitude of the evil, or the apparent
success of the remedy, may have led many of the contemporaries of the measure to the information of a
judgement, which was not acquiesced in by some of the leading statesmen of the day, and has not been
entirely confirmed by subsequent experience. The bill was objected to by Lord North, Mr. De Grey,
afterwards chief justice of the common pleas, Mr. Ellis, Mr. Dyson, who had been clerk of the house, and Mr.
Charles James Fox, chiefly on the ground, that the introduction of the new system was an essential
alteration of the constitution of parliament, and a total abrogation of one of the most important rights and
jurisdictions of the house of commons.

As early as 1868, the House of Commons in England solved the problem of insuring the non-partisan settlement of
the controverted elections of its members by abdicating its prerogative to two judges of the King's Bench of the High
Court of Justice selected from a rota in accordance with rules of court made for the purpose. Having proved
successful, the practice has become imbedded in English jurisprudence (Parliamentary Elections Act, 1868 [31 & 32
Vict. c. 125] as amended by Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2;
Corrupt and Illegal Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act,
1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of Canada, election
contests which were originally heard by the Committee of the House of Commons, are since 1922 tried in the courts.
Likewise, in the Commonwealth of Australia, election contests which were originally determined by each house, are
since 1922 tried in the High Court. In Hungary, the organic law provides that all protests against the election of
members of the Upper House of the Diet are to be resolved by the Supreme Administrative Court (Law 22 of 1916,
chap. 2, art. 37, par. 6). The Constitution of Poland of March 17, 1921 (art. 19) and the Constitution of the Free City
of Danzig of May 13, 1922 (art. 10) vest the authority to decide contested elections to the Diet or National Assembly
in the Supreme Court. For the purpose of deciding legislative contests, the Constitution of the German Reich of July
1, 1919 (art. 31), the Constitution of the Czechoslovak Republic of February 29, 1920 (art. 19) and the Constitution
of the Grecian Republic of June 2, 1927 (art. 43), all provide for an Electoral Commission.

The creation of an Electoral Commission whose membership is recruited both from the legislature and the judiciary
is by no means unknown in the United States. In the presidential elections of 1876 there was a dispute as to the
number of electoral votes received by each of the two opposing candidates. As the Constitution made no adequate
provision for such a contingency, Congress passed a law on January 29, 1877 (United States Statutes at Large, vol.
19, chap. 37, pp. 227-229), creating a special Electoral Commission composed of five members elected by the
Senate, five members elected by the House of Representatives, and five justices of the Supreme Court, the fifth
justice to be selected by the four designated in the Act. The decision of the commission was to be binding unless
rejected by the two houses voting separately. Although there is not much of a moral lesson to be derived from the
experience of America in this regard, judging from the observations of Justice Field, who was a member of that body
 Page 14 of 122

on the part of the Supreme Court (Countryman, the Supreme Court of the United States and its Appellate Power
under the Constitution [Albany, 1913] — Relentless Partisanship of Electoral Commission, p. 25 et seq.), the
experiment has at least abiding historical interest.

The members of the Constitutional Convention who framed our fundamental law were in their majority men mature
in years and experience. To be sure, many of them were familiar with the history and political development of other
countries of the world. When , therefore, they deemed it wise to create an Electoral Commission as a constitutional
organ and invested it with the exclusive function of passing upon and determining the election, returns and
qualifications of the members of the National Assembly, they must have done so not only in the light of their own
experience but also having in view the experience of other enlightened peoples of the world. The creation of the
Electoral Commission was designed to remedy certain evils of which the framers of our Constitution were cognizant.
Notwithstanding the vigorous opposition of some members of the Convention to its creation, the plan, as
hereinabove stated, was approved by that body by a vote of 98 against 58. All that can be said now is that, upon the
approval of the constitutional the creation of the Electoral Commission is the expression of the wisdom and "ultimate
justice of the people". (Abraham Lincoln, First Inaugural Address, March 4, 1861.)

From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer in its totality all
the powers previously exercised by the legislature in matters pertaining to contested elections of its members, to an
independent and impartial tribunal. It was not so much the knowledge and appreciation of contemporary
constitutional precedents, however, as the long-felt need of determining legislative contests devoid of partisan
considerations which prompted the people, acting through their delegates to the Convention, to provide for this body
known as the Electoral Commission. With this end in view, a composite body in which both the majority and minority
parties are equally represented to off-set partisan influence in its deliberations was created, and further endowed
with judicial temper by including in its membership three justices of the Supreme Court.

The Electoral Commission is a constitutional creation, invested with the necessary authority in the performance and
execution of the limited and specific function assigned to it by the Constitution. Although it is not a power in our
tripartite scheme of government, it is, to all intents and purposes, when acting within the limits of its authority, an
independent organ. It is, to be sure, closer to the legislative department than to any other. The location of the
provision (section 4) creating the Electoral Commission under Article VI entitled "Legislative Department" of our
Constitution is very indicative. Its compositions is also significant in that it is constituted by a majority of members of
the legislature. But it is a body separate from and independent of the legislature.

The grant of power to the Electoral Commission to judge all contests relating to the election, returns and
qualifications of members of the National Assembly, is intended to be as complete and unimpaired as if it had
remained originally in the legislature. The express lodging of that power in the Electoral Commission is an implied
denial of the exercise of that power by the National Assembly. And this is as effective a restriction upon the
legislative power as an express prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1;
State vs. Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we concede the power claimed in behalf of the National
Assembly that said body may regulate the proceedings of the Electoral Commission and cut off the power of the
commission to lay down the period within which protests should be filed, the grant of power to the commission would
be ineffective. The Electoral Commission in such case would be invested with the power to determine contested
cases involving the election, returns and qualifications of the members of the National Assembly but subject at all
times to the regulative power of the National Assembly. Not only would the purpose of the framers of our
Constitution of totally transferring this authority from the legislative body be frustrated, but a dual authority would be
created with the resultant inevitable clash of powers from time to time. A sad spectacle would then be presented of
the Electoral Commission retaining the bare authority of taking cognizance of cases referred to, but in reality without
the necessary means to render that authority effective whenever and whenever the National Assembly has chosen
to act, a situation worse than that intended to be remedied by the framers of our Constitution. The power to regulate
on the part of the National Assembly in procedural matters will inevitably lead to the ultimate control by the
Assembly of the entire proceedings of the Electoral Commission, and, by indirection, to the entire abrogation of the
constitutional grant. It is obvious that this result should not be permitted.

We are not insensible to the impassioned argument or the learned counsel for the petitioner regarding the
importance and necessity of respecting the dignity and independence of the national Assembly as a coordinate
department of the government and of according validity to its acts, to avoid what he characterized would be
 Page 15 of 122

practically an unlimited power of the commission in the admission of protests against members of the National
Assembly. But as we have pointed out hereinabove, the creation of the Electoral Commission carried with it  ex
necesitate rei the power regulative in character to limit the time with which protests intrusted to its cognizance
should be filed. It is a settled rule of construction that where a general power is conferred or duty enjoined, every
particular power necessary for the exercise of the one or the performance of the other is also conferred (Cooley,
Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any further constitutional provision
relating to the procedure to be followed in filing protests before the Electoral Commission, therefore, the incidental
power to promulgate such rules necessary for the proper exercise of its exclusive power to judge all contests
relating to the election, returns and qualifications of members of the National Assembly, must be deemed by
necessary implication to have been lodged also in the Electoral Commission.

It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission may abuse its
regulative authority by admitting protests beyond any reasonable time, to the disturbance of the tranquillity and
peace of mind of the members of the National Assembly. But the possibility of abuse is not argument against the
concession of the power as there is no power that is not susceptible of abuse. In the second place, if any mistake
has been committed in the creation of an Electoral Commission and in investing it with exclusive jurisdiction in all
cases relating to the election, returns, and qualifications of members of the National Assembly, the remedy is
political, not judicial, and must be sought through the ordinary processes of democracy. All the possible abuses of
the government are not intended to be corrected by the judiciary. We believe, however, that the people in creating
the Electoral Commission reposed as much confidence in this body in the exclusive determination of the specified
cases assigned to it, as they have given to the Supreme Court in the proper cases entrusted to it for decision. All the
agencies of the government were designed by the Constitution to achieve specific purposes, and each constitutional
organ working within its own particular sphere of discretionary action must be deemed to be animated with the same
zeal and honesty in accomplishing the great ends for which they were created by the sovereign will. That the
actuations of these constitutional agencies might leave much to be desired in given instances, is inherent in the
perfection of human institutions. In the third place, from the fact that the Electoral Commission may not be interfered
with in the exercise of its legitimate power, it does not follow that its acts, however illegal or unconstitutional, may
not be challenge in appropriate cases over which the courts may exercise jurisdiction.

But independently of the legal and constitutional aspects of the present case, there are considerations of equitable
character that should not be overlooked in the appreciation of the intrinsic merits of the controversy. The
Commonwealth Government was inaugurated on November 15, 1935, on which date the Constitution, except as to
the provisions mentioned in section 6 of Article XV thereof, went into effect. The new National Assembly convened
on November 25th of that year, and the resolution confirming the election of the petitioner, Jose A. Angara was
approved by that body on December 3, 1935. The protest by the herein respondent Pedro Ynsua against the
election of the petitioner was filed on December 9 of the same year. The pleadings do not show when the Electoral
Commission was formally organized but it does appear that on December 9, 1935, the Electoral Commission met for
the first time and approved a resolution fixing said date as the last day for the filing of election protest. When,
therefore, the National Assembly passed its resolution of December 3, 1935, confirming the election of the petitioner
to the National Assembly, the Electoral Commission had not yet met; neither does it appear that said body had
actually been organized. As a mater of fact, according to certified copies of official records on file in the archives
division of the National Assembly attached to the record of this case upon the petition of the petitioner, the three
justices of the Supreme Court the six members of the National Assembly constituting the Electoral Commission
were respectively designated only on December 4 and 6, 1935. If Resolution No. 8 of the National Assembly
confirming non-protested elections of members of the National Assembly had the effect of limiting or tolling the time
for the presentation of protests, the result would be that the National Assembly — on the hypothesis that it still
retained the incidental power of regulation in such cases — had already barred the presentation of protests before
the Electoral Commission had had time to organize itself and deliberate on the mode and method to be followed in a
matter entrusted to its exclusive jurisdiction by the Constitution. This result was not and could not have been
contemplated, and should be avoided.

From another angle, Resolution No. 8 of the National Assembly confirming the election of members against whom
no protests had been filed at the time of its passage on December 3, 1935, can not be construed as a limitation
upon the time for the initiation of election contests. While there might have been good reason for the legislative
practice of confirmation of the election of members of the legislature at the time when the power to decide election
contests was still lodged in the legislature, confirmation alone by the legislature cannot be construed as depriving
 Page 16 of 122

the Electoral Commission of the authority incidental to its constitutional power to be "the sole judge of all contest
relating to the election, returns, and qualifications of the members of the National Assembly", to fix the time for the
filing of said election protests. Confirmation by the National Assembly of the returns of its members against whose
election no protests have been filed is, to all legal purposes, unnecessary. As contended by the Electoral
Commission in its resolution of January 23, 1936, overruling the motion of the herein petitioner to dismiss the protest
filed by the respondent Pedro Ynsua, confirmation of the election of any member is not required by the Constitution
before he can discharge his duties as such member. As a matter of fact, certification by the proper provincial board
of canvassers is sufficient to entitle a member-elect to a seat in the national Assembly and to render him eligible to
any office in said body (No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935).

Under the practice prevailing both in the English House of Commons and in the Congress of the United States,
confirmation is neither necessary in order to entitle a member-elect to take his seat. The return of the proper election
officers is sufficient, and the member-elect presenting such return begins to enjoy the privileges of a member from
the time that he takes his oath of office (Laws of England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A.,
Title 2, secs. 21, 25, 26). Confirmation is in order only in cases of contested elections where the decision is adverse
to the claims of the protestant. In England, the judges' decision or report in controverted elections is certified to the
Speaker of the House of Commons, and the House, upon being informed of such certificate or report by the
Speaker, is required to enter the same upon the Journals, and to give such directions for confirming or altering the
return, or for the issue of a writ for a new election, or for carrying into execution the determination as circumstances
may require (31 & 32 Vict., c. 125, sec. 13). In the United States, it is believed, the order or decision of the particular
house itself is generally regarded as sufficient, without any actual alternation or amendment of the return (Cushing,
Law and Practice of Legislative Assemblies, 9th ed., sec. 166).

Under the practice prevailing when the Jones Law was still in force, each house of the Philippine Legislature fixed
the time when protests against the election of any of its members should be filed. This was expressly authorized by
section 18 of the Jones Law making each house the sole judge of the election, return and qualifications of its
members, as well as by a law (sec. 478, Act No. 3387) empowering each house to respectively prescribe by
resolution the time and manner of filing contest in the election of member of said bodies. As a matter of formality,
after the time fixed by its rules for the filing of protests had already expired, each house passed a resolution
confirming or approving the returns of such members against whose election no protests had been filed within the
prescribed time. This was interpreted as cutting off the filing of further protests against the election of those
members not theretofore contested (Amistad vs. Claravall [Isabela], Second Philippine Legislature, Record — First
Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth Philippine Legislature; Fetalvero vs. Festin [Romblon],
Sixth Philippine Legislature, Record — First Period, pp. 637-640; Kintanar vs. Aldanese [Fourth District, Cebu], Sixth
Philippine Legislature, Record — First Period, pp. 1121, 1122; Aguilar vs. Corpus [Masbate], Eighth Philippine
Legislature, Record — First Period, vol. III, No. 56, pp. 892, 893). The Constitution has repealed section 18 of the
Jones Law. Act No. 3387, section 478, must be deemed to have been impliedly abrogated also, for the reason that
with the power to determine all contest relating to the election, returns and qualifications of members of the National
Assembly, is inseparably linked the authority to prescribe regulations for the exercise of that power. There was thus
no law nor constitutional provisions which authorized the National Assembly to fix, as it is alleged to have fixed on
December 3, 1935, the time for the filing of contests against the election of its members. And what the National
Assembly could not do directly, it could not do by indirection through the medium of confirmation.

Summarizing, we conclude:

(a) That the government established by the Constitution follows fundamentally the theory of separation of
power into the legislative, the executive and the judicial.

(b) That the system of checks and balances and the overlapping of functions and duties often makes difficult
the delimitation of the powers granted.

(c) That in cases of conflict between the several departments and among the agencies thereof, the judiciary,
with the Supreme Court as the final arbiter, is the only constitutional mechanism devised finally to resolve
the conflict and allocate constitutional boundaries.
 Page 17 of 122

(d) That judicial supremacy is but the power of judicial review in actual and appropriate cases and
controversies, and is the power and duty to see that no one branch or agency of the government transcends
the Constitution, which is the source of all authority.

(e) That the Electoral Commission is an independent constitutional creation with specific powers and
functions to execute and perform, closer for purposes of classification to the legislative than to any of the
other two departments of the governments.

(f ) That the Electoral Commission is the sole judge of all contests relating to the election, returns and
qualifications of members of the National Assembly.

(g) That under the organic law prevailing before the present Constitution went into effect, each house of the
legislature was respectively the sole judge of the elections, returns, and qualifications of their elective
members.

(h) That the present Constitution has transferred all the powers previously exercised by the legislature with
respect to contests relating to the elections, returns and qualifications of its members, to the Electoral
Commission.

(i) That such transfer of power from the legislature to the Electoral Commission was full, clear and complete,
and carried with it ex necesitate rei the implied power inter alia to prescribe the rules and regulations as to
the time and manner of filing protests.

( j) That the avowed purpose in creating the Electoral Commission was to have an independent
constitutional organ pass upon all contests relating to the election, returns and qualifications of members of
the National Assembly, devoid of partisan influence or consideration, which object would be frustrated if the
National Assembly were to retain the power to prescribe rules and regulations regarding the manner of
conducting said contests.

(k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones Law making each
house of the Philippine Legislature respectively the sole judge of the elections, returns and qualifications of
its elective members, but also section 478 of Act No. 3387 empowering each house to prescribe by
resolution the time and manner of filing contests against the election of its members, the time and manner of
notifying the adverse party, and bond or bonds, to be required, if any, and to fix the costs and expenses of
contest.

(l) That confirmation by the National Assembly of the election is contested or not, is not essential before
such member-elect may discharge the duties and enjoy the privileges of a member of the National
Assembly.

(m) That confirmation by the National Assembly of the election of any member against whom no protest had
been filed prior to said confirmation, does not and cannot deprive the Electoral Commission of its incidental
power to prescribe the time within which protests against the election of any member of the National
Assembly should be filed.

We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its constitutional
prerogative in assuming to take cognizance of the protest filed by the respondent Pedro Ynsua against the election
of the herein petitioner Jose A. Angara, and that the resolution of the National Assembly of December 3, 1935 can
not in any manner toll the time for filing protests against the elections, returns and qualifications of members of the
National Assembly, nor prevent the filing of a protest within such time as the rules of the Electoral Commission
might prescribe.

In view of the conclusion reached by us relative to the character of the Electoral Commission as a constitutional
creation and as to the scope and extent of its authority under the facts of the present controversy, we deem it
 Page 18 of 122

unnecessary to determine whether the Electoral Commission is an inferior tribunal, corporation, board or person
within the purview of sections 226 and 516 of the Code of Civil Procedure.

The petition for a writ of prohibition against the Electoral Commission is hereby denied, with costs against the
petitioner. So ordered.

SEPARATION OF POWERS

G.R. No. L-38025 August 20, 1979

DANTE O. CASIBANG, petitioner,
vs.HONORABLE NARCISO A. AQUINO, Judge of the Court of First Instance of Pangasinan, Branch XIV, and
REMEGIO P. YU, respondents.

Respondent Remigio P. Yu was proclaimed on November 9, 1971 as the elected Mayor of Rosales, Pangasinan in
the 1971 local elections, by a plurality of 501 votes over his only rival, herein petitioner, who seasonably filed on
November 24, 1971 a protest against the election of the former with the Court of First Instance of Pangasinan, on
the grounds of (1) anomalies and irregularities in the appreciation, counting and consideration of votes in specified
electoral precincts; (2) terrorism; (3) rampant vote buying; (4) open voting or balloting; and (5) excessive campaign
expenditures and other violations of the 1971 Election Code.

Respondent Yu filed on November 29, 1971 his answer and counter-protest which petitioner answered on
December 10, 1971. However, respondent Yu withdrew his counter-protest after waiving the opening and revision of
the ballot boxes specified therein.

Proceedings therein continued with respect to the election protest of petitioner before the Court of First Instance of
Pangasinan, Branch XIV, presided by respondent Judge, who initially took cognizance of the same as it is
unquestionably a justiciable controversy.

In the meantime or on September 21, 1972, the incumbent President of the Republic of the Philippines issued
Proclamation No. 1081, placing the entire country under Martial Law; and two months thereafter, more or less, or
specifically on November 29, 1972, the 1971 Constitutional Convention passed and approved a Constitution to
supplant the 1935 Constitution; and the same was thereafter overwhelmingly ratified by the sovereign people of the
Republic of the Philippines on January 17, 1973; and on March 31, 1973, this Court declared that "there is no further
judicial obstacle to the new Constitution being considered in force and effect" (Javellana vs. Executive Secretary, 50
SCRA 30 [1973]).
 Page 19 of 122

Thereafter or on October 10, 1973, at which time petitioner had already completed presenting his evidence and in
fact had rested his case, respondent Yu moved to dismiss the election protest of petitioner on the ground that the
trial court had lost jurisdiction over the same in view of the effectivity of the 1973 Constitution by reason of which —
principally) Section 9 of Article XVII [Transitory Provisions] and Section 2 of Article XI — a political question has
intervened in the case. Respondent Yu contended that "... the provisions in the 1935 Constitution relative to all local
governments have been superseded by the 1973 Constitution. Therefore, all local government should adhere to our
parliamentary form of government. This is clear in the New Constitution under its Article XI." He further submitted
that local elective officials (including mayors) have no more four-year term of office. They are only in office at the
pleasure of the appointing power embodied in the New Constitution, and under Section 9 of Article XVII.

Petitioner vigorously opposed the motion to dismiss, and, relying mainly on Sections 7 and 8 of Article XVII
(Transitory Provisions) of the New Constitution and G.O. No. 3, contended that the New Constitution did not divest
the Court of First Instance of its jurisdiction to hear and decide election protests pending before them at the time of
its ratification and effectivity; that the ratification of the New Constitution and its effectivity did not automatically
abolish the office and position of municipal mayor nor has it automatically cut short the tenure of the office, so as to
render the issue as to who is the lawfully elected candidate to said office or position moot and academic; that
election protests involve public interest such that the same must be heard until terminated and may not be
dismissed on mere speculation that the office involved may have been abolished, modified or reorganized; and that
the motion to dismiss was filed manifestly for delay.

Respondent Yu replied pointing out, among others, that petitioner failed to refute the issue of political question; and
reiterated his stand, expanding his arguments on the political question, thus:

It is an undeniable fact that this case has its source from the 1971 elections for municipal mayoralty.
Unsatisfied with the counting of votes held by the Board of Canvassers, the herein protestant filed
this present case. And before the termination of the same and pending trial, the Filipino people in the
exercise of their free will and sovereign capacity approved a NEW CONSTITUTION, thus a NEW
FORM OF GOVERNMENT-PARLIAMENTARY IN FORM was enforced. We find this provision under
Article XI of the New Constitution, which provides:

SEC. 2. The National Assembly shall enact a local government code which may not
thereafter be amended except by a majority vote of all its members, defining a more
responsive and accountable local government structure with an effective system of
recall, allocating among the different local government units their powers,
responsibilities, and resources, and providing for the qualifications, election and
removal, term, salaries, powers, functions, and duties of local officials, and all other
matters relating to the organization and operation of the local units. However, any
change in the existing form of local government shall not take effect until ratified by a
majority of the votes cast in a plebiscite called for the purpose.

It is respectfully submitted that the contention of the protestant to the effect that the New Constitution
"shows that the office of the Municipal Mayor has not been abolished ... ," is not ACCURATE.
Otherwise, the provisions of Section 9 of Article XVII, is meaningless.

All officials and employees in the existing Government of the Republic shall continue
in office until otherwise provided by law or decreed by the incumbent President of the
Philippines, ...

In the above-quoted provision is the protection of the officials and employees working in our
government, otherwise, by the force of the New Constitution they are all out of the government
offices. In fact, in the case above-cited (Javellana) we are all performing our duties in accordance
with the New Constitution.

Therefore, election cases of the 1935 Constitution being interwoven in the political complexion of our
new Constitution should be dismissed because only those incumbent official and employees existing
 Page 20 of 122

in the new government are protected by the transitional provisions of the New Fundamental Law of
the Land. The protestant, we respectfully submit, is not covered by the provisions of Section 9 Article
XVII of the Constitution. And in case he will win in this present case he has no right to hold the
position of mayor of the town of Rosales, Pangasinan, because he was not then an official of the
government at the time the New Constitution was approved by the Filipino People. His right if
proclaimed a winner is derived from the 1935 Constitution which is changed by the Filipino people.

On December 18, 1973, the trial court, presided by respondent Judge, sustained the political question theory of
respondent Yu and ordered the dismissal of the electoral protest. Thus:

There is no dispute that the Filipino people have accepted and submitted to a new Constitution to
replace the 1935 Constitution, and that we are now living under its aegis and protection. ...

xxx xxx xxxUnder Section 9, Article XVII, of the new Constitution, above-quoted, only those officials
and employees of the existing Government of the Republic of the Philippines like the protestee
herein, are given protection and are authorized to continue in office at the pleasure of the incumbent
President of the Philippines, while under Section 2 of Article XI of the new Constitution, also above-
quoted, the intention of completely revamp the whole local government structure, providing for
different qualifications, election and removal, term, salaries, powers, functions, and duties, is very
clear. These present questions of policy, the necessity and expediency of which are outside the
range of judicial review. With respect to the fate of incumbent oficials and employees in the existing
Government of the Republic of the Philippines, as well as to the qualifications, election and removal,
term of office, salaries, and powers of all local officials under the parliamentary form of government
— these have been entrusted or delegated by the sovereign people or has reserved it to be settled
by the incumbent Chief Executive or by the National Assembly with full discretionary authority
therefor. As if to supplement these delegated powers, the people have also decreed in a referendum
the suspension of all elections. Thus, in the United States, questions relating to what persons or
organizations constituted the lawful government of a state of the Union (Luther vs. Borden, 7 How. 1,
12, L. Ed 58), and those relating to the political status of a state (Highland Farms Dairy vs. Agnew,
57 S. et 549, 300 U.S. 608, 81 L.ed 835), have been held to be political and for the judiciary to
determine.

To the mind of the Court, therefore, the ratification and effectivity of the new Constitution has tainted
this case with a political complexion above and beyond the power of judicial review. As fittingly
commented by Mr. Justice Antonio in a separate opinion in the Javellana, et al. cases, 69 0. G. No.
36, September 3, 1973, p. 8008:

The essentially political nature of the question is at once manifest by understanding

that in the final analysis, what is assailed is not merely the validity of Proclamation
No. 1102 of the President, which is merely declaratory of the fact of the approval or
ratification, but the legitimacy of the government. It is addressed more to the frame-
work and political character of this government which now functions under the new
Charter. It seeks to nullify a Constitution that is already effective. In other words,
where a complete change in the fundamental law has been effected through political
action, the Court whose existence is affected by such a change is, in the words of
Mr. Meville Fuller Weston "precluded from passing upon the fact of change by a
logical difficulty which is not to be surmounted as the change relates to the existence
of a prior point in the Court's "chain of title" to its authority and "does not relate
merely to a question of the horizontal distribution of powers." It involves a matter
which 'the sovereign has entrusted to the so-called political departments or has
reserved to be settled by its own extra-governmental action." The present
Government functions under the new Constitution which has become effective
through political action. Judicial power presupposes an established government and
an effective constitution. If it decides at all as a court, it necessarily affirms the
existence and authority of the Government under which it is exercising judicial power.
 Page 21 of 122

The Court is not unaware of provisions of the new Constitution, particularly Sections 7 and 8, Article
XVII (Transitory Provisions) decreeing that all existing laws not inconsistent with the new
Constitution shall remain operative until amended, modified, or repealed by the National Assembly,
and that all courts existing at the time of the ratification of the said new Constitution shall continue
and exercise their jurisdiction until otherwise provided by law in accordance with the new
Constitution, and all cases pending in said courts shall be heard, tried and determined under the
laws then in force. Again, to the mind of the Court, these refer to matters raised in the enforcement
of existing laws or in the invocation of a court's jurisdiction which have not been "entrusted to the so-
called political department or has reserved to be settled by its own extra governmental action.

Hence, this petition.

We reverse.

The thrust of the aforesaid political question theory of respondent Yu is that the 1973 Constitution, through Section 9
of Article XVII thereof, protected only those incumbents, like him, at the time of its ratification and effectivity and are
the only ones authorized to continue in office and their term of office as extended now depends on the pleasure of,
as the same has been entrusted or committed to, the incumbent President of the Philippines or the Legislative
Department; and that Section 2 of Article XI thereof entrusted to the National Assembly the revamp of the entire
local government structure by the enactment of a local government code, thus presenting a question of policy, the
necessity and expediency of which are outside the range of judicial review. In short, for the respondent Judge to still
continue assuming jurisdiction over the pending election protest of petitioner is for him to take cognizance of a
question or policy "in regard to which full discretionary authority has been delegated to the Legislative or Executive
branch of the government."

I There is an imperative need to re-state pronouncements of this Court on the new Constitution which are decisive in
the resolution of the political question theory of respondent Yu.

WE ruled:

1. That Section 9 of Article XVII of the 1973 Constitution did not render moot and academic pending election protest
cases (Santos vs. Castañeda, 65 SCRA 114 [1975]; Euipilag vs. Araula, 60 SCRA 211 [1974]; Nunez vs. Averia, 57
SCRA 726 [1974]; Parades vs. Abad, L-36927, Sunga vs. Mosueda, L-37715, Valley vs. Caro, L-38331, 56 SCRA
522, [1974]).

2. That "the constitutional grant of privilege to continue in office, made by the new Constitution for the benefit of
persons who were incumbent officials or employees of the Government when the new Constitution took effect,
cannot be fairly construed as indiscriminately encompassing every person who at the time happened to be
performing the duties of an elective office, albeit under protest or contest" and that "subject to the constraints
specifically mentioned in Section 9, Article XVII of the Transitory Provisions, it neither was, nor could have been the
intention of the framers of our new fundamental law to disregard and shunt aside the statutory right of a condidate
for elective position who, within the time-frame prescribed in the Election Code of 1971, commenced proceedings
beamed mainly at the proper determination in a judicial forum of a proclaimed candidate-elect's right to the
contested office."' (Santos vs. Castañeda, supra); and We rationalized that "the Constitutional Convention could not
have intended, as in fact it .did not intend, to shielf or protect those who had been unduly elected. To hold that the
right of the herein private respondents to the respective offices which they are now holding, may no longer be
subject to question, would be tantamount to giving a stamp of approval to what could have been an election victory
characterized by fraud, threats, intimidation, vote buying, or other forms of irregularities prohibited by the Election
Code to preserve inviolate the sanctity of the ballot." (Parades, Sunga and Valley cases, supra).

3. That "the right of the private respondents (protestees) to continue in office indefinitely arose not only by virtue of
Section 9 of Article XVII of the New Constitution but principally from their having been proclaimed elected to their
respective positions as a result of the November 8, 1971 elections. Therefore, if in fact and in law, they were not
duly elected to their respective positions and consequently, have no right to hold the same, perform their functions,
 Page 22 of 122

enjoy their privileges and emoluments, then certainly, they should not be allowed to enjoy the indefinite term of
office given to them by said constitutional provision" (Parades, Sunga and Valley cases, supra).

4. That "until a subsequent law or presidential decree provides otherwise, the right of respondent (protestee) to
continue as mayor rests on the legality of his election which has been protested by herein petitioner. Should the
court decide adversely against him the electoral protest, respondent (protestee) would cease to be mayor even
before a law or presidential decree terminates his tenure of office pursuant to said Section 9 of Article XVII of the
1973 Constitution" (Euipilag, supra).

5. That "there is a difference between the 'term' of office and the 'right' to hold an office. A 'term' of office is the
period during winch an elected officer or appointee is entitled to hold office, perform its functions and enjoy its
privileges and emoluments. A 'right' to hold a public office is the just and legal claim to hold and enjoy the powers
and responsibilities of the office. In other words, the 'term' refers to the period, duration of length of time during
which the occupant of an office is .entitled to stay therein whether such period be definite or indefinite. Hence,
although Section 9, Article XVII of the New Constitution made the term of the petitioners indefinite, it did not
foreclose any challenge by the herein petitioners, in an election protest, of the 'right' of the private respondents to
continue holding their respective office. What has been directly affected by said constitutional provision is the 'term'
to the office, although the 'right' of the incumbent to an office which he is legally holding is co-extensive with the
'term' thereof," and that "it is erroneous to conclude that under Section 9, Article XVII of the New Constitution, the
term of office of the private respondents expired, and that they are now holding their respective offices under a new
term. We are of the opinion that they hold their respective offices still under the term to which they have been
elected, although the same is now indefinite" (Parades, Sunga and Valley cases, supra).

6. That the New Constitution recognized the continuing jurisdiction of courts of first instance to hear, try and decide
election protests: "Section 7 of Article XVII of the New Constitution provides that 'all existing laws not inconsistent
with this Constitution shall remain operative until amended, modified or repealed by the National Assembly. 'And
there has been no amendment, modification or repeal of Section 220 of the Election Code of 1971 which gave the
herein petitioners the right to file an election contest against those proclaimed elected," and "according to Section 8,
Article XVII of the New Constitution 'all courts existing at the time of the ratification of this Constitution shall continue
and exercise their jurisdiction until otherwise provided by law in accordance with this Constitution, and all cases
pending in said courts shall be heard, tried and determined under the laws then in force.' Consequently, the Courts
of First Instance presided over by the respondent-Judges should continue and exercise their jurisdiction to hear, try
and decide the election protests filed by herein petitioners" (Santos, Euipilag, Nunez, Parades, Sunga and Valley
cases, supra).

While under the New Constitution the Commission on Elections is now the sole judge of all contests relating to the
elections, returns, and qualifications of members of the National Assembly as well as elective provincial and city
officials (par. 2 of Sec. 2, Article XII-C of the 1973 Constitution), such power does not extend to electoral contests
concerning municipal elective positions.

7. That General Order No. 3, issued by the President of the Philippines merely reiterated his powers under Section 9
of Article XVII of the New Constitution. The President did not intend thereby to modify the aforesaid constitutional
provision (Euipilag, supra).

General Order No. 3, as amended by General Order No. 3-A, does not expressly include electoral contests of
municipal elective positions as among those removed from the jurisdiction of the courts; for said General Order,
after affirming the jurisdiction of the Judiciary to decide in accordance with the existing laws on criminal and civil
cases, simply removes from the jurisdiction of the Civil Court certain crimes specified therein as well as the validity,
legality or constitutionality of any decree, order or acts issued by the President or his duly designated representative
or by public servants pursuant to his decrees and orders issued under Proclamation No. 1081.

8. That General Order No. 3 may not be invoked by the courts to avoid exercise of their jurisdiction because to do co
"is nothing short of 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. It is unfortunate indeed that
respondent Judge is apparently unaware that it is a matter of highly significant historical fact that this Court has
always deemed General Order No. 3 including its amendment by General Order No. 3-A as practically inoperative
 Page 23 of 122

even in the light of Proclamation No. 1081 of September 21, 1972 and Proclamation No. 1104 of January 17, 1973,
placing the whole Philippines under martial law. While the members of the Court are not agreed on whether or not
particular instances of attack against the validity of certain Presidential decrees raise political questions which the
Judiciary would not interfere with, there is unanimity among Us in the view that it is for the Court rather than the
Executive to determine whether or not We may take cognizance of any given case involving the validity of acts of
the Executive Department purportedly under the authority of the martial law proclamations" (Lina vs. Purisima, 3
PHILAJUR 605, 610-611, 82 SCRA 344 [1978]).

II

1. In the light of the foregoing pronouncements, We hold that the electoral protest case herein involved has
remained a justiciable controversy. No political question has ever been interwoven into this case. Nor is there any
act of the incumbent President or the Legislative Department to be indirectly reviewed or interfered with if the
respondent Judge decides the election protest. 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" (Tañada vs. Cuenco, L-1052, Feb. 28, 1957). A broader definition was advanced
by U.S. Supreme Court Justice Brennan in Baker vs. Carr (369 U.S. 186 [1962]): "Prominent on the surface of any
case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate
branches of the government; or an unusual need for unquestioning adherence to a political decision already made;
or the potentiality of embarrassment from multifarious pronouncements by various departments on one question" (p.
217). And Chief Justice Enrique M. Fernando, then an Associate Justice, of this Court fixed the limits of the term,
thus: "The term has been made applicable to controversies clearly non-judicial and therefore beyond its jurisdiction
or to an issue involved in a case appropriately subject to its cognizance, as to which there has been a prior
legislative or executive determination to which deference must be paid (Cf. Vera vs. Avelino, 77 Phil. 192 [1946];
Lopez vs. Roxas, L-25716, July 28, 1966, 17 SCRA 756; Gonzales vs. Commission on Elections, L-28196, Nov. 9,
1967, 21 SCRA 774). It 'has likewise been employed loosely to characterize a suit where the party proceeded
against is the President or Congress, or any branch thereof (Cf. Planas vs. Gil, 67 Phil. 62 [1937]; Vera vs. Avelino,
77 Phil. 192 [1946]). If to be delimited with accuracy; 'political questions' should refer to such as would under the
Constitution be decided by the people in their sovereign capacity or in regard to which full discretionary authority is
vested either in the President or Congress. It is thus beyond the competence of the judiciary to pass upon. ..."
(Lansang vs. Garcia, 42 SCRA 448, 504-505 [1971]).

2. The only issue in the electoral protest case dismissed by respondent Judge on the ground of political question is
who between protestant — herein petitioner — and protestee — herein respondent Yu — was the duly elected
mayor of Rosales, Pangasinan, and legally entitled to enjoy the rights, privileges and emoluments appurtenant
thereto and to discharge the functions, duties and obligations of the position. If the protestee's election is upheld by
the respondent Judge, then he continues in office; otherwise, it is the protestant, herein petitioner. That is the only
consequence of a resolution of the issue therein involved — a purely justiciable question or controversy as it implies
a given right, legally demandable and enforceable, an act or ommission violative of said right, and a remedy,
granted or sanctioned by law, for said breach of right (Tan vs. Republic, 107 Phil. 632-633 [1960]). Before and after
the ratification and effectivity of the New Constitution, the nature of the aforesaid issue as well as the consequences
of its resolution by the Court, remains the same as above-stated.

3. Any judgment to be made on that issue will not in any way collide or interfere with the mandate of Section 9 of
Article XVII of the New Constitution, as it will merely resolve who as between protestant and protestee is the duly
elected mayor of Rosales, Pangasinan; hence, entitled to enjoy the extended term as mandated by said provision of
the New Constitution. As construed by this Court, the elective officials referred to in Section 9 of Article XVII are
limited to those duly elected as the right to said extended term was not personal to whosoever was incumbent at the
time of the ratification and effectivity of the New Constitution. Nor would such judgment preempt, collide or interfere
with the power or discretion entrusted by the New Constitution to the incumbent President or the Legislative
Department, with respect to the extended term of the duly elected incumbents; because whoever between
 Page 24 of 122

protestant and protestee is declared the duly elected mayor will be subject always to whatever action the President
or the Legislative Department will take pursuant thereto.

4. Neither does Section 2 of Article XI stigmatize the issue in that electoral protest case with a political color. For
simply, that section allocated unto the National Assembly the power to enact a local government code "which may
not thereafter be amended except by a majority of all its Members, defining a more responsive and accountable
local government allocating among the different local government units their powers, responsibilities, and resources,
and providing for their qualifications, election and removal, term, salaries, powers, functions and duties of local
officials, and all other matters relating to the organization and operation of the local units" but "... any change in the
existing form of local government shall not take effect until ratified by a majority of the votes cast in a plebiscite
called for the purpose." It is apparent at once that such power committed by the New Constitution to the National
Assembly will not be usurped or preempted by whatever ruling or judgment the respondent Judge will render in the
electoral protest case. Whoever will prevail in that contest will enjoy the indefinite term of the disputed office of
mayor of Rosales, Pangasinan in the existing set-up of local government in this country; subject always to whatever
change or modification the National Assembly will introduce when it will enact the local government code.

IIIThe construction made by respondent Judge of Sections 7 and 8 of Article XVII of the New Constitution "... that
these refer to matters raised in the enforcement of existing laws or in the invocation of a court's jurisdiction which
have not been 'entrusted to the so-called political department or reserved to be settled by its own extra-
governmental action,"' strained as it is, cannot be sustained in view of the result herein reached on the issue of
political question as well as Our previous pronouncements as above restated on the same Sections 7 and 8 of the
New Constitution.

WHEREFORE, RESPONDENT COURT'S ORDER OF DISMISSAL IS HEREBY SET ASIDE AND THE
RESPONDENT COURT IS DIRECTED TO IMMEDIATELY PROCEED WITH THE TRIAL AND DETERMINATION
OF THE ELECTION PROTEST BEFORE IT ON THE MERITS. THIS DECISION SHALL BE IMMEDIATELY
EXECUTORY UPON PROMULGATION HEREOF. NO COSTS.

SEPARATION OF POWERS

G.R. No. L-10520             February 28, 1957

LORENZO M. TAÑADA and DIOSDADO MACAPAGAL, petitioners,

vs.
MARIANO JESUS CUENCO, FRANCISCO A. DELGADO, ALFREDO CRUZ, CATALINA CAYETANO, MANUEL
SERAPIO, PLACIDO REYES, and FERNANDO HIPOLITO in his capacity as cashier and disbursing
officer, respondents.

Petitioner Lorenzo M. Tañada is a member of the Senate of the Philippines, and President of the Citizens Party,
whereas petitioner Diosdado Macapagal, a member of the House of Representatives of the Philippines, was one of
the official candidates of the Liberal Party for the Senate, at the General elections held in November, 1955, in which
Pacita Madrigal Warns, Lorenzo Sumulong, Quintin Paredes, Francisco Rodrigo, Pedro Sabido, Claro M. Recto,
Domocao Alonto and Decoroso Rosales, were proclaimed elected. Subsequently, the elections of this Senators-
elect-who eventually assumed their respective seats in the Senate-was contested by petitioner Macapagal, together
with Camilo Osias, Geronima Pecson, Macario Peralta, Enrique Magalona, Pio Pedrosa and William Chiongbian-
who had, also, run for the Senate, in said election-in Senate Electoral Case No. 4, now pending before the Senate
Electoral Tribunal. .

The Senate, in its session of February 22, 1956, upon nomination of Senator Cipriano Primicias, on behalf of the
Nacionalista Party, chose Senators Jose P. Laurel, Fernando Lopez and Cipriano Primicias, as members of the
Senate Electoral Tribunal. Upon nomination of petitioner Senator Tañada, on behalf of the Citizens Party, said
petitioner was next chosen by the Senate as member of said Tribunal. Then, upon nomination of Senator Primicias
on behalf of the Committee on Rules of the Senate, and over the objections of Senators Tañada and Sumulong, the
Senate choose respondents Senators Mariano J. Cuenco and Francisco A. Delgado as members of the same
Electoral Tribunal. Subsequently, the Chairman of the latter appointed: (1) Alfredo Cruz and Catalina Cayetano, as
 Page 25 of 122

technical assistant and private secretary, respectively, to Senator Cuenco, as supposed member of the Senate
Electoral Tribunal, upon his recommendation of said respondent; and (2) Manuel Serapio and Placido Reyes, as
technical assistant and private secretary, respectively to Senator Delgado, as supposed member of said Electoral
Tribunal, and upon his recommendation.

Soon, thereafter, Senator Lorenzo M. Tañada and Congressman Diosdado Macapagal instituted the case at bar
against Senators Cuenco and Delgado, and said Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido
Reyes, as well as Fernando Hipolito, in his capacity as Cashier and Disbursing Officer of the Senate Electoral
Tribunal. Petitioners allege that on February 22, 1956, as well as at present, the Senate consists of 23 Senators
who belong to the Nacionalista Party, and one (1) Senator-namely, petitioner, Lorenzo M. Tañada-belonging to the
Citizens Party; that the Committee on Rules for the Senate, in nominating Senators Cuenco and Delgado, and the
Senate, in choosing these respondents, as members of the Senate Electoral Tribunal, had "acted absolutely without
power or color of authority and in clear violation .. of Article VI, Section 11 of the Constitution"; that "in assuming
membership in the Senate Electoral Tribunal, by taking the corresponding oath of office therefor", said respondents
had "acted absolutely without color of appointment or authority and are unlawfully, and in violation of the
Constitution, usurping, intruding into and exercising the powers of members of the Senate Electoral Tribunal"; that,
consequently, the appointments of respondents, Cruz, Cayetano, Serapio and Reyes, as technical assistants and
private secretaries to Senators Cuenco and Delgado-who caused said appointments to be made-as members of the
Senate Electoral Tribunal, are unlawful and void; and that Senators Cuenco and Delgado "are threatening and are
about to take cognizance of Electoral Case No. 4 of the Senate Electoral Tribunal, as alleged members thereof, in
nullification of the rights of petitioner Lorenzo M. Tañada, both as a Senator belonging to the Citizens Party and as
representative of the Citizens Party in the Senate Electoral Tribunal, and in deprivation of the constitutional rights of
petitioner Diosdado Macapagal and his co-protestants to have their election protest tried and decided-by an
Electoral Tribunal composed of not more than three (3) senators chosen by the Senate upon nomination of the party
having the largest number of votes in the Senate and not more than the (3) Senators upon nomination of the Party
having the second largest number of votes therein, together, three (3) Justice of the Supreme Court to be
designated by the Chief Justice, instead of by an Electoral Tribunal packed with five members belonging to the
Nacionalista Party, which is the rival party of the Liberal Party, to which the Petitioner Diosdado Macapagal and his
co-protestants in Electoral Case No. 4 belong, the said five (5) Nacionalista Senators having been nominated and
chosen in the manner alleged.. hereinabove.".

Petitioners pray that:.

"1. Upon petitioners' filing of bond in such amount as may be determined by this Honorable Court, a writ of
preliminary injunction be immediately issued directed to respondents Mariano J. Cuenco, Francisco A. Delgado,
Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, restraining them from continuing to usurp,
intrude into and/ or hold or exercise the said public offices respectively being occupied by them in the Senate
Electoral Tribunal, and to respondent Fernando Hipolito restraining him from paying the salaries of respondent
Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, pending this action.

"2. After hearing, judgment be rendered ousting respondent Mariano J. Cuenco Francisco A. Delgado, Alfredo Cruz,
Catalina Cayetano, Manuel Serapio and Placido Reyes from the aforementioned public offices in the Senate
Electoral Tribunal and that they be altogether excluded therefrom and making the Preliminary injunction permanent,
with costs against the respondents.".

Respondents have admitted the main allegations of fact in the petition, except insofar as it questions the legality,
and validity of the election of respondents Senators Cuenco and Delgado, as members of the Senate Electoral
Tribunal, and of the appointment of respondent Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido
Reyes as technical assistants and private secretaries to said respondents Senators. Respondents, likewise, allege,
by way of special and affirmative defenses, that: (a) this Court is without power, authority of jurisdiction to direct or
control the action of the Senate in choosing the members of the Electoral Tribunal; and (b) that the petition states no
cause of action, because "petitioner Tañada has exhausted his right to nominate after he nominated himself and
refused to nominate two (2) more Senators", because said petitioner is in estoppel, and because the present action
is not the proper remedy. .
 Page 26 of 122

I. Respondents assail our jurisdiction to entertain the petition, upon the ground that the power to choose six (6)
Senators as members of the Senate Electoral Tribunal has been expressly conferred by the Constitution upon the
Senate, despite the fact that the draft submitted to the constitutional convention gave to the respective political
parties the right to elect their respective representatives in the Electoral Commission provided for in the original
Constitution of the Philippines, and that the only remedy available to petitioners herein "is not in the judicial forum",
but "to bring the matter to the bar of public opinion.".

We cannot agree with the conclusion drawn by respondents from the foregoing facts. To begin with, unlike the
cases of Alejandrino vs. Quezon (46 Phil., 83) and Vera vs. Avelino (77 Phil., 192)-relied upon by the respondents
this is not an action against the Senate, and it does not seek to compel the latter, either directly or indirectly, to allow
the petitioners to perform their duties as members of said House. Although the Constitution provides that the Senate
shall choose six (6) Senators to be members of the Senate Electoral Tribunal, the latter is part neither of Congress
nor of the Senate. (Angara vs. Electoral Commission, 63 Phil., 139, Suanes vs. Chief Accountant, 81 Phil., 818; 46
Off. Gaz., 462.).

Secondly, although the Senate has, under the Constitution, the exclusive power to choose the Senators who shall
form part of the Senate Electoral Tribunal, the fundamental law has prescribed the manner in which the authority
shall be exercised. As the author of a very enlightening study on judicial self-limitation has aptly put it:.

"The courts are called upon to say, on the one hand, by whom certain powers shall be exercised, and on the other
hand, to determine whether the powers possessed have been validly exercised. In performing the latter function,
they do not encroach upon the powers of a coordinate branch of the, government, since the determination of the
validity of an act is not the same, thing as the performance of the act. In the one case we are seeking to ascertain
upon whom devolves the duty of the particular service. In the other case we are merely seeking to determine
whether the Constitution has been violated by anything done or attented by either an executive official or the
legislative." (Judicial Self-Limitation by Finkelstein, pp. 221, 224, 244, Harvard Law Review, Vol. 39; emphasis
supplied,).

The case of Suanes vs. Chief Accountant (supra) cited by respondent refutes their own pretense. This Court
exercised its jurisdiction over said case and decided the same on the merits thereof, despite the fact that it involved
an inquiry into the powers of the Senate and its President over the Senate Electoral Tribunal and the personnel
thereof. .

Again, under the Constitution, "the legislative power" is vested exclusively in the Congress of the Philippines. Yet,
this does not detract from the power of the courts to pass upon the constitutionality of acts of Congress 1 And, since
judicial power includes the authority to inquire into the legality of statutes enacted by the two Houses of Congress,
and approved by the Executive, there can be no reason why the validity of an act of one of said Houses, like that of
any other branch of the Government, may not be determined in the proper actions. Thus, in the exercise of the so-
called "judicial supremacy", this Court declared that a resolution of the defunct National Assembly could not bar the
exercise of the powers of the former Electoral Commission under the original Constitution. 2 (Angara vs. Electoral
Commission, supra), and annulled certain acts of the Executive 3 as incompatible with the fundamental law.

In fact, whenever the conflicting claims of the parties to a litigation cannot properly be settled without inquiring into
the validity of an act of Congress or of either House thereof, the courts have, not only jurisdiction to pass upon said
issue, but, also, the duty to do so, which cannot be evaded without violating the fundamental law and paving the
way to its eventual destruction. 4.

Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1) and Cabili vs. Francisco (88 Phil., 654), likewise,
invoked by respondents, in point. In the Mabanag case, it was held that the courts could not review the finding of the
Senate to the effect that the members thereof who had been suspended by said House should not be considered in
determining whether the votes cast therein, in favor of a resolution proposing an amendment to the Constitution,
sufficed to satisfy the requirements of the latter, such question being a political one. The weight of this decision, as a
precedent, has been weakened, however, by our resolutions in Avelino vs. Cuenco (83 Phil., 17), in which this Court
proceeded to determine the number essential to constitute a quorum in the Senate. Besides, the case at bar does
not hinge on the number of votes needed for a particular act of said body. The issue before us is whether the
Senate-after acknowledging that the Citizens Party is the party, having the second largest number of votes in the
 Page 27 of 122

Senate, to which party the Constitution gives the right to nominate three (3) Senators for the Senate electoral
Tribunal-could validly choose therefor two (2) Nacionalista Senators, upon nomination by the floor leader of the
Nacionalista Party in the Senate, Senator Primicias claiming to act on behalf of the Committee on Rules for the
Senate.

The issue in the Cabili case was whether we could review a resolution of the Senate reorganizing its representation
in the Commission on Appointments. This was decided in the negative, upon the authority of Alejandrino vs. Quezon
(supra) and Vera vs. Avelino (supra), the main purpose of the petition being "to force upon the Senate the
reinstatement of Senator Magalona in the Commission on Appointments," one-half (1/2) of the members of which is
to be elected by each House on the basis of proportional representation of the political parties therein. Hence, the
issue depended mainly on the determination of the political alignment of the members of the Senate at the time of
said reorganization and of the necessity or advisability of effecting said reorganization, which is a political question.
We are not called upon, in the case at bar, to pass upon an identical or similar question, it being conceded,
impliedly, but clearly, that the Citizens Party is the party with the second largest number of votes in the Senate. The
issue, therefore, is whether a right vested by the Constitution in the Citizens Party may validly be exercised, either
by the Nacionalista Party, or by the Committee on Rules for the Senate, over the objection of said Citizens Party.

xxx     xxx     xxx

The only ground upon which respondents' objection to the jurisdiction of this Court and their theory to the effect that
the proper remedy for petitioners herein is, not the present action, but an appeal to public opinion, could possibly be
entertained is, therefore, whether the case at bar raises merely a political question, not one justiciable in nature.

In this connection, respondents assert in their answer that "the remedy of petitioners is not in the judicial forum, but,
to use petitioner, Tañada's own words, to bring the matter to the bar of public opinion' (p. 81, Discussion on the
Creation of the Senate Electoral Tribunal, February 21, 1956)." This allegation may give the impression that said
petitioner had declared, on the floor of the Senate, that his only relief against the acts complained of in the petition is
to take up the issue before the people- which is not a fact. During the discussions in the Senate, in the course of the
organization of the Senate Electoral Tribunal, on February 21, 1956, Senator Tañada was asked what remedies he
would suggest if he nominated two (2) Nacionialista Senators and the latter declined the, nomination. Senator
Tañada replied:.

"There are two remedies that occur to my mind right now, Mr. Senator; one is the remedy open to all of us that if we
feel aggrieved and there is no recourse in the court of justice, we can appeal to public opinion. Another remedy is an
action in the Supreme Court. Of course, as Senator Rodriguez, our President here, has said one day; "If you take
this matter to the Supreme Court, you will lose, because until now the Supreme Court has always ruled against any
action that would constitute interference in the business of anybody pertaining to the Senate. The theory of
separation of powers will be upheld by the Supreme Court." But that learned opinion of Senator Rodriguez, our
President, notwithstanding, I may take the case to the Supreme Court if my right herein is not respected. I may lose,
Mr. President, but who has not lost in the Supreme Court? I may lose because of the theory of the separation of
powers, but that does not mean, Mr. President, that what has been done here is pursuant to the provision of the
Constitution." (Congressional Record, Vol. III, p. 339; emphasis supplied.).

This statement did not refer to the nomination, by Senator Primicias, and the election, by the Senate, of Senators
Cuenco and Delgado as members of said Tribunal. Indeed, said nomination and election took place the day after
the aforementioned statement of Senator Tañada was made. At any rate, the latter announced that he might "take
the case to the Supreme Court if my right here is not respected.".

As already adverted to, the objection to our jurisdiction hinges on the question whether the issue before us is
political or not. In this connection, Willoughby lucidly states:.

"Elsewhere in this treatise the well-known and well-established principle is considered that it is not within the
province of the courts to pass judgment upon the policy of legislative or executive action. Where, therefore,
discretionary powers are granted by the Constitution or by statute, the manner in which those powers are exercised
 Page 28 of 122

is not subject to judicial review. The courts, therefore, concern themselves only with the question as to the existence
and extent of these discretionary powers.

"As distinguished from the judicial, the legislative and executive departments are spoken of as the political
departments of government because in very many cases their action is necessarily dictated by considerations of
public or political policy. These considerations of public or political policy of course will not permit the legislature to
violate constitutional provisions, or the executive to exercise authority not granted him by the Constitution or by,
statute, but, within these limits, they do permit the departments, separately or together, to recognize that a certain
set of facts exists or that a given status exists, and these determinations, together with the consequences that flow
therefrom, may not be traversed in the courts." (Willoughby on the Constitution of the United States, Vol. 3, p. 1326;
emphasis supplied.).

To the same effect is the language used in Corpus Juris Secundum, from which we quote:.

"It is well-settled doctrine that political questions are not within the province of the judiciary, except to the extent that
power to deal with such questions has been conferred upon the courts by express constitutional or statutory
provisions.

"It is not easy, however, to define the phrase `political question', nor to determine what matters, fall within its scope.
It is frequently used to designate all questions that lie outside the scope of the judicial 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." (16 C.J.S., 413; see, also
Geauga Lake Improvement Ass'n. vs. Lozier, 182 N. E. 491, 125 Ohio St. 565; Sevilla vs, Elizalde, 112 F. 2d 29, 72
App. D. C., 108; emphasis supplied.).

Thus, it has been repeatedly held that the question whether certain amendments to the Constitution are invalid for
non-compliance with the procedure therein prescribed, is not a political one and may be settled by the Courts. 5 .

In the case of In re McConaughy (119 N.W. 408), the nature of political question was considered carefully. The
Court said:.

"At the threshold of the case we are met with the assertion that the questions involved are political, and not judicial.
If this is correct, the court has no jurisdiction as the certificate of the state canvassing board would then be final,
regardless of the actual vote upon the amendment. The question thus raised is a fundamental one; but it has been
so often decided contrary to the view contended for by the Attorney General that it would seem to be finally settled.

x x x           x x x           x x x.

" .. What is generally meant, when it is, said that a question is political, and not judicial, is that it is a matter which, is
to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some
other department or particular officer of the government, with discretionary power to act. See State vs. Cunningham,
81 Wis. 497, 51 L. R. A. 561; In Re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L. R. A. 519; Green vs. Mills, 69 Fed.
852, 16, C. C. A. 516, 30 L. R. A. 90; Fletcher vs. Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A. 143, 42 Am. St. Rep.
220. Thus the Legislature may in its discretion determine whether it will pass a law or submit a proposed
constitutional amendment to the people. The courts have no judicial control over such matters, not merely because
they involve political question, but because they are matters which the people have by the Constitution delegated to
the Legislature. The Governor may exercise the powers delegated to him, free from judicial control, so long as he
observes the laws and acts within the limits of the power conferred. His discretionary acts cannot be controllable,
not primarily because they are of a political nature, but because the Constitution and laws have placed the particular
matter under his control. But every officer under a constitutional government must act according to law and subject
him to the restraining and controlling power of the people, acting through the courts, as well as through the
executive or the Legislature. One department is just as representative as the other, and the judiciary is the
department which is charged with the special duty of determining the limitations which the law places upon all official
action. The recognition of this principle, unknown except in Great Britain and America, is necessary, to the end that
 Page 29 of 122

the government may be one of laws and not men'-words which Webster said were the greatest contained in any
written constitutional document." (pp. 411, 417; emphasis supplied.).

In short, the term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a
question of policy. In other words, in the language of Corpus Juris Secundum (supra), 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 Legislature or executive branch of the Government." It is
concerned with issues dependent upon the wisdom, not legality, of a particular measure.

Such is not the nature of the question for determination in the present case. Here, we are called upon to decide
whether the election of Senators Cuenco and Delgado, by the Senate, as members of the Senate Electoral Tribunal,
upon nomination by Senator Primicias-a member and spokesman of the party having the largest number of votes in
the Senate-on behalf of its Committee on Rules, contravenes the constitutional mandate that said members of the
Senate Electoral Tribunal shall be chosen "upon nomination .. of the party having the second largest number of
votes" in the Senate, and hence, is null and void. This is not a political question. The Senate is not clothed with "full
discretionary authority" in the choice of members of the Senate Electoral Tribunal. The exercise of its power thereon
is subject to constitutional limitations which are claimed to be mandatory in nature. It is clearly within the legitimate
prove of the judicial department to pass upon the validity the proceedings in connection therewith.

".. whether an election of public officers has been in accordance with law is for the judiciary. Moreover, where the
legislative department has by statute prescribed election procedure in a given situation, the judiciary may determine
whether a particular election has been in conformity with such statute, and, particularly, whether such statute has
been applied in a way to deny or transgress on the constitutional or statutory rights .." (16 C.J.S., 439; emphasis
supplied.).

It is, therefore, our opinion that we have, not only jurisdiction, but, also, the duty, to consider and determine the
principal issue raised by the parties herein.

II. Is the election of Senators Cuenco and Delgado, by the Senate, as members of the Electoral Tribunal, valid and
lawful?.

Section 11 of Article VI of the Constitution, reads:.

"The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge
of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral
Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be
designated by the Chief Justice, and the remaining six shall be Members of the Senate or of the House of
Representatives, as the case may be, who shall be chosen by each House, three upon nomination of the party
having the largest number of votes and three of the party having the second largest number of votes therein. The
Senior Justice in each Electoral Tribunal shall be its Chairman." (Emphasis supplied.).

It appears that on February 22, 1956, as well as at present, the Senate of the Philippines consists of twenty three
(23) members of the Nacionalista Party and one (1) member of the Citizens Party, namely, Senator Tañada, who is,
also, the president of said party. In the session of the Senate held on February 21, 1956, Senator Sabido moved
that Senator Tañada, "the President of the Citizens Party, be given the privilege to nominate .. three (3) members"
of the Senate Electoral Tribunal (Congressional Record for the Senate, Vol. III, pp. 328-329), referring to those who,
according to the provision above-quoted, should be nominated by "the party having the second largest number of
votes" in the Senate. Senator Tañada objected formally to this motion upon the-ground: (a) that the right to
nominate said members of the Senate Electoral Tribunal belongs, not to the Nacionalista Party of which Senator
Sabido and the other Senators are members-but to the Citizens Party, as the one having the second largest number
of votes in the Senate, so that, being devoid of authority to nominate the aforementioned members of said Tribunal,
the Nacionalista Party cannot give it to the Citizens Party, which, already, has such authority, pursuant to the
Constitution; and (b) that Senator Sabido's motion would compel Senator Tañada to nominate three (3) Senators to
said Tribunal, although as representative of the minority party in the Senate he has "the right to nominate one, two
or three to the Electoral Tribunal," in his discretion. Senator Tañada further stated that he reserved the right to
 Page 30 of 122

determine how many he would nominate, after hearing the reasons of Senator Sabido in support of his motion. After
some discussion, in which Senators Primicias, Cea, Lim, Sumulong, Zulueta, and Rodrigo took part, the Senate
adjourned until the next morning, February 22, 1956 (Do., do, pp. 329, 330, 332-333, 336, 338, 339, 343).

Then, said issues were debated upon more extensively, with Senator Sumulong, not only seconding the opposition
of Senator Tañada, but, also, maintaining that "Senator Tañada should nominate only one" member of the Senate,
namely, himself, he being the only Senator who belongs to the minority party in said House (Do., do., pp. 360-364,
369). Thus, a new issue was raised - whether or not one who does not belong to said party may be nominated by its
spokesman, Senator Tañada - on which Senators Paredes, Pelaez, Rosales and Laurel, as well as the other
Senators already mentioned, expressed their views (Do., do., pp. 345, 349, 350, 354, 358, 364, 375). Although the
deliberations of the Senate consumed the whole morning and afternoon of February 22, 1956, a satisfactory
solution of the question before the Senate appeared to be remote. So, at 7:40 p.m., the meeting was suspended, on
motion of Senator Laurel, with a view to seeking a compromise formula (Do., do., pp. 377). When session was
resumed at 8:10 p.m., Senator Sabido withdrew his motion above referred to. Thereupon, Senator Primicias, on
behalf of the Nacionalista Party, nominated, and the Senate elected, Senators Laurel, Lopez and Primicias, as
members of the Senate Electoral Tribunal. Subsequently, Senator Tañada stated:.

"On behalf of the Citizens Party, the minority party in this Body, I nominate the only Citizens Party member in this
Body, and that is Senator Lorenzo M. Tañada.".

Without an objection, this nomination was approved by the House. Then, Senator Primicias stood up and said:.

"Now, Mr. President, in order to comply with the provision in the Constitution, the Committee on Rules of the
Senate-and I am now making this proposal not on behalf of the Nacionalista Party but on behalf of the Committee
on Rules of the Senate-I nominate two other members to complete the membership of the Tribunal: Senators
Delgado and Cuenco.".

What took place thereafter appears in the following quotations from the Congressional Record for the Senate.

"SENATOR TAÑADA. Mr. President.

"EL PRESIDENTE INTERINO. Caballero de Quezon.

"SENATOR TAÑADA. I would like to record my opposition to the nominations of the last two named gentlemen,
Senators Delgado and Cuenco, not because I don't believe that they do not deserve to be appointed to the tribunal
but because of my sincere and firm conviction that these additional nominations are not sanctioned by the
Constitution. The Constitution only permits the Nacionalista Party or the party having the largest number of votes to
nominate three.

"SENATOR SUMULONG. Mr. President.

"EL PRESIDENTE INTERINO. Caballero de Rizal.

"SENATOR SUMULONG. For the reasons that I have stated a few moments ago when I took the floor, I also wish to
record my objection to the last nominations, to the nomination of two additional NP's to the Electoral Tribunal.

"EL PRESIDENTE INTERINO. Esta dispuesto el Senado a votar? (Varios Senadores: Si.) Los que esten conformes
con la nominacion hecha por el Presidente del Comite de Reglamentos a favor de los Senadores Delgado y
Cuenco para ser miembros del Tribunal Electoral, digan, si. (Varios Senadores: Si.) Los que no lo esten digan, no
(Silencio.) Queda aprobada." (Congressional Record for the Senate, Vol. III, p. 377; emphasis supplied.).

Petitioners maintain that said nomination and election of Senators Cuenco and Delgado-who belong to the
Nacionalista Party-as members of the Senate Electoral Tribunal, are null and void and have been made without
power or color of authority, for, after the nomination by said party, and the election by the Senate, of Senators
Laurel, Lopez and Primicias, as members of said Tribunal, the other Senators, who shall be members thereof, must
 Page 31 of 122

necessarily be nominated by the party having the second largest number of votes in the Senate, and such party is,
admittedly, the Citizens Party, to which Senator Tañada belongs and which he represents.

Respondents allege, however, that the constitutional mandate to the effect that "each Electoral Tribunal shall be
compose of nine (9) members," six (6) of whom "shall be members of the Senate or of the House of
Representatives, as the case may be", is mandatory; that when-after the nomination of three (3) Senators by the
majority party, and their election by the Senate, as members of the Senate Electoral Tribunal-Senator Tañada
nominated himself only, on behalf of the minority party, he thereby "waived his right to no two more Senators;" that,
when Senator Primicias nominated Senators Cuenco and Delgado, and these respondents were chosen by the
Senate, as members of the Senate Electoral Tribunal, Said Senator Primicias and the Senate merely complied with
the aforementioned provision of the fundamental law, relative to the number of members of the Senate Electoral
Tribunal; and, that, accordingly, Senators Cuenco and Delgado are de jure members of said body, and the
appointment of their co-respondents, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes is valid
and lawful.

At the outset, it will be recalled that the proceedings the organization of the Senate Electoral Tribunal began with a
motion of Senator Sabido to the effect that "the distinguished gentleman from Quezon, the President of the Citizens
Party, be given the privilege to nominate the three Members" of said Tribunal. Senator Primicias inquired why the
movant had used the word "privilege". Senator Sabido explained that the present composition of the Senate had
created a condition or situation which was not anticipated by the framers of our Constitution; that although Senator
Tañada formed part of the Nacionalista Party before the end of 1955, he subsequently parted ways with" said party;
and that Senator Tañada "is the distinguished president of the Citizens Party," which "approximates the situation
desired by the framers of the Constitution" (Congressional Record for the Senate Vol. III, pp. 329-330). Then
Senator Lim intervened, stating:.

"At present Senator Tañada is considered as forming the only minority or the one that has the second largest
number of votes in the existing Senate, is not that right? And if this is so, he should be given this as a matter of right,
not as a matter of privilege. .. I don't believe that we should be allowed to grant this authority to Senator Tañada only
as a privilege but we must grant it as a matter of right." (Id., id., p. 32; emphasis supplied.).

Similarly, Senator Sumulong maintained that "Senator Tañada, as Citizens Party Senator, has the right and not a
mere privilege to nominate," adding that:.

".. the question is whether we have a party here having the second largest number of votes, and it is clear in my
mind that there is such a party, and that is the Citizens Party to which the gentleman from Quezon belongs. .. We
have to bear in mind, .. that when Senator Tañada was included in the Nacionalista Party ticket in 1953, it was by
virtue of a coalition or an alliance between the Citizens Party and the Nacionalista Party at that time, and I maintain
that when Senator Tañada as head of the Citizens Party entered into a coalition with the Nacionalista Party, he did
not thereby become a Nacionalista because that was a mere coalition, not a fusion. When the Citizens Party
entered into a mere coalition, that party did not lose its personality as a party separate and distinct from the,
Nacionalista Party. And we should also remember that the certificate of candidacy filed by Senator Tañada in the
1953 election was one to the effect that he belonged to the Citizens Party .." (Id., id., p. 360; emphasis supplied.).

The debate was closed by Senator Laurel, who remarked, referring to Senator Tañada:.

"..there is no doubt that he does not belong to the majority in the first place, and that, therefore, he belongs to the
minority. And whether we like it or not, that is the reality of the actual situation-that he is not a Nacionalista now, that
he is the head and the representative of the Citizens Party. I think that on equitable ground and from the point of
view of public opinion, his situation .. approximates or approaches what is within the spirit of that Constitution. .. and
from the point of view of the spirit of the Constitution it would be a good thing if we grant the opportunity to Senator
Tañada to help us in the organization of this Electoral Tribunal (Id., id., p. 376; emphasis supplied.).

The foregoing statements and the fact that, thereafter, Senator Sabido withdrew his motion to grant Senator Tañada
the "privilege" to nominate, and said petitioner actually nominated himself "on behalf of the Citizens Party, the
minority party in this Body"-not only without any, objection whatsoever, but, also, with the approval of the Senate-
 Page 32 of 122

leave no room for doubt that the Senate-leave no room for doubt that the Senate has regarded the Citizens Party,
represented by Senator Tañada, as the party having the second largest number of votes in said House.

Referring, now, to the contention of respondents herein, their main argument in support of the mandatory character
of the constitutional provision relative to the number of members of the Senate Electoral Tribunal is that the word
"shall", therein used, is imperative in nature and that this is borne out by an opinion of the Secretary of Justice dated
February 1, 1939, pertinent parts of which are quoted at the footnote. 6.

Regardless of the respect due its author, as a distinguished citizen and public official, said opinion has little, if any,
weight in the solution of the question before this Court, for the practical construction of a Constitution is of little, if
any, unless it has been uniform .." 6a Again, "as a general rule, it is only in cases of substantial doubt and ambiguity
that the doctrine of contemporaneous or practical construction has any application". As a consequence, "where the
meaning of a constitutional provision is clear, a contemporaneous or practical executive interpretation thereof is
entitled to no weight, and will not be allowed to distort or in any way change its natural meaning." The reason is that
"the application of the doctrine of contemporaneous construction is more restricted as applied to the interpretation of
constitutional provisions than when applied to statutory provisions", and that, "except as to matters committed by the
Constitution, itself to the discretion of some other department, contemporary or practical construction is not
necessarily binding upon the courts, even in a doubtful case." Hence, "if in the judgment of the court, such
construction is erroneous and its further application is not made imperative by any paramount considerations of
public policy, it may he rejected." (16 C. J. S., 71-72; emphasis supplied.) 6b.

The aforemention opinion of the Secretary of Justice is not backed up by a, "uniform" application of the view therein
adopted, so essential to give thereto the weight accorded by the rules on contemporaneous constructions.
Moreover, said opinion tends to change the natural meaning of section 11 of Article VI of the Constitution, which is
clear. What is more, there is not the slightest doubt in our mind that the purpose and spirit of said provisions do not
warrant said change and that the rejection of the latter is demanded by paramount considerations of public policy. .

The flaw in the position taken in said opinion and by respondent herein is that, while, it relies upon the compulsory
nature of the word "shall", as regards the number of members of the Electoral Tribunals, it ignores the fact that the
same term is used with respect to the method prescribed for their election, and that both form part of a single
sentence and must be considered, therefore, as integral portions of one and the same thought. Indeed, respondents
have not even tried to show and we cannot conceive-why "shall" must be deemed mandatory insofar as the number
of members of each Electoral Tribunal, and should be considered directory as regards the procedure for their
selection. More important still, the history of section 11 of Article VI of the Constitution and the records of the
Convention, refute respondents' pretense, and back up the theory of petitioners herein.

Commenting on the frame of mind of the delegates to the Constitutional Convention, when they faced the task of
providing for the adjudication of contests relating to the election, returns and qualifications of members of the
Legislative Department, Dr. Jose M. Aruego, a member of said Convention, says:.

"The experience of the Filipino people under the provisions of the organic laws which left to the lawmaking body the
determination of the elections, returns, and qualifications of its members was not altogether satisfactory. There were
many complaints against the lack of political justice in this determination; for in a great number of cases, party
interests controlled and dictated the decisions. The undue delay in the dispatch of election contests for legislative
seats, the irregularities that characterized the proceedings in some of them, and the very apparent injection of
partisanship in the determination of a great number of the cases were decried by a great number of the people as
well as by the organs of public opinion.

"The faith of the people in the uprightness of the lawmaking body in the performance of this function assigned to it in
the organic laws was by no means great. In fact so blatant was the lack of political justice in the decisions that there
was, gradually built up a camp of thought in the Philippines inclined to leave to the courts the determination of
election contests, following the practice in some countries, like England and Canada.

"Such were the conditions of things at the time of the meeting of the convention." (The Framing of the Philippine
Constitution by Aruego, Vol. 1, pp. 257-258; emphasis supplied.).
 Page 33 of 122

This view is shared by distinguished members of the Senate. Thus, in its session of February 22, 1956, Senator
Sumulong declared:.

".. when you leave it to either House to decide election protests involving its own members, that is virtually placing
the majority party in a position to dictate the decision in those election cases, because each House will be
composed of a majority and a minority, and when you make each House the judge of every election protest
involving any member of that House, you place the majority in a position to dominate and dictate the decision in the
case and result was, there were so many abuses, there were so main injustices: committed by the majority at the
expense and to the prejudice of the minority protestants. Statements have been made here that justice was done
even under the old system, like that case involving Senator Mabanag, when he almost became a victim of the
majority when he had an election case, and it was only through the intervention of President Quezon that he was
saved from becoming the victim of majority injustices.

"It is true that justice had sometimes prevailed under the old system, but the record will show that those cases were
few and they were the rare exceptions. The overwhelming majority of election protests decided under the old system
was that the majority being then in a position to dictate the, decision in the election protest, was tempted to commit
as it did commit many abuses and injustices." (Congressional Record for the Senate, Vol. 111, p. 361; emphasis
supplied.).

Senator Paredes, a veteran legislator and former Speaker of the House of Representatives, said:.

".. what was intended in the creation of the electoral tribunal was to create a sort of collegiate court composed of
nine members: Three of them belonging to the party having the largest number of votes, and three from the party
having the second largest number votes so that these members may represent the party, and the members of said
party who will sit before the electoral tribunal as protestees. For when it comes to a party, Mr. President, there
ground to believe that decisions will be made along party lines." (Congressional Record for the Senate, Vol. III, p.
351; emphasis supplied.).

Senator Laurel, who played an important role in the framing of our Constitution, expressed himself as follows:.

"Now, with reference to the protests or contests, relating to the election, the returns and the qualifications of the
members of the legislative bodies, I heard it said here correctly that there was a time when that was given to the
corresponding chamber of the legislative department. So the election, returns and qualifications of the members, of
the Congress or legislative body was entrusted to that body itself as the exclusive body to determine the election,
returns and qualifications of its members. There was some doubt also expressed as to whether that should continue
or not, and the greatest argument in favor of the retention of that provision was the fact that was, among other
things, the system obtaining in the United States under the Federal Constitution of the United States, and there was
no reason why that power or that right vested in the legislative body should not be retained. But it was thought that
would make the determination of this contest, of this election protest, purely political as has been observed in the
past." (Congressional Record for the Senate, Vol. III, p. 376; emphasis supplied.).

It is interesting to note that not one of the members of the Senate contested the accuracy of the views thus
expressed.

Referring particularly to the philosophy underlying the constitutional provision quoted above, Dr. Aruego states:.

"The defense of the Electoral Commission was based primarily upon the hope and belief that the abolition of Party
line because of the equal representation in this body of the majority and the minority parties of the National
Assembly and the intervention of some members of the Supreme Court who, under the proposed constitutional
provision, would also be members of the same, would insure greater political justice in the determination of election
contests for seats in the National Assembly than there would be if the power had been lodged in the lawmaking
body itself. Delegate Francisco summarized the arguments for the creation of the Electoral Commission in the
following words:.
 Page 34 of 122

"I understand that from the time that this question is placed in the hands of members not only of the majority party
but also of the minority party, there is already a condition, a factor which would make protests decided in a non-
partisan manner. We know from experience that many times in the many protests tried in the House or in the
Senate, it was impossible to prevent the factor of party from getting in. From the moment that it is required that not
only the majority but also the minority should intervene in these questions, we have already enough guarantee that
there would be no tyranny on the part of the majority.

`But there is another more detail which is the one which satisfies me most, and that is the intervention of three
justices. So that with this intervention of three justices if there would be any question as to the justice applied by the
majority or the minority, if there would be any fundamental disagreement, or if there would be nothing but questions
purely of party in which the members of the majority as well as those of the minority should wish to take lightly a
protest because the protestant belongs to one of said parties, we have in this case, as a check upon the two parties,
the actuations of the three justices. In the last analysis, what is really applied in the determination of electoral cases
brought before the tribunals of justice or before the House of Representatives or the Senate? Well, it is nothing
more than the law and the doctrine of the Supreme Court. If that is the case, there will be greater skill in the
application of the laws and in the application of doctrines to electoral matters having as we shall have three justices
who will act impartially in these electoral questions.

`I wish to call the attention of my distinguished colleagues to the fact that in electoral protests it is impossible to set
aside party interests. Hence, the best guarantee, I repeat, for the administration of justice to the parties, for the fact
that the laws will not be applied rightfully or incorrectly as well as for the fact that the doctrines of the Supreme Court
will be applied rightfully, the best guarantee which we shall have, I repeat, is the intervention of the three justices.
And with the formation of the Electoral Commission, I say again, the protestants as well as the protestees could
remain tranquil in the certainty that they will receive the justice that they really deserve. If we eliminate from this
precept the intervention of the party of the minority and that of the three justices, then we shall be placing protests
exclusively in the hands of the party in power. And I understand, gentlemen, that in practice that has not given good
results. Many have criticized, many have complained against, the tyranny of the majority in electoral cases .. I
repeat that the best guarantee the fact that these questions will be judged not only by three members of the majority
but also by three members of the minority, with the additional guarantee of the impartial judgment of three justices of
the Supreme Court." (The Framing of the Philippine Constitution by Aruego, Vol. I, pp. 261-263; emphasis
supplied.).

The foregoing was corroborated by Senator Laurel. Speaking for this Court, in Angara vs. Electoral Commission (63
Phil., 139), he asserted:.

"The members of the Constitutional Convention who framed our fundamental law were in their majority-men mature
in years and experience. To be sure, many of them were familiar with the history and political development of other
countries of the world. When, therefore they deemed it wise to create an Electoral Commission as a constitutional
organ and invested with the exclusive function of passing upon and determining the election, returns and
qualifications of the members of the National Assembly, they must have done so not only in the light of their own
experience but also having in view the experience of other enlightened peoples of the world. The creation of the
Electoral Commission was designed to remedy certain evils of which the framers of our Constitution were cognizant.
Notwithstanding the vigorous opposition of some members of the Convention to its creation, the plan, as
hereinabove stated, was approved by that body by a vote of 98 against 58. All that can be said now is that, upon the
approval of the Constitution, the creation of the Electoral Commission is the expression of the wisdom `ultimate
justice of the people'. (Abraham Lincoln, First Inaugural Address, March 4, 1861.).

"From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer in its totality all
the powers previously exercised by the legislature in matters pertaining to contested elections of its members, to an
independent and impartial tribunal. It was not so much the knowledge and appreciation of contemporary
constitutional precedents, however, as the long felt need of determining legislative contests devoid of partisan
considerations which prompted the people acting through their delegates to the Convention, to provide for this body
known as the Electoral Commission. With this end in view, a composite body in which both the majority and minority
parties are equally represented to off-set partisan influence in its deliberations was created, and further endowed
with judicial temper by including in its membership three justices of the Supreme Court," (Pp. 174-175.) 7.
 Page 35 of 122

As a matter of fact, during the deliberations of the convention, Delegates Conejero and Roxas said:.

"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir informacion del Subcomite de Siete.

"El Sr. PRESIDENTE. Que dice el Comite?" El Sr. ROXAS. Con mucho gusto. "El Sr. CONEJERO. Tal como esta el
draft., dando tres miembrosala mayoria, y otros t?-es a la minyoryia y atros a la Corte Suprerma, no cree su Senoria
que este equivale pricticamente a dejar el asunto a los miembros del Tribunal Supremo?.

"El Sr. ROXAS. Si y no. Creemos que si el tribunal a la Comision esta cotistuido en esa forma, tanto los miembros
de la mayoria como los de la minoria asi como los miembros de la Corte Saprema consideration la cuestion sobre la
base de sus meritos, sabiendo que el partidismo no es suficiente para dar el triunbo.

"El Sr. CONEJERO. Cree Su Senoria que en un caso como ese, podriamos hacer que tanto los de la mayoria como
los de la minoria prescindieran del partidisrno?.

"El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo." (Angara vs. Electoral Commission, supra,
pp. 168-169; emphasis supplied.).

It is clear from the foregoing that the main objective of the framers of our Constitution in providing for the
establishment, first, of an Electoral Commission, 8 and then 9 of one Electoral Tribunal for each House of Congress,
was to insure the exercise of judicial impartiality in the disposition of election contests affecting members of the
lawmaking body. To achieve this purpose, two devices were resorted to, namely: (a) the party having the largest
number of votes, and the party having the second largest number of votes, in the National Assembly or in each
House of Congress, were given the same number of representatives in the Electoral Commission or Tribunal, so
that they may realize that partisan considerations could not control the adjudication of said cases, and thus be
induced to act with greater impartiality; and (b) the Supreme Court was given in said body the same number of
representatives as each one of said political parties, so that the influence of the former may be decisive and endow
said Commission or Tribunal with judicial temper.

This is obvious from the very language of the constitutional provision under consideration. In fact, Senator Sabido-
who had moved to grant to Senator Tañada the privilege" to make the nominations on behalf of party having the
second largest number of votes in the Senate-agrees with it. As Senator Sumulong inquired:.

"..I suppose Your Honor will agree with me that the framers of the Constitution precisely thought of creating this
Electoral Tribunal so as to prevent the majority from ever having a preponderant majority in the Tribunal."
(Congressional Record for the Senate, Vol. III, p. 330; emphasis supplied.).

Senator Sabido replied:.

"That is so, .." (Id., p. 330.).

Upon further interpretation, Senator Sabido said:.

".. the purpose of the creation of the Electoral Tribunal and of its composition is to maintain a balance between the
two parties and make the members of the Supreme Court the controlling power so to speak of the Electoral Tribunal
or hold the balance of power. That is the ideal situation." (Congressional Record for the Senate, Vol. III, p. 349;
emphasis supplied.).

Senator Sumulong opined along the same line. His words were: .

"..The intention is that when the three from the majority and the three from the minority become members of the
Tribunal it is hoped that they will become aware of their judicial functions, not to protect the protestants or the
protegees. It is hoped that they will act as judges because to decide election cases is a judicial function. But the
framers of, the Constitution besides being learned were men of experience. They knew that even Senators like us
are not angels, that we are human beings, that if we should be chosen to go to the Electoral Tribunal no one can
 Page 36 of 122

say that we will entirely be free from partisan influence to favor our party, so that in, case that hope that the three
from the majority and the three from the minority who will act as Judges should result in disappointment, in case
they do not act as judges but they go there and vote along party liner, still there is the guarantee that they will offset
each other and the result will be that the deciding vote will reside in the hands of the three Justices who have no
partisan motives to favor either the protestees or the protestants. In other words, the whole idea is to prevent the
majority from controlling and dictating the decisions of the Tribunal and to make sure that the decisive vote will be
wielded by the Congressmen or Senators who are members the Tribunal but will be wielded by the Justices who, by
virtue of their judicial offices, will have no partisan motives to serve, either protestants, or protestees. That is my
understanding of the intention of the framers of the Constitution when they decided to create the Electoral Tribunal.

x x x           x x x           x x x.

"My idea is that the intention of the framers of the constitution in creating the Electoral Tribunal is to insure
impartially and independence in its decision, and that is sought to be done by never allowing the majority party to
control the Tribunal, and secondly by seeing to it that the decisive vote in the Tribunal will be left in the hands of
persons who have no partisan interest or motive to favor either protestant or protestee." (Congressional Record for
the Senate, Vol. III, pp. 362-363, 365-366; emphasis supplied.).

So important in the "balance of powers" between the two political parties in the Electoral Tribunals, that several
members of the Senate questioned the right of the party having the second largest number of votes in the Senate
and, hence, of Senator Tañada, as representative of the Citizens Party-to nominate for the Senate Electoral
Tribunal any Senator not belonging to said party. Senators Lim, Sabido, Cea and Paredes maintained that the spirit
of the Constitution would be violated if the nominees to the Electoral Tribunals did not belong to the parties
respectively making the nominations. 10.

It is not necessary, for the purpose of this decision, to determine whether the parties having the largest, and the
second largest, number of votes in each House may nominate, to the Electoral Tribunals, those members of
Congress who do not belong to the party nominating them. It is patent, however, that the most vital feature of the
Electoral Tribunals is the equal representation of said parties therein, and the resulting equilibrium to be maintained
by the Justices of the Supreme Court as members of said Tribunals. In the words of the members of the present
Senate, said feature reflects the "intent" "purpose", and "spirit of the Constitution", pursuant to which the Senate
Electoral Tribunal should be organized (Congressional Record for the Senate, pp. 330, 337, 348-9, 350, 351, 355,
358, 362-3, 364, 370, 376).

Now then, it is well settled that "the purpose of all rules or maxims as to the construction or interpretation of statutes
is to discover the true intention of the law" (82 C. J. S., 526) and that.

"As a general rule of statutory construction, the spirit or intention of a statute prevails over the letter thereof, and
whatever is within the spirit of statute is within the statute although it is not within the letter, while that which is within
the letter, but not within the spirit of a statute, is not within the statute; but, where the law is free and clear from
ambiguity, the letter of it is not to be disregarded on the pretext of pursuing its spirit." (82 C. J. S., 613.).

"There is no universal rule or absolute test by which directory provisions in a statute may in all circumstances be
distinguished from those which are mandatory. However, in the determination of this question, as of every other
question of statutory construction, the prime object is to ascertain the legislative intent. The legislative intent must be
obtained front all the surrounding circumstances, and the determination does not depend on the form of the statute.
Consideration must be given to the entire statute, its nature, its object, and the consequences which would result
from construing it one way or the other, and the statute must be construed in connection with other related statutes.
Words of permissive character may be given a mandatory significance in order to effect the legislative intent, and,
when the terms of a statute are such that they cannot be made effective to the extent of giving each and all of them
some reasonable operation, without construing the statute as mandatory, such construction should be given; .. On
the other hand, the language of a statute, however mandatory in form, may be deemed directory whenever
legislative purpose can best be carried out by such construction, and the legislative intent does not require a
mandatory construction; but the construction of mandatory words as directory should not be lightly adopted and
never where it would in fact make a new law instead of that passed by the legislature. .. Whether a statute is
mandatory or directory depends on whether the thing directed to be done is of the essence of the thing required, or
 Page 37 of 122

is a mere matter of form, and what is a matter of essence can often be determined only by judicial construction.
Accordingly, when a particular provision of a statute relates to some immaterial matter, as to which compliance with
the statute is a matter of convenience rather than substance, or where the directions of a statute are given merely
with a view to the proper, orderly, and prompt conduct of business, it is generally regarded as directory, unless
followed by words of absolute prohibition; and a statute is regarded as directory were no substantial rights depend
on it, no injury can result from ignoring it, and the purpose of the legislative can be accomplished in a manner other
than that prescribed, with substantially the same result. On the other hand, a provision relating to the essence of the
thing to be done, that is, to matters of substance, is mandatory, and when a fair interpretation of a statute, which
directs acts or proceedings to be done in a certain way shows that the legislature intended a compliance with such
provision to be essential to the validity of the act or proceeding, or when same antecedent and pre-requisite
conditions must exist prior to the exercise of power, or must be performed before certain other powers can be
exercise, the statute must be regarded as mandatory. (Id., pp. 869-874.) (See also, Words and Phrases, Vol. 26, pp.
463-467; emphasis supplied.).

What has been said above, relative to the conditions antecedent to, and concomitant with, the adoption of section
11 of Article VI of the Constitution, reveals clearly that its framers intended to prevent the majority party from
controlling the Electoral Tribunals, and that the structure thereof is founded upon the equilibrium between the
majority and the minority parties therein, with the Justices of the Supreme Court, who are members of said
Tribunals, holding the resulting balance of power. The procedure prescribed in said provision for the selection of
members of the Electoral Tribunals is vital to the role they are called upon to play. it constitutes the essence of said
Tribunals. Hence, compliance with said procedure is mandatory, and acts performed in violation thereof are null and
void. 11.

It is true that the application of the foregoing criterion would limit the membership of the Senate Electoral Tribunal, in
the case at bar, to seven (7), instead of nine (9), members; but, it is conceded that the present composition of the
Senate was not foreseen by the framers of our Constitution (Congressional Record for the Senate, Vol. III, pp. 329,
342, 349, 354, 359, 375). Furthermore, the spirit of the law prevails over its letter, and the solution herein adopted
maintains the spirit of the Constitution, for partisan considerations can not be decisive in a tribunal consisting of
three (3) Justices of the Supreme Court, three (3) members nominated by the majority party and either one (1) or
two (2) members nominated by the party having the second largest number of votes in the House concerned.

Upon the other hand, what would be the result of respondents' contention if upheld? Owing to the fact that the
Citizens Party 12 has only one member in the Upper House, Senator Tañada felt he should nominate, for the
Senate Electoral Tribunal, only said member of the Citizens Party. The same is, thus, numerically handicapped, vis-
a-vis the majority party, in said Tribunal. Obviously, Senator Tañada did not nominate other two Senators, because,
otherwise, he would worsen the already disadvantageous position, therein, of the Citizens Party. Indeed, by the
aforementioned nomination and election of Senators Cuenco and Delgado, if the same were sanctioned, the
Nacionalista Party would have five (5) members in the Senate Electoral Tribunal, as against one (1) member of the
Citizens Party and three members of the Supreme Court. With the absolute majority thereby attained by the majority
party in said Tribunal, the philosophy underlying the same would be entirely upset. The equilibrium between the
political parties therein would be destroyed. What is worst, the decisive moderating role of the Justices of the
Supreme Court would be wiped out, and, in lieu thereof, the door would be thrown wide open for the predominance
of political considerations in the determination of election protests pending before said Tribunal, which is precisely
what the fathers of our Constitution earnestly strove to forestall. 13.

This does not imply that the honesty, integrity or impartiality of Senators Cuenco and Delgado are being questioned.
As a matter of fact, when Senator Tañada objected to their nomination, he explicitly made of record that his
opposition was based, not upon their character, but upon the principle involved. When the election of members of
Congress to the Electoral Tribunal is made dependent upon the nomination of the political parties above referred to,
the Constitution thereby indicates its reliance upon the method of selection thus established, regardless of the
individual qualities of those chosen therefor. Considering the wealth of experience of the delegatesto the
Convention, as lawyers of great note, as veteran politicians and as leaders in other fields of endeavor, they could
not, and did not, ignore the fact that the Constitution must limit itself to giving general patterns or norms of action. In
connection, particularly, with the composition of the Electoral Tribunals, they believed that, even the most well
meaning individuals often find it difficult to shake off the bias and prejudice created by political antagonisms and to
resist the demands of political exigencies, the pressure of which is bound to increase in proportion to the degree of
 Page 38 of 122

predominance of the party from which it comes. As above stated, this was confirmed by distinguished members of
the present Senate. (See pp. 25-28, 33, 34, supra.).

In connection with the argument of the former Secretary of Justice to the effect that when "there is no minority party
represented in the Assembly, the necessity for such a check by the minority disappears", the following observations
of the petitioners herein are worthy of notice:.

" Under the interpretation espoused by the respondents, the very frauds or terrorism committed by a party would
establish the legal basis for the final destruction of minority parties in the Congress at least. Let us suppose, for
example, that in the Senate, the 15 or 16 senators with unexpired terms belong to the party A. In the senatorial
elections to fill the remaining 8 seats, all the 8 candidates of party A are proclaimed elected through alleged fraud
and/or terrorism. (The ouster of not less than 3 senators-elect in the elections held since liberation attests to the
reality of election frauds and terrorism in our country.) There being no senator or only one senator belonging to the
minority, who would sit in judgment on the election candidates of the minority parties? According to the contention of
the respondents, it would be a Senate Electoral Tribunal made up of three Supreme Court Justices and 5 or 6
members of the same party A accused of fraud and terrorism. Most respectfully, we pray this Honorable Court to
reject an interpretation that would make of a democratic constitution the very instrument by which a corrupt and
ruthless party could entrench itself in power the legislature and thus destroy democracy in the Philippines.

x x x           x x x           x x x.

".. When there are no electoral protests filed by the Minority party, or when the only electoral protests filed are by
candidates of the majority against members-elect of the same majority party, there might be no objection to the
statement. But if electoral protests are filed by candidates of the minority party, it is at this point that a need for a
check on the majority party is greatest, and contrary to the observation made in the above-quoted opinion, such a
cheek is a function that cannot be successfully exercised by the 3 Justices of the Supreme Court, for the obvious
and simple reason that they could easily be outvoted by the 6 members of the majority party in the Tribunal.

x x x           x x x           x x x.

"In the case of the cited opinion of Secretary Abad Santos rendered in 1939, it, did not appear that there were
minority party candidates who were adversely affected by the ruling of the Secretary of Justice and who could have
brought a test case to court." (Emphasis supplied.).

The defenses of waiver and estoppel set up against petitioner Tañada are untenable. Although "an individual may
waive constitutional provisions intended for his benefit", particularly those meant for the protection of his property,
and, sometimes, even those tending "to secure his personal liberty", the power to waive does not exist when "public
policy or public morals" are involved. (11 Am. Jur. 765; I Cooley's Constitutional Limitations, pp. 368-371). The
procedure outlined in the Constitution for the organization, of the Electoral Tribunals was adopted in response to the
demands of the common weal, and it has been held that where a statute is founded on public policy, those to whom
it applies should not be permitted to waive its provisions" (82 C. J. S., 874). Besides, there can be no waiver without
an intent to such effect, which Senator Tañada did not have. Again, the alleged waiver or exhaustion of his rights
does not justify the exercise thereof by a person or party, other than that to which it is vested exclusively by the
Constitution.

The rule estoppel is that "whenever a party has, by his declaration, act or omissions, intentionally and deliberately
led another to believe a particular thing true, and to act upon such belief, he cannot, in a litigation arising out of such
declaration, act or omission, be permitted to falsify it" (Rule 69, sec. 68 [a], Rules of Court). In the case at bar,
petitioner Senator Tañada did not lead the Senate to believe that Senator Primicias could nominate Senators
Cuenco and Delgado. On the contrary, said petitioner repeatedly asserted that his was the exclusive right to make
the nomination. He, likewise, specifically contested said nomination of Senators Cuenco and Delgado. Again, the
rule on estoppel applies to questions of fact, not of law, about the truth of which the other party is ignorant (see
Moran's Comments on the Rules of Court, Vol. 3, pp. 490, 495). Such is not the nature of the situation that
confronted Senator Tañada and the other members of the Senate. Lastly, the case of Zandueta vs. De la Costa (66
Phil., 615), cited by respondents, is not in point. Judge Zandueta assumed office by virtue of an appointment, the
 Page 39 of 122

legality of which he later on assailed. In the case at bar, the nomination and election of Senator Tañada as member
of the Senate Electoral Tribunal was separate, distinct and independent from the nomination and election of
Senators Cuenco and Delgado.

In view of the foregoing, we hold that the Senate may not elect, as members of the Senate Electoral Tribunal, those
Senators who have not been nominated by the political parties specified in the Constitution; that the party having the
largest number of votes in the Senate may nominate not more than three (3) members thereof to said Electoral
Tribunal; that the party having the second largest number of votes in the Senate has the exclusive right to nominate
the other three (3) Senators who shall sit as members in the Electoral Tribunal; that neither these three (3)
Senators, nor any of them, may be nominated by a person or party other than the one having the second largest
number of votes in the Senate or its representative therein; that the Committee on Rules for the Senate has no
standing to validly make such nomination and that the nomination of Senators Cuenco and Delgado by Senator
Primicias, and the election of said respondents by the Senate, as members of said Tribunal, are null and void ab
initio.

As regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, we are not prepared
to hold, however, that their appointments were null and void. Although recommended by Senators Cuenco and
Delgado, who are not lawful members of the Senate Electoral Tribunal, they were appointed by its Chairman,
presumably, with the consent of the majority of the de jure members of said body 14 or, pursuant to the Rules
thereof. At any rate, as held in Suanes vs. Chief Accountant (supra), the election of its personnel is an internal
matter falling within the jurisdiction and control of said body, and there is every reason to believe that it will,
hereafter take appropriate measures, in relation to the four (4) respondents abovementioned, conformably with the
spirit of the Constitution and of, the decision in the case at bar.

Wherefore, judgment is hereby rendered declaring that, respondents Senators Mariano Jesus Cuenco and
Francisco A. Delgado have not been duly elected as Members of the Senate Electoral Tribunal, that they are not
entitled to act as such and that they should be, as they are hereby, enjoined from exercising the powers and duties
of Members of said Electoral Tribunal and from acting in such capacity in connection with Senate Electoral Case No.
4 thereof. With the qualification stated above, the petition is dismissed, as regards respondents Alfredo Cruz,
Catalina Cayetano, Manuel Serapio and Placido Reyes. Without special pronouncement as to costs. It is so
ordered.

SEPARATION OF POWERS
 Page 40 of 122

G.R. No. 86344 December 21, 1989

REP. RAUL A. DAZA, petitioner,

vs.
REP. LUIS C. SINGSON and HON. RAOUL V. VICTORINO IN THE LATTER'S CAPACITY AS SECRETARY OF
THE COMMISSION ON APPOINTMENTS, respondent.

After the congressional elections of May 11, 1987, the House of Representatives proportionally apportioned its
twelve seats in the Commission on Appointments among the several political parties represented in that chamber,
including the Lakas ng Bansa, the PDP-Laban, the NP-Unido, the Liberal Party, and the KBL, in accordance with
Article VI, Section 18, of the Constitution. Petitioner Raul A. Daza was among those chosen and was listed as a
representative of the Liberal Party. 1

On September 16, 1988, the Laban ng Demokratikong Pilipino was reorganized, resulting in a political realignment
in the House of Representatives. Twenty four members of the Liberal Party formally resigned from that party and
joined the LDP, thereby swelling its number to 159 and correspondingly reducing their former party to only 17
members. 2

On the basis of this development, the House of Representatives revised its representation in the Commission on
Appointments by withdrawing the seat occupied by the petitioner and giving this to the newly-formed LDP. On
December 5, 1988, the chamber elected a new set of representatives consisting of the original members except the
petitioner and including therein respondent Luis C. Singson as the additional member from the LDP. 3

The petitioner came to this Court on January 13, 1989, to challenge his removal from the Commission on
Appointments and the assumption of his seat by the respondent. Acting initially on his petition for prohibition and
injunction with preliminary injunction, we issued a temporary restraining order that same day to prevent both the
petitioner and the respondent from serving in the Commission on Appointments. 4

Briefly stated, the contention of the petitioner is that he cannot be removed from the Commission on Appointments
because his election thereto is permanent under the doctrine announced in Cunanan v. Tan. 5 His claim is that the
reorganization of the House representation in the said body is not based on a permanent political realignment
because the LDP is not a duly registered political party and has not yet attained political stability.

For his part, the respondent argues that the question raised by the petitioner is political in nature and so beyond the
jurisdiction of this Court. He also maintains that he has been improperly impleaded, the real party respondent being
the House of Representatives which changed its representation in the Commission on Appointments and removed
the petitioner. Finally, he stresses that nowhere in the Constitution is it required that the political party be registered
to be entitled to proportional representation in the Commission on Appointments.

In addition to the pleadings filed by the parties, a Comment was submitted by the Solicitor General as amicus curiae
in compliance with an order from the Court.

At the core of this controversy is Article VI, Section 18, of the Constitution providing as follows:

Sec. 18. There shall be a Commission on Appointments consisting of the President of the Senate, as
ex officio Chairman, twelve Senators and twelve Members of the House of Representatives, elected
by each House on the basis of proportional representation from the political parties and parties or
organizations registered under the party-list system represented therein. The Chairman of the
Commission shall not vote, except in case of a tie. The Commission shall act on all appointments
submitted to it within thirty session days of the Congress from their submission. The Commission
shall rule by a majority vote of all the Members.

Ruling first on the jurisdictional issue, we hold that, contrary to the respondent's assertion, the Court has the
competence to act on the matter at bar. Our finding is that what is before us is not a discretionary act of the House
of Representatives that may not be reviewed by us because it is political in nature. What is involved here is the
 Page 41 of 122

legality, not the wisdom, of the act of that chamber in removing the petitioner from the Commission on
Appointments. That is not a political question because, as Chief Justice Concepcion explained in Tanada v.
Cuenco. 6

... the term "political question" connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, ... 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 Legislature or executive branch of the
Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular
measure.

In the aforementioned case, the Court was asked by the petitioners therein to annul the election of two members of
the Senate Electoral Tribunal of that chamber, on the ground that they had not been validly nominated. The Senate
then consisted of 23 members from the Nacionalista Party and the petitioner as the lone member of the Citizens
Party. Senator Lorenzo M. Tanada nominated only himself as the minority representative in the Tribunal, whereupon
the majority elected Senators Mariano J. Cuenco. and Francisco Delgado, from its own ranks, to complete the nine-
man composition of the Tribunal as provided for in the 1935 Constitution. The petitioner came to this Court,
contending that under Article VI, Section 11, of that Charter, the six legislative members of the Tribunal were to be
chosen by the Senate, "three upon nomination of the party having the largest number of votes and three of the party
having the second largest number of votes therein." As the majority party in the Senate, the Nacionalista Party could
nominate only three members and could not also fill the other two seats pertaining to the minority.

By way of special and affirmative defenses, the respondents contended inter alia that the subject of the petition was
an internal matter that only the Senate could resolve. The Court rejected this argument, holding that what was
involved was not the wisdom of the Senate in choosing the respondents but the legality of the choice in light of the
requirement of the Constitution. The petitioners were questioning the manner of filling the Tribunal, not the
discretion of the Senate in doing so. The Court held that this was a justiciable and not a political question, thus:

Such is not the nature of the question for determination in the present case. Here, we are called
upon to decide whether the election of Senators Cuenco and Delgado by the Senate, as members of
the Senate Electoral Tribunal, upon nomination by Senator Primicias-member and spokesman of the
party having the largest number of votes in the Senate-behalf of its Committee on Rules,
contravenes the constitutional mandate that said members of the Senate Electoral Tribunal shall be
chosen "upon nomination ... of the party having the second largest number of votes" in the Senate
and hence, is null and void. The Senate is not clothed with "full discretionary authority" in the choice
of members of the Senate Electoral Tribunal. The exercise of its power thereon is subject to
constitutional limitations which are claimed to be mandatory in nature. It is clearly within the
legitimate province of the judicial department to pass upon the validity of the proceeding in
connection therewith.

... whether an election of public officers has been in accordance with law is for the judiciary.
Moreover, where the legislative department has by statute prescribed election procedure in a given
situation, the judiciary may determine whether a particular election has been in conformity with such
statute, and particularly, whether such statute has been applied in a way to deny or transgress on
constitutional or statutory rights ...' (1 6 C.J.S., 439; emphasis supplied)

It is, therefore, our opinion that we have, not only jurisdiction but also the duty, to consider and
determine the principal issue raised by the parties herein."

Although not specifically discussed, the same disposition was made in Cunanan v. Tan as it likewise involved the
manner or legality of the organization of the Commission on Appointments, not the wisdom or discretion of the
House in the choice of its representatives.

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that,
even if we were to assume that the issue presented before us was political in nature, we would still not be precluded
 Page 42 of 122

from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question. Article VII, Section 1, of the Constitution clearly provides:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.

The respondent's contention that he has been improperly impleaded is even less persuasive. While he may be
technically correct in arguing that it is not he who caused the petitioner's removal, we feel that this objection is also
not an insuperable obstacle to the resolution of this controversy. We may, for one thing, treat this proceeding as a
petition for quo warranto as the petitioner is actually questioning the respondent's right to sit as a member of the
Commission on Appointments. For another, we have held as early as in the Emergency Powers Cases  7 that where
serious constitutional questions are involved, "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." The same policy
has since then been consistently followed by the Court, as in Gonzales v. Commission on Elections, 8 where we
held through Chief Justice Fernando:

In the course of the deliberations, a serious procedural objection was raised by five members of the
Court. It is their view that respondent Commission on Elections not being sought to be restrained
from performing any specific act, this suit cannot be characterized as other than a mere request for
an advisory opinion. Such a view, from the remedial law standpoint, has much to recommend it.
Nonetheless, a majority would affirm the original stand that under the circumstances, it could still
rightfully be treated as a petition for prohibition.

The language of justice Laurel fits the case: "All await 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 [its] constitutionality ... be now
resolved.' It may likewise be added that the exceptional character of the situation that confronts us,
the paramount public interest, and the undeniable necessity for ruling, the national elections being
barely six months away, reinforce our stand. It would appear undeniable, therefore, that before us is
an appropriate invocation of our jurisdiction to prevent the enforcement of an alleged unconstitutional
statute. We are left with no choice then; we must act on the matter.

Coming now to the more crucial question, the Court notes that both the petitioner and the respondent are invoking
the case of Cunanan v. Tan to support their respective positions. It is best, therefore, to make a quick review of that
case for a proper disposition of this one.

In the election for the House of Representatives held in 1961, 72 seats were won by the Nacionalista Party, 29 by
the Liberal Party and 1 by an independent. Accordingly, the representation of the chamber in the Commission on
Appointments was apportioned to 8 members from the Nacionalista Party and 4 from the Liberal Party.
Subsequently, 25 members of the Nacionalista Party, professing discontent over the House leadership, made
common cause with the Liberal Party and formed what was called the Allied Majority to install a new Speaker and
reorganize the chamber. Included in this reorganization was the House representation in the Commission on
appointments where three of the Nacionalista congressmen originally chosen were displaced by three of their party
colleagues who had joined the Allied Majority.

Petitioner Carlos Cunanan's ad interim appointment as Deputy Administrator of the Reforestration Administration
was rejected by the Commission on Appointments as thus reorganized and respondent Jorge Tan, Jr. was
thereafter designated in his place. Cunanan then came to this Court, contending that the rejection of his
appointment was null and void because the Commission itself was invalidly constituted.
 Page 43 of 122

The Court agreed. It noted that the Allied Majority was a merely temporary combination as the Nacionalista
defectors had not disaffiliated from their party and permanently joined the new political group. Officially, they were
still members of the Nacionalista Party. The reorganization of the Commission on Appointments was invalid
because it was not based on the proportional representation of the political parties in the House of Representatives
as required by the Constitution. The Court held:

... In other words, a shifting of votes at a given time, even if du to arrangements of a more or less
temporary nature, like the one that has led to the formation of the so-called "Allied Majority," does
not suffice to authorize a reorganization of the membership of the Commission for said House.
Otherwise the Commission on Appointments may have to be reorganized as often as votes shift
from one side to another in the House. The framers of our Constitution could not have intended to
thus place a constitutional organ, like the Commission on Appointments, at the mercy of each House
of Congress.

The petitioner vigorously argues that the LDP is not the permanent political party contemplated in the Constitution
because it has not been registered in accordance with Article IX-B, Section 2(5), in relation to the other provisions of
the Constitution. He stresses that the so-called party has not yet achieved stability and suggests it might be no
different from several other political groups that have died "a-bornin'," like the LINA, or have subsequently
floundered, like the UNIDO.

The respondent also cites Cunanan but from a different viewpoint. According to him, that case expressly allows
reorganization at any time to reflect changes in the political alignments in Congress, provided only that such
changes are permanent. The creation of the LDP constituting the bulk of the former PDP-Laban and to which no
less than 24 Liberal congressmen had transferred was a permanent change. That change fully justified his
designation to the Commission on Appointments after the reduction of the LP representation therein. Thus, the
Court held:

Upon the other hand, the constitutional provision to the effect that "there shall be a Commission on
Appointments consisting of twelve (12) Senators and twelve (12) members of the House of
Representatives elected by each House, respectively, on the basis of proportional
REPRESENTATION OF THE POLITICAL PARTIES THEREIN," necessarily connotes the authority
of each House of Congress to see to it that this requirement is duly complied with. As a
consequence, it may take appropriate measures, not only upon the initial organization of the
Commission, but also, subsequently thereto. If by reason of successful election protests against
members of a House, or of their expulsion from the political party to which they belonged and/or of
their affiliation with another political party, the ratio in the representation of the political parties in the
House is materially changed, the House is clothed with authority to declare vacant the necessary
number of seats in the Commission on Appointments held by members of said House belonging to
the political party adversely affected by the change and then fill said vacancies in conformity with the
Constitution.

In the course of the spirited debate on this matter between the petitioner and the respondent (who was supported by
the Solicitor General) an important development has supervened to considerably simplify the present controversy.
The petitioner, to repeat, bases his argument heavily on the non-registration of the LDP which, he claims has not
provided the permanent political realignment to justify the questioned reorganization. As he insists:

(c) Assuming that the so-called new coalesced majority is actually the LDP itself,
then the proposed reorganization is likewise illegal and ineffectual, because the LDP,
not being a duly registered political party, is not entitled to the "rights and privileges
granted by law to political parties' (See. 160, BP No. 881), and therefore cannot
legally claim the right to be considered in determining the required proportional
representation of political parties in the House of Representatives. 9

xxx xxx xxx

 Page 44 of 122

... the clear constitutional intent behind Section 18, Article VI, of the 1987 Constitution, is to give the
right of representation in the Commission on Appointment only to political parties who are duly
registered with the Comelec. 10

On November 23, 1989, however, that argument boomeranged against the petitioner. On that date, the Commission
on Elections in an en banc resolution affirmed the resolution of its First Division dated August 28, 1989, granting the
petition of the LDP for registration as a political party. 11 This has taken the wind out of the sails of the petitioner, so
to speak, and he must now limp to shore as best he can.

The petitioner's contention that, even if registered, the party must still pass the test of time to prove its permanence
is not acceptable. Under this theory, a registered party obtaining the majority of the seats in the House of
Representatives (or the Senate) would still not be entitled to representation in the Commission on Appointments as
long as it was organized only recently and has not yet "aged." The Liberal Party itself would fall in such a category.
That party was created in December 1945 by a faction of the Nacionalista Party that seceded therefrom to support
Manuel A. Roxas's bid for the Presidency of the Philippines in the election held on April 23, 1946. 12 The Liberal
Party won. At that time it was only four months old. Yet no question was raised as to its right to be represented in
the Commission on Appointments and in the Electoral Tribunals by virtue of its status as the majority party in both
chambers of the Congress.

The LDP has been in existence for more than one year now. It now has 157 members in the House of
Representatives and 6 members in the Senate. Its titular head is no less than the President of the Philippines and its
President is Senator Neptali A. Gonzales, who took over recently from Speaker Ramon V. Mitra. It is true that there
have been, and there still are, some internal disagreements among its members, but these are to be expected in
any political organization, especially if it is democratic in structure. In fact even the monolithic Communist Party in a
number of socialist states has undergone similar dissension, and even upheavals. But it surely cannot be
considered still temporary because of such discord.

If the petitioner's argument were to be pursued, the 157 members of the LDP in the House of Representatives would
have to be denied representation in the Commission on Appointments and, for that matter, also the Electoral
Tribunal. By the same token, the KBL, which the petitioner says is now "history only," should also be written off. The
independents also cannot be represented because they belong to no political party. That would virtually leave the
Liberal Party only with all of its seventeen members to claim all the twelve seats of the House of Representatives in
the Commission on Appointments and the six legislative seats in the House Electoral Tribunal.

It is noteworthy that when with 41 members the Liberal Party was alloted two of the seats in the Commission on
Appointments, it did not express any objection. 13 Inconsistently, the petitioner is now opposed to the withdrawal
from it of one seat although its original number has been cut by more than half.

As for the other condition suggested by the petitioner, to wit, that the party must survive in a general congressional
election, the LDP has doubtless also passed that test, if only vicariously. It may even be said that as it now
commands the biggest following in the House of Representatives, the party has not only survived but in fact
prevailed. At any rate, that test was never laid down in Cunanan.

To summarize, then, we hold, in view of the foregoing considerations, that the issue presented to us is justiciable
rather political, involving as it does the legality and not the wisdom of the act complained of, or the manner of filling
the Commission on Appointments as prescribed by the Constitution. Even if the question were political in nature, it
would still come within our powers of review under the expanded jurisdiction conferred upon us by Article VIII,
Section 1, of the Constitution, which includes the authority to determine whether grave abuse of discretion
amounting to excess or lack of jurisdiction has been committed by any branch or instrumentality of the government.
As for the alleged technical flaw in the designation of the party respondent, assuming the existence of such a defect,
the same may be brushed aside, conformably to existing doctrine, so that the important constitutional issue raised
may be addressed. Lastly, we resolve that issue in favor of the authority of the House of Representatives to change
its representation in the Commission on Appointments to reflect at any time the changes that may transpire in the
political alignments of its membership. It is understood that such changes must be permanent and do not include
the temporary alliances or factional divisions not involving severance of political loyalties or formal disaffiliation and
permanent shifts of allegiance from one political party to another.
 Page 45 of 122

The Court would have preferred not to intervene in this matter, leaving it to be settled by the House of
Representatives or the Commission on Appointments as the bodies directly involved. But as our jurisdiction has
been invoked and, more importantly, because a constitutional stalemate had to be resolved, there was no
alternative for us except to act, and to act decisively. In doing so, of course, we are not imposing our will upon the
said agencies, or substituting our discretion for theirs, but merely discharging our sworn responsibility to interpret
and apply the Constitution. That is a duty we do not evade, lest we ourselves betray our oath.

WHEREFORE, the petition is DISMISSED. The temporary restraining order dated January 13, 1989, is LIFTED. The
Court holds that the respondent has been validly elected as a member of the Commission on Appointments and is
entitled to assume his seat in that body pursuant to Article VI, Section 18, of the Constitution. No pronouncement as
to costs.

SO ORDERED.
 Page 46 of 122

DELEGATION OF POWERS

G.R. No. L-45685 December 22, 1937

THE PEOPLE OF THE PHILIPPINES and THE HONGKONG & SHANGHAI BANKING
CORPORATION, petitioner,
vs.
JOSE O. VERA, Judge ad interim of First Instance of Manila, and MARIANO CU UNJIENG, respondents.

After rendition of the judgment of this court in the above-entitled case, the respondent Mariano Cu Unjieng, on
November 26, 1937, gave notice of his intention to petition the Supreme Court of the United State for a writ
of certiorari for the review of said judgment and, desiring to stay execution during the pendency of the application for
the writ and of the proceedings relative thereto in the Supreme Court of the United State, now prays that the
corresponding supersedeas bond be fixed, as provided by the rules of this court. The People of the Philippines and
the Hongkong and Shanghai Banking Corporation, petitioners in the above-entitled case, oppose the application of
the respondent for the granting of a supersedeas bond.

The original action instituted in this court which resulted in the declaration of unconstitutionality of the Probation Act
(No. 4221 ) was for certiorari and prohibition. Respondent Mariano Cu Unjieng, thru counsel, states that
as certiorari and prohibition are civil remedies, it is mandatory upon this court to stay enforcement of its judgment in
the above-entitled case. (Sec. 46 [a] infra, Rules of the Supreme Court of the Philippines.) He also calls attention to
the principle that probation can not be granted after the defendant has begun the service of his sentence and to the
policy of this court to encourage review of its decisions and judgments on certiorari by the Federal Supreme Court.
In opposition, the petitioners state that the judgment of this court declaring the Probation Act unconstitutional and
void is self-executing; that there is no judgment in the instant proceedings to be executed and that the supersedeas
will serve no useful purpose. The petitioner gave answer to the foregoing objections raised by the respondent and
reiterated the arguments advanced by him in support of his petition for the fixing of the bond.

Section 46 (a) of the rules of this court provides that:

Whenever it is made to appear by notice in writing that any party to a civil case in which final judgment has
been rendered by this court intends to petition the Supreme Court of the United States for a writ
of certiorari for the review of the decision and judgment of his court, and it appears that the case is one
which, by reason of the amount involved or the nature of the questions of law presented, may be removed to
the Supreme Court of the United States by writ of certiorari, and it further appears that the party intending to
make application for such writ desires to stay the enforcement of the judgment of this court during the
pendency of the application for the writ of certiorari and of the proceeding in the Supreme Court of the
United States, it such is granted, this court shall grant a stay, for a term not to exceed ten days, within which
the moving party may give a supersedeas bond, and shall designate one of its members to determine the
sufficiency of such bond.

The foregoing rule requires that in any civil case in which final judgment has been rendered by this court, if any
party thereto gives notice in writing of his intention to remove the case to the Supreme Court of the United States by
writ of certiorari, this court shall grant a stay for the period therein mentioned within which said party may give a
supersedeas bond, the sufficiency of which is to be determined by one of the members of this court. It is admitted
that certiorari and prohibition are civil remedies but the certiorari and prohibition proceedings originally instituted in
this court were, like the proceedings for probation, an incident of the criminal case. Apart from this, it will be noted
that the appeal taken is from the judgment of this court declaring the Probation Act unconstitutional and void. That
judgment does not command or permit any act to be done. There is nothing there to be actively enforced by
execution or otherwise. Because of its negative or prohibitive character, there is nothing to supersede; nothing, as
petitioners assert, upon which the stay bond can operate. In reality, the supersedeas is intended to operate on the
 Page 47 of 122

decision and judgment in the criminal case entitled "The People of the Philippines Islands vs. Mariano Cu Unjieng et
al." The decision of the Court of First Instance of Manila in that case, rendered on January 8, 1934 (Criminal Case
No. 42649), was affirmed by this court on March 26, 1935 (G.R. No. 41200), 1. The decision of this court in that
criminal case has already become final and the petition for a writ of certiorari to review said decision was denied by
the Supreme Court of the United States in November of last year. At bottom, supersedeas is being sought to stay
the execution of the final judgment in said criminal case. Thereby, the petitioner will continue to be at large and this
is the status quo desired to be maintained. We do not think that this should be allowed. (Sec. 46 [f], Rules of the
Supreme Court of the Philippines.) The suspensive effect of supersedeas can only operate in this case on the
judgment sought to be reviewed and cannot arrest the execution of the final judgment rendered in the criminal case
against the respondent Mariano Cu Unjieng. (Cyc. of Fed. Proc., Civil and Criminal, Longsdorf, vol. 6, sec. 2869, p.
362.)

The public interest and the interest of the speedy administration of justice demand prompt execution of the final
sentence of conviction rendered against the petitioner. Said petitioner has had all the time and opportunity which the
law can possibly afford to anyone in self-defense. He had the assistance of able counsel and opportunity to appeal
to this court and the Supreme Court of the United States, and the least that can be said is that he must abide by this
judgment and serve his term. It is further to be observed that the petition for probation of the respondent Mariano Cu
Unjieng has already by the trial court.

There is force in the argument that where the case is appealable under the Constitution and law to the Supreme
Court of the United States, this court is but an agent of that court and must permit the case to take its due course. In
such a case, the appeal is a matter of right. But from this premise it does not follow that a stay must be granted by
this court where nothing can be stayed, or that the final decision in a criminal case which can no longer be appealed
from should be superseded. Upon the other hand, the wide latitude necessarily possessed by this court in the
interpretation of its Rules must be exercised in favor of what is believed to be a matter of public interest in the
present case.

As a rule of federal practice in the United States, section 8 cd. of the Act of Congress of February 13, 1925 (43 Stat.,
936, 940; 28 U.S.C.A., sec. 350), provides that in any case the execution and enforcement of final judgment or
degree which is subject to review by the Supreme Court of the United States on writ of certiorari is discretionary with
"a judge of the court rendering the judgment or decree or by the Justice of the Supreme Court," and this rule is
reiterated in paragraph 6 of Rule 38 of the Supreme Court of the United States. (Robertson & Kirkham, sec. 413, p.
831 et seq.) In Magnum Import Co. vs. De Spoturno Coty (262 U.S., 159,163; 43 S. Ct., 531; 67 Law. ed., 922), the
Supreme Court of the United States, though Chief Justice Taft, said:lawphil.net

The petition should, in the first instance, be made to the circuit court of appeals, which, with its complete
knowledge of the cases, may, with full consideration, promptly pass on it. That court is in a position to judge,
first, whether the case is one likely, under our practice, to be taken up by us on certiorari; and, second,
whether the balance of convenience requires a suspension of its decree and a withholding of its mandate. It
involves no disrespect to this court for the circuit court of appeals to refuse to withhold its mandate or to
suspend the operation f its judgment or decree pending application for certiorari to us. If it thinks a question
involved should be ruled upon by this court, it may certify it. If it does not certify, it may still consider that the
case is one in which a certiorari may properly issue, and may, in its discretion, facilitate the application by
witholding the mandate or suspend in its decree. If it refuses, this court requires an extaordinary showing
before it will grant a stay of the decree below pending the application for a certiorari, and even after it has
granted a certiorari, it requires a clear case and decided balance of convenience before it will grant such
stay. These remarks, of course, apply also to applications for certiorari to review judgments and decrees of
the highest courts of states.

Petition for stay of execution and the fixing of a supersedeas bond is denied. So ordered.
 Page 48 of 122

DELEGATION OF POWERS

G.R. No. 17122             February 27, 1922

THE UNITED STATES, plaintiff-appellee,

vs.
ANG TANG HO, defendant-appellant.

At its special session of 1919, the Philippine Legislature passed Act No. 2868, entitled "An Act penalizing the
monopoly and holding of, and speculation in, palay, rice, and corn under extraordinary circumstances, regulating the
distribution and sale thereof, and authorizing the Governor-General, with the consent of the Council of State, to
issue the necessary rules and regulations therefor, and making an appropriation for this purpose," the material
provisions of which are as follows:

Section 1. The Governor-General is hereby authorized, whenever, for any cause, conditions arise resulting
in an extraordinary rise in the price of palay, rice or corn, to issue and promulgate, with the consent of the
Council of State, temporary rules and emergency measures for carrying out the purpose of this Act, to wit:

(a) To prevent the monopoly and hoarding of, and speculation in, palay, rice or corn.

(b) To establish and maintain a government control of the distribution or sale of the commodities referred to
or have such distribution or sale made by the Government itself.

(c) To fix, from time to time the quantities of palay rice, or corn that a company or individual may acquire,
and the maximum sale price that the industrial or merchant may demand.

(d) . . .

SEC. 2. It shall be unlawful to destroy, limit, prevent or in any other manner obstruct the production or milling
of palay, rice or corn for the purpose of raising the prices thereof; to corner or hoard said products as
defined in section three of this Act; . . .

Section 3 defines what shall constitute a monopoly or hoarding of palay, rice or corn within the meaning of this Act,
but does not specify the price of rice or define any basic for fixing the price.

SEC. 4. The violations of any of the provisions of this Act or of the regulations, orders and decrees
promulgated in accordance therewith shall be punished by a fine of not more than five thousands pesos, or
by imprisonment for not more than two years, or both, in the discretion of the court: Provided, That in the
case of companies or corporations the manager or administrator shall be criminally liable.

SEC. 7. At any time that the Governor-General, with the consent of the Council of State, shall consider that
the public interest requires the application of the provisions of this Act, he shall so declare by proclamation,
and any provisions of other laws inconsistent herewith shall from then on be temporarily suspended.
 Page 49 of 122

Upon the cessation of the reasons for which such proclamation was issued, the Governor-General, with the
consent of the Council of State, shall declare the application of this Act to have likewise terminated, and all
laws temporarily suspended by virtue of the same shall again take effect, but such termination shall not
prevent the prosecution of any proceedings or cause begun prior to such termination, nor the filing of any
proceedings for an offense committed during the period covered by the Governor-General's proclamation.

August 1, 1919, the Governor-General issued a proclamation fixing the price at which rice should be sold.

August 8, 1919, a complaint was filed against the defendant, Ang Tang Ho, charging him with the sale of rice at an
excessive price as follows:

The undersigned accuses Ang Tang Ho of a violation of Executive Order No. 53 of the Governor-General of
the Philippines, dated the 1st of August, 1919, in relation with the provisions of sections 1, 2 and 4 of Act No.
2868, committed as follows:

That on or about the 6th day of August, 1919, in the city of Manila, Philippine Islands, the said Ang Tang Ho,
voluntarily, illegally and criminally sold to Pedro Trinidad, one ganta of rice at the price of eighty centavos
(P.80), which is a price greater than that fixed by Executive Order No. 53 of the Governor-General of the
Philippines, dated the 1st of August, 1919, under the authority of section 1 of Act No. 2868. Contrary to law.

Upon this charge, he was tried, found guilty and sentenced to five months' imprisonment and to pay a fine of P500,
from which he appealed to this court, claiming that the lower court erred in finding Executive Order No. 53 of 1919,
to be of any force and effect, in finding the accused guilty of the offense charged, and in imposing the sentence.

The official records show that the Act was to take effect on its approval; that it was approved July 30, 1919; that the
Governor-General issued his proclamation on the 1st of August, 1919; and that the law was first published on the
13th of August, 1919; and that the proclamation itself was first published on the 20th of August, 1919.

The question here involves an analysis and construction of Act No. 2868, in so far as it authorizes the Governor-
General to fix the price at which rice should be sold. It will be noted that section 1 authorizes the Governor-General,
with the consent of the Council of State, for any cause resulting in an extraordinary rise in the price of palay, rice or
corn, to issue and promulgate temporary rules and emergency measures for carrying out the purposes of the Act.
By its very terms, the promulgation of temporary rules and emergency measures is left to the discretion of the
Governor-General. The Legislature does not undertake to specify or define under what conditions or for what
reasons the Governor-General shall issue the proclamation, but says that it may be issued "for any cause," and
leaves the question as to what is "any cause" to the discretion of the Governor-General. The Act also says: "For any
cause, conditions arise resulting in an extraordinary rise in the price of palay, rice or corn." The Legislature does not
specify or define what is "an extraordinary rise." That is also left to the discretion of the Governor-General. The Act
also says that the Governor-General, "with the consent of the Council of State," is authorized to issue and
promulgate "temporary rules and emergency measures for carrying out the purposes of this Act." It does not specify
or define what is a temporary rule or an emergency measure, or how long such temporary rules or emergency
measures shall remain in force and effect, or when they shall take effect. That is to say, the Legislature itself has not
in any manner specified or defined any basis for the order, but has left it to the sole judgement and discretion of the
Governor-General to say what is or what is not "a cause," and what is or what is not "an extraordinary rise in the
price of rice," and as to what is a temporary rule or an emergency measure for the carrying out the purposes of the
Act. Under this state of facts, if the law is valid and the Governor-General issues a proclamation fixing the minimum
price at which rice should be sold, any dealer who, with or without notice, sells rice at a higher price, is a criminal.
There may not have been any cause, and the price may not have been extraordinary, and there may not have been
an emergency, but, if the Governor-General found the existence of such facts and issued a proclamation, and rice is
sold at any higher price, the seller commits a crime.

By the organic law of the Philippine Islands and the Constitution of the United States all powers are vested in the
Legislative, Executive and Judiciary. It is the duty of the Legislature to make the law; of the Executive to execute the
law; and of the Judiciary to construe the law. The Legislature has no authority to execute or construe the law, the
Executive has no authority to make or construe the law, and the Judiciary has no power to make or execute the law.
 Page 50 of 122

Subject to the Constitution only, the power of each branch is supreme within its own jurisdiction, and it is for the
Judiciary only to say when any Act of the Legislature is or is not constitutional. Assuming, without deciding, that the
Legislature itself has the power to fix the price at which rice is to be sold, can it delegate that power to another, and,
if so, was that power legally delegated by Act No. 2868? In other words, does the Act delegate legislative power to
the Governor-General? By the Organic Law, all Legislative power is vested in the Legislature, and the power
conferred upon the Legislature to make laws cannot be delegated to the Governor-General, or any one else. The
Legislature cannot delegate the legislative power to enact any law. If Act no 2868 is a law unto itself and within itself,
and it does nothing more than to authorize the Governor-General to make rules and regulations to carry the law into
effect, then the Legislature itself created the law. There is no delegation of power and it is valid. On the other hand,
if the Act within itself does not define crime, and is not a law, and some legislative act remains to be done to make it
a law or a crime, the doing of which is vested in the Governor-General, then the Act is a delegation of legislative
power, is unconstitutional and void.

The Supreme Court of the United States in what is known as the Granger Cases (94 U.S., 183-187; 24 L. ed., 94),
first laid down the rule:

Railroad companies are engaged in a public employment affecting the public interest and, under the
decision in Munn vs. Ill., ante, 77, are subject to legislative control as to their rates of fare and freight unless
protected by their charters.

The Illinois statute of Mar. 23, 1874, to establish reasonable maximum rates of charges for the
transportation of freights and passengers on the different railroads of the State is not void as being
repugnant to the Constitution of the United States or to that of the State.

It was there for the first time held in substance that a railroad was a public utility, and that, being a public utility, the
State had power to establish reasonable maximum freight and passenger rates. This was followed by the State of
Minnesota in enacting a similar law, providing for, and empowering, a railroad commission to hear and determine
what was a just and reasonable rate. The constitutionality of this law was attacked and upheld by the Supreme
Court of Minnesota in a learned and exhaustive opinion by Justice Mitchell, in the case of State vs. Chicago,
Milwaukee & St. Paul ry. Co. (38 Minn., 281), in which the court held:

Regulations of railway tariffs — Conclusiveness of commission's tariffs. — Under Laws 1887, c. 10, sec. 8,
the determination of the railroad and warehouse commission as to what are equal and reasonable fares and
rates for the transportation of persons and property by a railway company is conclusive, and, in proceedings
by mandamus to compel compliance with the tariff of rates recommended and published by them, no issue
can be raised or inquiry had on that question.

Same — constitution — Delegation of power to commission. — The authority thus given to the commission
to determine, in the exercise of their discretion and judgement, what are equal and reasonable rates, is not a
delegation of legislative power.

It will be noted that the law creating the railroad commission expressly provides —

That all charges by any common carrier for the transportation of passengers and property shall be equal and
reasonable.

With that as a basis for the law, power is then given to the railroad commission to investigate all the facts, to hear
and determine what is a just and reasonable rate. Even then that law does not make the violation of the order of the
commission a crime. The only remedy is a civil proceeding. It was there held —

That the legislative itself has the power to regulate railroad charges is now too well settled to require either
argument or citation of authority.

The difference between the power to say what the law shall be, and the power to adopt rules and
regulations, or to investigate and determine the facts, in order to carry into effect a law already passed, is
 Page 51 of 122

apparent. The true distinction is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and the conferring an authority or discretion to be exercised
under and in pursuance of the law.

The legislature enacts that all freights rates and passenger fares should be just and reasonable. It had the
undoubted power to fix these rates at whatever it deemed equal and reasonable.

They have not delegated to the commission any authority or discretion as to what the law shall be, — which
would not be allowable, — but have merely conferred upon it an authority and discretion, to be exercised in
the execution of the law, and under and in pursuance of it, which is entirely permissible. The legislature itself
has passed upon the expediency of the law, and what is shall be. The commission is intrusted with no
authority or discretion upon these questions. It can neither make nor unmake a single provision of law. It is
merely charged with the administration of the law, and with no other power.

The delegation of legislative power was before the Supreme Court of Wisconsin in Dowling  vs. Lancoshire Ins. Co.
(92 Wis., 63). The opinion says:

"The true distinction is between the delegation of power to make the law, which necessarily involves a
discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised
under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made."

The act, in our judgment, wholly fails to provide definitely and clearly what the standard policy should contain, so
that it could be put in use as a uniform policy required to take the place of all others, without the determination of the
insurance commissioner in respect to maters involving the exercise of a legislative discretion that could not be
delegated, and without which the act could not possibly be put in use as an act in confirmity to which all fire
insurance policies were required to be issued.

The result of all the cases on this subject is that a law must be complete, in all its terms and provisions, when it
leaves the legislative branch of the government, and nothing must be left to the judgement of the electors or other
appointee or delegate of the legislature, so that, in form and substance, it is a law in all its details  in presenti, but
which may be left to take effect in futuro, if necessary, upon the ascertainment of any prescribed fact or event.

The delegation of legislative power was before the Supreme Court in United States vs. Grimaud (220 U.S., 506; 55
L. ed., 563), where it was held that the rules and regulations of the Secretary of Agriculture as to a trespass on
government land in a forest reserve were valid constitutional. The Act there provided that the Secretary of
Agriculture ". . . may make such rules and regulations and establish such service as will insure the object of such
reservations; namely, to regulate their occupancy and use, and to preserve the forests thereon from
destruction; and any violation of the provisions of this act or such rules and regulations shall be punished, . . ."

The brief of the United States Solicitor-General says:

In refusing permits to use a forest reservation for stock grazing, except upon stated terms or in stated ways,
the Secretary of Agriculture merely assert and enforces the proprietary right of the United States over land
which it owns. The regulation of the Secretary, therefore, is not an exercise of legislative, or even of
administrative, power; but is an ordinary and legitimate refusal of the landowner's authorized agent to allow
person having no right in the land to use it as they will. The right of proprietary control is altogether different
from governmental authority.

The opinion says:

From the beginning of the government, various acts have been passed conferring upon executive officers
power to make rules and regulations, — not for the government of their departments, but for administering
the laws which did govern. None of these statutes could confer legislative power. But when Congress had
legislated power. But when Congress had legislated and indicated its will, it could give to those who were to
act under such general provisions "power to fill up the details" by the establishment of administrative rules
 Page 52 of 122

and regulations, the violation of which could be punished by fine or imprisonment fixed by Congress, or by
penalties fixed by Congress, or measured by the injury done.

That "Congress cannot delegate legislative power is a principle universally recognized as vital to the integrity
and maintenance of the system of government ordained by the Constitution."

If, after the passage of the act and the promulgation of the rule, the defendants drove and grazed their
sheep upon the reserve, in violation of the regulations, they were making an unlawful use of the
government's property. In doing so they thereby made themselves liable to the penalty imposed by
Congress.

The subjects as to which the Secretary can regulate are defined. The lands are set apart as a forest reserve. He is
required to make provisions to protect them from depredations and from harmful uses. He is authorized 'to regulate
the occupancy and use and to preserve the forests from destruction.' A violation of reasonable rules regulating the
use and occupancy of the property is made a crime, not by the Secretary, but by Congress."

The above are leading cases in the United States on the question of delegating legislative power. It will be noted
that in the "Granger Cases," it was held that a railroad company was a public corporation, and that a railroad was a
public utility, and that, for such reasons, the legislature had the power to fix and determine just and reasonable rates
for freight and passengers.

The Minnesota case held that, so long as the rates were just and reasonable, the legislature could delegate the
power to ascertain the facts and determine from the facts what were just and reasonable rates,. and that in vesting
the commission with such power was not a delegation of legislative power.

The Wisconsin case was a civil action founded upon a "Wisconsin standard policy of fire insurance," and the court
held that "the act, . . . wholly fails to provide definitely and clearly what the standard policy should contain, so that it
could be put in use as a uniform policy required to take the place of all others, without the determination of the
insurance commissioner in respect to matters involving the exercise of a legislative discretion that could not be
delegated."

The case of the United States Supreme Court, supra dealt with rules and regulations which were promulgated by
the Secretary of Agriculture for Government land in the forest reserve.

These decisions hold that the legislative only can enact a law, and that it cannot delegate it legislative authority.

The line of cleavage between what is and what is not a delegation of legislative power is pointed out and clearly
defined. As the Supreme Court of Wisconsin says:

That no part of the legislative power can be delegated by the legislature to any other department of the
government, executive or judicial, is a fundamental principle in constitutional law, essential to the integrity
and maintenance of the system of government established by the constitution.

Where an act is clothed with all the forms of law, and is complete in and of itself, it may be provided that it
shall become operative only upon some certain act or event, or, in like manner, that its operation shall be
suspended.

The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to
determine some fact or state of things upon which the law makes, or intends to make, its own action to
depend.

The Village of Little Chute enacted an ordinance which provides:

All saloons in said village shall be closed at 11 o'clock P.M. each day and remain closed until 5 o'clock on
the following morning, unless by special permission of the president.
 Page 53 of 122

Construing it in 136 Wis., 526; 128 A. S. R., 1100, 1 the Supreme Court of that State says:

We regard the ordinance as void for two reasons; First, because it attempts to confer arbitrary power upon
an executive officer, and allows him, in executing the ordinance, to make unjust and groundless
discriminations among persons similarly situated; second, because the power to regulate saloons is a law-
making power vested in the village board, which cannot be delegated. A legislative body cannot delegate to
a mere administrative officer power to make a law, but it can make a law with provisions that it shall go into
effect or be suspended in its operations upon the ascertainment of a fact or state of facts by an
administrative officer or board. In the present case the ordinance by its terms gives power to the president to
decide arbitrary, and in the exercise of his own discretion, when a saloon shall close. This is an attempt to
vest legislative discretion in him, and cannot be sustained.

The legal principle involved there is squarely in point here.

It must be conceded that, after the passage of act No. 2868, and before any rules and regulations were promulgated
by the Governor-General, a dealer in rice could sell it at any price, even at a peso per "ganta," and that he would not
commit a crime, because there would be no law fixing the price of rice, and the sale of it at any price would not be a
crime. That is to say, in the absence of a proclamation, it was not a crime to sell rice at any price. Hence, it must
follow that, if the defendant committed a crime, it was because the Governor-General issued the proclamation.
There was no act of the Legislature making it a crime to sell rice at any price, and without the proclamation, the sale
of it at any price was to a crime.

The Executive order2 provides:

(5) The maximum selling price of palay, rice or corn is hereby fixed, for the time being as follows:

In Manila —

Palay at P6.75 per sack of 57½ kilos, or 29 centavos per ganta.

Rice at P15 per sack of 57½ kilos, or 63 centavos per ganta.

Corn at P8 per sack of 57½ kilos, or 34 centavos per ganta.

In the provinces producing palay, rice and corn, the maximum price shall be the Manila price less the cost of
transportation from the source of supply and necessary handling expenses to the place of sale, to be
determined by the provincial treasurers or their deputies.

In provinces, obtaining their supplies from Manila or other producing provinces, the maximum price shall be
the authorized price at the place of supply or the Manila price as the case may be, plus the transportation
cost, from the place of supply and the necessary handling expenses, to the place of sale, to be determined
by the provincial treasurers or their deputies.

(6) Provincial treasurers and their deputies are hereby directed to communicate with, and execute all
instructions emanating from the Director of Commerce and Industry, for the most effective and proper
enforcement of the above regulations in their respective localities.

The law says that the Governor-General may fix "the maximum sale price that the industrial or merchant may
demand." The law is a general law and not a local or special law.

The proclamation undertakes to fix one price for rice in Manila and other and different prices in other and different
provinces in the Philippine Islands, and delegates the power to determine the other and different prices to provincial
treasurers and their deputies. Here, then, you would have a delegation of legislative power to the Governor-General,
and a delegation by him of that power to provincial treasurers and their deputies, who "are hereby directed to
communicate with, and execute all instructions emanating from the Director of Commerce and Industry, for the most
 Page 54 of 122

effective and proper enforcement of the above regulations in their respective localities." The issuance of the
proclamation by the Governor-General was the exercise of the delegation of a delegated power, and was even a
sub delegation of that power.

Assuming that it is valid, Act No. 2868 is a general law and does not authorize the Governor-General to fix one price
of rice in Manila and another price in Iloilo. It only purports to authorize him to fix the price of rice in the Philippine
Islands under a law, which is General and uniform, and not local or special. Under the terms of the law, the price of
rice fixed in the proclamation must be the same all over the Islands. There cannot be one price at Manila and
another at Iloilo. Again, it is a mater of common knowledge, and of which this court will take judicial notice, that there
are many kinds of rice with different and corresponding market values, and that there is a wide range in the price,
which varies with the grade and quality. Act No. 2868 makes no distinction in price for the grade or quality of the
rice, and the proclamation, upon which the defendant was tried and convicted, fixes the selling price of rice in Manila
"at P15 per sack of 57½ kilos, or 63 centavos per ganta," and is uniform as to all grades of rice, and says nothing
about grade or quality. Again, it will be noted that the law is confined to palay, rice and corn. They are products of
the Philippine Islands. Hemp, tobacco, coconut, chickens, eggs, and many other things are also products. Any law
which single out palay, rice or corn from the numerous other products of the Islands is not general or uniform, but is
a local or special law. If such a law is valid, then by the same principle, the Governor-General could be authorized
by proclamation to fix the price of meat, eggs, chickens, coconut, hemp, and tobacco, or any other product of the
Islands. In the very nature of things, all of that class of laws should be general and uniform. Otherwise, there would
be an unjust discrimination of property rights, which, under the law, must be equal and inform. Act No. 2868 is
nothing more than a floating law, which, in the discretion and by a proclamation of the Governor-General, makes it a
floating crime to sell rice at a price in excess of the proclamation, without regard to grade or quality.

When Act No. 2868 is analyzed, it is the violation of the proclamation of the Governor-General which constitutes the
crime. Without that proclamation, it was no crime to sell rice at any price. In other words, the Legislature left it to the
sole discretion of the Governor-General to say what was and what was not "any cause" for enforcing the act, and
what was and what was not "an extraordinary rise in the price of palay, rice or corn," and under certain undefined
conditions to fix the price at which rice should be sold, without regard to grade or quality, also to say whether a
proclamation should be issued, if so, when, and whether or not the law should be enforced, how long it should be
enforced, and when the law should be suspended. The Legislature did not specify or define what was "any cause,"
or what was "an extraordinary rise in the price of rice, palay or corn," Neither did it specify or define the conditions
upon which the proclamation should be issued. In the absence of the proclamation no crime was committed. The
alleged sale was made a crime, if at all, because the Governor-General issued the proclamation. The act or
proclamation does not say anything about the different grades or qualities of rice, and the defendant is charged with
the sale "of one ganta of rice at the price of eighty centavos (P0.80) which is a price greater than that fixed by
Executive order No. 53."

We are clearly of the opinion and hold that Act No. 2868, in so far as it undertakes to authorized the Governor-
General in his discretion to issue a proclamation, fixing the price of rice, and to make the sale of rice in violation of
the price of rice, and to make the sale of rice in violation of the proclamation a crime, is unconstitutional and void.

It may be urged that there was an extraordinary rise in the price of rice and profiteering, which worked a severe
hardship on the poorer classes, and that an emergency existed, but the question here presented is the
constitutionality of a particular portion of a statute, and none of such matters is an argument for, or against, its
constitutionality.

The Constitution is something solid, permanent an substantial. Its stability protects the life, liberty and property rights
of the rich and the poor alike, and that protection ought not to change with the wind or any emergency condition.
The fundamental question involved in this case is the right of the people of the Philippine Islands to be and live
under a republican form of government. We make the broad statement that no state or nation, living under
republican form of government, under the terms and conditions specified in Act No. 2868, has ever enacted a law
delegating the power to any one, to fix the price at which rice should be sold. That power can never be delegated
under a republican form of government.

In the fixing of the price at which the defendant should sell his rice, the law was not dealing with government
property. It was dealing with private property and private rights, which are sacred under the Constitution. If this law
 Page 55 of 122

should be sustained, upon the same principle and for the same reason, the Legislature could authorize the
Governor-General to fix the price of every product or commodity in the Philippine Islands, and empower him to make
it a crime to sell any product at any other or different price.

It may be said that this was a war measure, and that for such reason the provision of the Constitution should be
suspended. But the Stubborn fact remains that at all times the judicial power was in full force and effect, and that
while that power was in force and effect, such a provision of the Constitution could not be, and was not, suspended
even in times of war. It may be claimed that during the war, the United States Government undertook to, and did, fix
the price at which wheat and flour should be bought and sold, and that is true. There, the United States had
declared war, and at the time was at war with other nations, and it was a war measure, but it is also true that in
doing so, and as a part of the same act, the United States commandeered all the wheat and flour, and took
possession of it, either actual or constructive, and the government itself became the owner of the wheat and flour,
and fixed the price to be paid for it. That is not this case. Here the rice sold was the personal and private property of
the defendant, who sold it to one of his customers. The government had not bought and did not claim to own the
rice, or have any interest in it, and at the time of the alleged sale, it was the personal, private property of the
defendant. It may be that the law was passed in the interest of the public, but the members of this court have taken
on solemn oath to uphold and defend the Constitution, and it ought not to be construed to meet the changing winds
or emergency conditions. Again, we say that no state or nation under a republican form of government ever enacted
a law authorizing any executive, under the conditions states, to fix the price at which a price person would sell his
own rice, and make the broad statement that no decision of any court, on principle or by analogy, will ever be found
which sustains the constitutionality of the particular portion of Act No. 2868 here in question. By the terms of the
Organic Act, subject only to constitutional limitations, the power to legislate and enact laws is vested exclusively in
the Legislative, which is elected by a direct vote of the people of the Philippine Islands. As to the question here
involved, the authority of the Governor-General to fix the maximum price at which palay, rice and corn may be sold
in the manner power in violation of the organic law.

This opinion is confined to the particular question here involved, which is the right of the Governor-General, upon
the terms and conditions stated in the Act, to fix the price of rice and make it a crime to sell it at a higher price, and
which holds that portions of the Act unconstitutional. It does not decide or undertake to construe the constitutionality
of any of the remaining portions of the Act.

The judgment of the lower court is reversed, and the defendant discharged. So ordered.
 Page 56 of 122

DELEGATION OF POWERS

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.

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.
 Page 57 of 122

SECTION 2. This Executive Order shall take effect immediately.

Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen hundred and
eighty.

(SGD.) FERDINAND E. MARCOS

President

Republic of the Philippines

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 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
 Page 58 of 122

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 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
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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. 16 Filthy 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 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. ...

From what has been said, we think it is clear that the enactment of the provisions of the statute
under consideration was required by "the interests of the public generally, as distinguished from
those of a particular class" and that the prohibition of the slaughter of carabaos for human
consumption, so long as these animals are fit for agricultural work or draft purposes was a
 Page 60 of 122

"reasonably necessary" limitation on private ownership, to protect the community from the loss of the
services of such animals by their slaughter by improvident owners, tempted either by greed of
momentary gain, or by a desire to enjoy the luxury of animal food, even when by so doing the
productive power of the community may be measurably and dangerously affected.

In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor man's tractor,
so to speak, has a direct relevance to the public welfare and so is a lawful subject of Executive Order No. 626. The
method chosen in the basic measure is also reasonably necessary for the purpose sought to be achieved and not
unduly oppressive upon individuals, again following the above-cited doctrine. There is no doubt that by banning the
slaughter of these animals except where they are at least seven years old if male and eleven years old if female
upon issuance of the necessary permit, the executive order will be conserving those still fit for farm work or breeding
and preventing their improvident depletion.

But while conceding that the amendatory measure has the same lawful subject as the original executive order, we
cannot say with equal certainty that it complies with the second requirement,  viz., that there be a lawful method. We
note that to strengthen the original measure, Executive Order No. 626-A imposes an absolute ban not on
the slaughter of the carabaos but on their movement, providing that "no carabao regardless of age, sex, physical
condition or purpose (sic) and no carabeef shall be 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 questioned measure is missing

We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their indiscriminate
slaughter, considering that they can be killed anywhere, with no less difficulty in one province than in another.
Obviously, retaining the carabaos in one province will not prevent their slaughter there, any more than moving them
to another province will make it easier to kill them there. As for the carabeef, the prohibition is made to apply to it as
otherwise, so says executive order, it could be easily circumvented by simply killing the animal. Perhaps so.
However, if the movement of the live animals for the purpose of preventing their slaughter cannot be prohibited, it
should follow that there is no reason either to prohibit their transfer as, not to be flippant dead meat.

Even if a reasonable relation between the means and the end were to be assumed, we would still have to reckon
with the sanction that the measure applies for violation of the prohibition. The penalty is outright confiscation of the
carabao or carabeef being transported, to be meted out by the executive authorities, usually the police only. In the
Toribio Case, the statute was sustained because the penalty prescribed was fine and imprisonment, to be imposed
by the court after trial and conviction of the accused. Under the challenged measure, significantly, no such trial is
prescribed, and the property being transported is immediately impounded by the police and declared, by the
measure itself, as forfeited to the government.

In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to the
petitioner only after he had filed a complaint for recovery and given a supersedeas bond of P12,000.00, which was
ordered confiscated upon his failure to produce the carabaos when ordered by the trial court. The executive order
defined the prohibition, convicted the petitioner and immediately imposed punishment, which was carried out
forthright. The measure struck at once and pounced upon the petitioner without giving him a chance to be heard,
thus denying him the centuries-old guaranty of elementary fair play.

It has already been remarked that there are occasions when notice and hearing may be validly dispensed with
notwithstanding the usual requirement for these minimum guarantees of due process. It is also conceded that
summary action may be validly taken in administrative proceedings as procedural due process is not necessarily
judicial only. 20 In the exceptional cases accepted, however. there is a justification for the omission of the right to a
previous hearing, to wit, the immediacy of the problem sought to be corrected and the urgency of the need to
correct it.

In the case before us, there was no such pressure of time or 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 offense prohibited by the executive order should not have been proved first in a court of justice, with
the accused being accorded all the rights safeguarded to him under the Constitution. Considering that, as we held
in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in nature, the violation thereof should have been
 Page 61 of 122

pronounced not by the police only but by a court of 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 Commission may 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." (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
a fait 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.
 Page 62 of 122

DELEGATION OF POWERS

G.R. No. L-23825      December 24, 1965

EMMANUEL PELAEZ, petitioner,
vs.
THE AUDITOR GENERAL, respondent.

During the period from September 4 to October 29, 1964 the President of the Philippines, purporting to act pursuant
to Section 68 of the Revised Administrative Code, issued Executive Orders Nos. 93 to 121, 124 and 126 to 129;
creating thirty-three (33) municipalities enumerated in the margin. 1 Soon after the date last mentioned, or on
November 10, 1964 petitioner Emmanuel Pelaez, as Vice President of the Philippines and as taxpayer, instituted the
present special civil action, for a writ of prohibition with preliminary injunction, against the Auditor General, to
restrain him, as well as his representatives and agents, from passing in audit any expenditure of public funds in
implementation of said executive orders and/or any disbursement by said municipalities.

Petitioner alleges that said executive orders are null and void, upon the ground that said Section 68 has been
impliedly repealed by Republic Act No. 2370 and constitutes an undue delegation of legislative power. Respondent
maintains the contrary view and avers that the present action is premature and that not all proper parties — referring
to the officials of the new political subdivisions in question — have been impleaded. Subsequently, the mayors of
several municipalities adversely affected by the aforementioned executive orders — because the latter have taken
away from the former the barrios composing the new political subdivisions — intervened in the case. Moreover,
Attorneys Enrique M. Fernando and Emma Quisumbing-Fernando were allowed to and did appear as amici curiae.

The third paragraph of Section 3 of Republic Act No. 2370, reads:

Barrios shall not be created or their boundaries altered nor their names changed except under the provisions
of this Act or by Act of Congress.

Pursuant to the first two (2) paragraphs of the same Section 3:

All barrios existing at the time of the passage of this Act shall come under the provisions hereof.

Upon petition of a majority of the voters in the areas affected, a new barrio may be created or the name of
an existing one may be changed by the provincial board of the province, upon recommendation of the
council of the municipality or municipalities in which the proposed barrio is stipulated. The recommendation
 Page 63 of 122

of the municipal council shall be embodied in a resolution approved by at least two-thirds of the entire
membership of the said council: Provided, however, That no new barrio may be created if its population is
less than five hundred persons.

Hence, since January 1, 1960, when Republic Act No. 2370 became effective, barrios may "not be created or their
boundaries altered nor their names changed" except by Act of Congress or of the corresponding provincial board
"upon petition of a majority of the voters in the areas affected" and the "recommendation of the council of the
municipality or municipalities in which the proposed barrio is situated." Petitioner argues, accordingly: "If the
President, under this new law, cannot even create a barrio, can he create a municipality which is composed of
several barrios, since barrios are units of municipalities?"

Respondent answers in the affirmative, upon the theory that a new municipality can be created without creating new
barrios, such as, by placing old barrios under the jurisdiction of the new municipality. This theory overlooks,
however, the main import of the petitioner's argument, which is that the statutory denial of the presidential authority
to create a new barrio implies a negation of the bigger power to create municipalities, each of which consists of
several barrios. The cogency and force of this argument is too obvious to be denied or even questioned. Founded
upon logic and experience, it cannot be offset except by a clear manifestation of the intent of Congress to the
contrary, and no such manifestation, subsequent to the passage of Republic Act No. 2379, has been brought to our
attention.

Moreover, section 68 of the Revised Administrative Code, upon which the disputed executive orders are based,
provides:

The (Governor-General) President of the Philippines may by executive order define the boundary, or
boundaries, of any province, subprovince, municipality, [township] municipal district, or other political
subdivision, and increase or diminish the territory comprised therein, may divide any province into one or
more subprovinces, separate any political division other than a province, into such portions as may be
required, merge any of such subdivisions or portions with another, name any new subdivision so created,
and may change the seat of government within any subdivision to such place therein as the public welfare
may require: Provided, That the authorization of the (Philippine Legislature) Congress of the Philippines
shall first be obtained whenever the boundary of any province or subprovince is to be defined or any
province is to be divided into one or more subprovinces. When action by the (Governor-General) President
of the Philippines in accordance herewith makes necessary a change of the territory under the jurisdiction of
any administrative officer or any judicial officer, the (Governor-General) President of the Philippines, with the
recommendation and advice of the head of the Department having executive control of such officer, shall
redistrict the territory of the several officers affected and assign such officers to the new districts so formed.

Upon the changing of the limits of political divisions in pursuance of the foregoing authority, an equitable
distribution of the funds and obligations of the divisions thereby affected shall be made in such manner as
may be recommended by the (Insular Auditor) Auditor General and approved by the (Governor-General)
President of the Philippines.

Respondent alleges that the power of the President to create municipalities under this section does not amount to
an undue delegation of legislative power, relying upon Municipality of Cardona vs. Municipality of Binañgonan (36
Phil. 547), which, he claims, has settled it. Such claim is untenable, for said case involved, not the creation of a new
municipality, but a mere transfer of territory — from an already existing municipality (Cardona) to another
municipality (Binañgonan), likewise, existing at the time of and prior to said transfer (See Gov't of the P.I. ex rel.
Municipality of Cardona vs. Municipality, of Binañgonan [34 Phil. 518, 519-5201) — in consequence of the fixing and
definition, pursuant to Act No. 1748, of the common boundaries of two municipalities.

It is obvious, however, that, whereas the power to fix such common boundary, in order to avoid or settle conflicts of
jurisdiction between adjoining municipalities, may partake of an administrative nature — involving, as it does, the
adoption of means and ways to carry into effect the law creating said municipalities — the authority to create
municipal corporations is essentially legislative in nature. In the language of other courts, it is "strictly a legislative
function" (State ex rel. Higgins vs. Aicklen, 119 S. 425, January 2, 1959) or "solely and  exclusively the exercise
of legislative power" (Udall vs. Severn, May 29, 1938, 79 P. 2d 347-349). As the Supreme Court of Washington has
 Page 64 of 122

put it (Territory ex rel. Kelly vs. Stewart, February 13, 1890, 23 Pac. 405, 409), "municipal corporations are  purely
the creatures of statutes."

Although1a Congress may delegate to another branch of the Government the power to fill in the details in the
execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation
of powers, that said law: (a) be complete in itself — it must set forth therein the policy to be executed, carried out or
implemented by the delegate2 — and (b) fix a standard — the limits of which are sufficiently determinate or
determinable — to which the delegate must conform in the performance of his functions. 2a Indeed, without a
statutory declaration of policy, the delegate would in effect, make or formulate such policy, which is the essence of
every law; and, without the aforementioned standard, there would be no means to determine, with reasonable
certainty, whether the delegate has acted within or beyond the scope of his authority. 2b Hence, he could thereby
arrogate upon himself the power, not only to make the law, but, also — and this is worse — to unmake it, by
adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the
principle of separation of powers and the system of checks and balances, and, consequently, undermining the very
foundation of our Republican system.

Section 68 of the Revised Administrative Code does not meet these well settled requirements for a valid delegation
of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or
implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above
referred to. In this connection, we do not overlook the fact that, under the last clause of the first sentence of Section
68, the President:

... may change the seat of the government within any subdivision to such place therein as the public welfare
may require.

It is apparent, however, from the language of this clause, that the phrase "as the public welfare may require"
qualified, not the clauses preceding the one just quoted, but only the place to which the seat of the government may
be transferred. This fact becomes more apparent when we consider that said Section 68 was originally Section 1 of
Act No. 1748,3 which provided that, "whenever in the judgment of the Governor-General the public welfare requires,
he may, by executive order," effect the changes enumerated therein (as in said section 68), including the change of
the seat of the government "to such place ... as the public interest requires." The opening statement of said Section
1 of Act No. 1748 — which was not included in Section 68 of the Revised Administrative Code — governed the time
at which, or the conditions under which, the powers therein conferred could be exercised; whereas the last part of
the first sentence of said section referred exclusively to the place to which the seat of the government was to be
transferred.

At any rate, the conclusion would be the same, insofar as the case at bar is concerned, even if we assumed that the
phrase "as the public welfare may require," in said Section 68, qualifies all other clauses thereof. It is true that
in Calalang vs. Williams (70 Phil. 726) and People vs. Rosenthal (68 Phil. 328), this Court had upheld "public
welfare" and "public interest," respectively, as sufficient standards for a valid delegation of the authority to execute
the law. But, the doctrine laid down in these cases — as all judicial pronouncements — must be construed in
relation to the specific facts and issues involved therein, outside of which they do not constitute precedents and
have no binding effect.4 The law construed in the Calalang case conferred upon the Director of Public Works, with
the approval of the Secretary of Public Works and Communications, the power to issue rules and regulations
to promote safe transit upon national roads and streets. Upon the other hand, the Rosenthal case referred to the
authority of the Insular Treasurer, under Act No. 2581, to issue and cancel certificates or permits for the
sale of speculative securities. Both cases involved grants to administrative officers of powers related to the exercise
of their administrative functions, calling for the determination of questions of fact.

Such is not the nature of the powers dealt with in section 68. As above indicated, the creation of municipalities, is
not an administrative function, but one which is essentially and eminently legislative in character. The question of
whether or not "public interest" demands the exercise of such power is not one of fact. it is "purely a
legislative question "(Carolina-Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S.E. 2d. 310-313, 315-
318), or a political question (Udall vs. Severn, 79 P. 2d. 347-349). As the Supreme Court of Wisconsin has aptly
characterized it, "the question as to whether incorporation is for the best interest of the community in any case is
emphatically a question of public policy and statecraft" (In re Village of North Milwaukee, 67 N.W. 1033, 1035-1037).
 Page 65 of 122

For this reason, courts of justice have annulled, as constituting undue delegation of legislative powers, state laws
granting the judicial department, the power to determine whether certain territories should be annexed to a particular
municipality (Udall vs. Severn, supra, 258-359); or vesting in a Commission the right to determine the plan and
frame of government of proposed villages and what functions shall be exercised by the same, although the powers
and functions of the village are specifically limited by statute (In re Municipal Charters, 86 Atl. 307-308); or
conferring upon courts the authority to declare a given town or village incorporated, and designate its metes and
bounds, upon petition of a majority of the taxable inhabitants thereof, setting forth the area desired to be included in
such village (Territory ex rel Kelly vs. Stewart, 23 Pac. 405-409); or authorizing the territory of a town, containing a
given area and population, to be incorporated as a town, on certain steps being taken by the inhabitants thereof and
on certain determination by a court and subsequent vote of the inhabitants in favor thereof, insofar as the court is
allowed to determine whether the lands embraced in the petition "ought justly" to be included in the village, and
whether the interest of the inhabitants will be promoted by such incorporation, and to enlarge and diminish the
boundaries of the proposed village "as justice may require" (In re Villages of North Milwaukee, 67 N.W. 1035-1037);
or creating a Municipal Board of Control which shall determine whether or not the laying out, construction or
operation of a toll road is in the "public interest" and whether the requirements of the law had been complied with, in
which case the board shall enter an order creating a municipal corporation and fixing the name of the same
(Carolina-Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S.E. 2d. 310).

Insofar as the validity of a delegation of power by Congress to the President is concerned, the case of Schechter
Poultry Corporation vs. U.S. (79 L. Ed. 1570) is quite relevant to the one at bar. The Schechter case involved the
constitutionality of Section 3 of the National Industrial Recovery Act authorizing the President of the United States to
approve "codes of fair competition" submitted to him by one or more trade or industrial associations or corporations
which "impose no inequitable restrictions on admission to membership therein and are truly representative,"
provided that such codes are not designed "to promote monopolies or to eliminate or oppress small enterprises and
will not operate to discriminate against them, and will tend to effectuate the policy" of said Act. The Federal
Supreme Court held:

To summarize and conclude upon this point: Sec. 3 of the Recovery Act is without precedent. It supplies no
standards for any trade, industry or activity. It does not undertake to prescribe rules of conduct to be applied
to particular states of fact determined by appropriate administrative procedure. Instead of prescribing rules
of conduct, it authorizes the making of codes to prescribe them. For that legislative undertaking, Sec. 3 sets
up no standards, aside from the statement of the general aims of rehabilitation, correction and expansion
described in Sec. 1. In view of the scope of that broad declaration, and of the nature of the few restrictions
that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws
for the government of trade and industry throughout the country, is virtually unfettered. We think that the
code making authority thus conferred is an unconstitutional delegation of legislative power.

If the term "unfair competition" is so broad as to vest in the President a discretion that is "virtually unfettered." and,
consequently, tantamount to a delegation of legislative power, it is obvious that "public welfare," which has even a
broader connotation, leads to the same result. In fact, if the validity of the delegation of powers made in Section 68
were upheld, there would no longer be any legal impediment to a statutory grant of authority to the President to do
anything which, in his opinion, may be required by public welfare or public interest. Such grant of authority would be
a virtual abdication of the powers of Congress in favor of the Executive, and would bring about a total collapse of the
democratic system established by our Constitution, which it is the special duty and privilege of this Court to uphold.

It may not be amiss to note that the executive orders in question were issued after the legislative bills for the
creation of the municipalities involved in this case had failed to pass Congress. A better proof of the fact that the
issuance of said executive orders entails the exercise of purely legislative functions can hardly be given.

Again, Section 10 (1) of Article VII of our fundamental law ordains:

The President shall have control of all the executive departments, bureaus, or offices, exercise general
supervision over all local governments as may be provided by law, and take care that the laws be faithfully
executed.
 Page 66 of 122

The power of control under this provision implies the right of the President to interfere in the exercise of such
discretion as may be vested by law in the officers of the executive departments, bureaus, or offices of the national
government, as well as to act in lieu of such officers. This power is denied by the Constitution to the Executive,
insofar as local governments are concerned. With respect to the latter, the fundamental law permits him to wield no
more authority than that of checking whether said local governments or the officers thereof perform their duties as
provided by statutory enactments. Hence, the President cannot interfere with local governments, so long as the
same or its officers act Within the scope of their authority. He may not enact an ordinance which the municipal
council has failed or refused to pass, even if it had thereby violated a duty imposed thereto by law, although he may
see to it that the corresponding provincial officials take appropriate disciplinary action therefor. Neither may he vote,
set aside or annul an ordinance passed by said council within the scope of its jurisdiction, no matter how patently
unwise it may be. He may not even suspend an elective official of a regular municipality or take any disciplinary
action against him, except on appeal from a decision of the corresponding provincial board. 5

Upon the other hand if the President could create a municipality, he could, in effect, remove any of its officials, by
creating a new municipality and including therein the barrio in which the official concerned resides, for his office
would thereby become vacant. 6 Thus, by merely brandishing the power to create a new municipality (if he had it),
without actually creating it, he could compel local officials to submit to his dictation, thereby, in effect, exercising
over them the power of control denied to him by the Constitution.

Then, also, the power of control of the President over executive departments, bureaus or offices implies  no
more than the authority to assume directly the functions thereof or to interfere in the exercise of discretion by its
officials. Manifestly, such control does not include the authority either to abolish an executive department or bureau,
or to create a new one. As a consequence, the alleged power of the President to create municipal corporations
would necessarily connote the exercise by him of an authority even greater than that of control which he has over
the executive departments, bureaus or offices. In other words, Section 68 of the Revised Administrative Code does
not merely fail to comply with the constitutional mandate above quoted. Instead of giving the President less power
over local governments than that vested in him over the executive departments, bureaus or offices, it reverses the
process and does the exact opposite, by conferring upon him more power over municipal corporations than that
which he has over said executive departments, bureaus or offices.

In short, even if it did entail an undue delegation of legislative powers, as it certainly does, said Section 68, as part
of the Revised Administrative Code, approved on March 10, 1917, must be deemed repealed by the subsequent
adoption of the Constitution, in 1935, which is utterly incompatible and inconsistent with said statutory enactment. 7

There are only two (2) other points left for consideration, namely, respondent's claim (a) that "not all the proper
parties" — referring to the officers of the newly created municipalities — "have been impleaded in this case," and (b)
that "the present petition is premature."

As regards the first point, suffice it to say that the records do not show, and the parties do not claim, that the officers
of any of said municipalities have been appointed or elected and assumed office. At any rate, the Solicitor General,
who has appeared on behalf of respondent Auditor General, is the officer authorized by law "to act and represent
the Government of the Philippines, its offices and agents, in any official investigation, proceeding or matter requiring
the services of a lawyer" (Section 1661, Revised Administrative Code), and, in connection with the creation of the
aforementioned municipalities, which involves a political, not proprietary, function, said local officials, if any, are
mere agents or representatives of the national government. Their interest in the case at bar has, accordingly, been,
in effect, duly represented.8

With respect to the second point, respondent alleges that he has not as yet acted on any of the executive order & in
question and has not intimated how he would act in connection therewith. It is, however, a matter of common, public
knowledge, subject to judicial cognizance, that the President has, for many years, issued executive orders creating
municipal corporations and that the same have been organized and in actual operation, thus indicating, without
peradventure of doubt, that the expenditures incidental thereto have been sanctioned, approved or passed in audit
by the General Auditing Office and its officials. There is no reason to believe, therefore, that respondent would adopt
a different policy as regards the new municipalities involved in this case, in the absence of an allegation to such
effect, and none has been made by him.
 Page 67 of 122

WHEREFORE, the Executive Orders in question are hereby declared null and void ab initio and the respondent
permanently restrained from passing in audit any expenditure of public funds in implementation of said Executive
Orders or any disbursement by the municipalities above referred to. It is so ordered.

DELEGATION OF POWERS

G.R. No. 78164               July 31, 1987

TERESITA TABLARIN, MA, LUZ CIRIACO, MA NIMFA B. ROVIRA, EVANGELINA S. LABAO, in their behalf
and in behalf of applicants for admission into the Medical Colleges during the school year 1987-88 and
future years who have not taken or successfully hurdled tile National Medical Admission Test
(NMAT). petitioners,
vs.
THE HONORABLE JUDGE ANGELINA S. GUTIERREZ, Presiding Judge of Branch XXXVII of the Regional
Trial Court of the National Capital Judicial Region with seat at Manila, THE HONORABLE SECRETARY
LOURDES QUISUMBING, in her capacity as Chairman of the BOARD OF MEDICAL EDUCATION, and THE
CENTER FOR EDUCATIONAL MEASUREMENT (CEM), respondents.

The petitioners sought admission into colleges or schools of medicine for the school year 1987-1988. However, the
petitioners either did not take or did not successfully take the National Medical Admission Test (NMAT) required by
the Board of Medical Education, one of the public respondents, and administered by the private respondent, the
Center for Educational Measurement (CEM).

On 5 March 1987, the petitioners filed with the Regional Trial Court, National Capital Judicial Region, a Petition for
Declaratory Judgment and Prohibition with a prayer for Temporary Restraining Order and Preliminary Injunction.
The petitioners sought to enjoin the Secretary of Education, Culture and Sports, the Board of Medical Education and
the Center for Educational Measurement from enforcing Section 5 (a) and (f) of Republic Act No. 2382, as
amended, and MECS Order No. 52, series of 1985, dated 23 August 1985 and from requiring the taking and
passing of the NMAT as a condition for securing certificates of eligibility for admission, from proceeding with
accepting applications for taking the NMAT and from administering the NMAT as scheduled on 26 April 1987 and in
the future. After hearing on the petition for issuance of preliminary injunction, the trial court denied said petition on
20 April 1987. The NMAT was conducted and administered as previously scheduled.

Petitioners accordingly filed this Special Civil Action for certiorari with this Court to set aside the Order of the
respondent judge denying the petition for issuance of a writ of preliminary injunction.
 Page 68 of 122

Republic Act 2382, as amended by Republic Acts Nos. 4224 and 5946, known as the "Medical Act of 1959" defines
its basic objectives in the following manner:

Section 1. Objectives. — This Act provides for and shall govern (a) the standardization and regulation of
medical education (b) the examination for registration of physicians; and (c) the supervision, control and
regulation of the practice of medicine in the Philippines. (Underscoring supplied)

The statute, among other things, created a Board of Medical Education which is composed of (a) the Secretary of
Education, Culture and Sports or his duly authorized representative, as Chairman; (b) the Secretary of Health or his
duly authorized representative; (c) the Director of Higher Education or his duly authorized representative; (d) the
Chairman of the Medical Board or his duly authorized representative; (e) a representative of the Philippine Medical
Association; (f) the Dean of the College of Medicine, University of the Philippines; (g) a representative of the Council
of Deans of Philippine Medical Schools; and (h) a representative of the Association of Philippine Medical Colleges,
as members. The functions of the Board of Medical Education specified in Section 5 of the statute include the
following:

(a) To determine and prescribe equirements for admission into a recognized college of medicine;

(b) To determine and prescribe requirements for minimum physical facilities of colleges of medicine, to wit:
buildings, including hospitals, equipment and supplies, apparatus, instruments, appliances, laboratories, bed
capacity for instruction purposes, operating and delivery rooms, facilities for outpatient services, and others,
used for didactic and practical instruction in accordance with modern trends;

(c) To determine and prescribe the minimum number and minimum qualifications of teaching personnel,
including student-teachers ratio;

(d) To determine and prescribe the minimum required curriculum leading to the degree of Doctor of
Medicine;

(e) To authorize the implementation of experimental medical curriculum in a medical school that has
exceptional faculty and instrumental facilities. Such an experimental curriculum may prescribe admission
and graduation requirements other than those prescribed in this Act; Provided, That only exceptional
students shall be enrolled in the experimental curriculum;

(f) To accept applications for certification for admission to a medical school and keep a register of those
issued said certificate; and to collect from said applicants the amount of twenty-five pesos each which shall
accrue to the operating fund of the Board of Medical Education;

(g) To select, determine and approve hospitals or some departments of the hospitals for training which
comply with the minimum specific physical facilities as provided in subparagraph (b) hereof; and

(h) To promulgate and prescribe and enforce the necessary rules and regulations for the proper
implementation of the foregoing functions. (Emphasis supplied)

Section 7 prescribes certain minimum requirements for applicants to medical schools:

Admission requirements. — The medical college may admit any student who has not been convicted by any
court of competent jurisdiction of any offense involving moral turpitude and who presents (a) a record of
completion of a bachelor's degree in science or arts; (b) a certificate of eligibility for entrance to a medical
school from the Board of Medical Education; (c) a certificate of good moral character issued by two former
professors in the college of liberal arts; and (d) birth certificate. Nothing in this act shall be construed to
inhibit any college of medicine from establishing, in addition to the preceding, other entrance requirements
that may be deemed admissible.

x x x           x x x          x x x (Emphasis supplied)
 Page 69 of 122

MECS Order No. 52, s. 1985, issued by the then Minister of Education, Culture and Sports and dated 23 August
1985, established a uniform admission test called the National Medical Admission Test (NMAT) as an additional
requirement for issuance of a certificate of eligibility for admission into medical schools of the Philippines, beginning
with the school year 1986-1987. This Order goes on to state that:

2. The NMAT, an aptitude test, is considered as an instrument toward upgrading the selection of applicants
for admission into the medical schools and its calculated to improve the quality of medical education in the
country. The cutoff score for the successful applicants, based on the scores on the NMAT, shall be
determined every year by the Board of Medical Education after consultation with the Association of
Philippine Medical Colleges. The NMAT rating of each applicant, together with the other admission
requirements as presently called for under existing rules, shall serve as a basis for the issuance of the
prescribed certificate of elegibility for admission into the medical colleges.

3. Subject to the prior approval of the Board of Medical Education, each medical college may give other
tests for applicants who have been issued a corresponding certificate of eligibility for admission that will yield
information on other aspects of the applicant's personality to complement the information derived from the
NMAT.

x x x           x x x          x x x

8. No applicant shall be issued the requisite Certificate of Eligibility for Admission (CEA), or admitted for
enrollment as first year student in any medical college, beginning the school year, 1986-87, without the
required NMAT qualification as called for under this Order. (Underscoring supplied)

Pursuant to MECS Order No. 52, s. 1985, the private respondent Center conducted NMATs for entrance to medical
colleges during the school year 1986-1987. In December 1986 and in April 1987, respondent Center conducted the
NMATs for admission to medical colleges during the school year 1987.1988.1avvphi1

Petitioners raise the question of whether or not a writ of preliminary injunction may be issued to enjoin the
enforcement of Section 5 (a) and (f) of Republic Act No. 2382, as amended, and MECS Order No. 52, s. 1985,
pending resolution of the issue of constitutionality of the assailed statute and administrative order. We regard this
issue as entirely peripheral in nature. It scarcely needs documentation that a court would issue a writ of preliminary
injunction only when the petitioner assailing a statute or administrative order has made out a case of
unconstitutionality strong enough to overcome, in the mind of the judge, the presumption of constitutionality, aside
from showing a clear legal right to the remedy sought. The fundamental issue is of course the constitutionality of the
statute or order assailed.

1. The petitioners invoke a number of provisions of the 1987 Constitution which are, in their assertion, violated by
the continued implementation of Section 5 (a) and (f) of Republic Act 2381, as amended, and MECS Order No. 52,
s. 1985. The provisions invoked read as follows:

(a) Article 11, Section 11: "The state values the dignity of every human person and guarantees full respect
of human rights. "

(b) ArticleII, Section l3: "The State recognizes the vital role of the youth in nation building and shall promote
and protect their physical, moral, spiritual, intellectual and social well being. It shall inculcate in the youth
patriotism and nationalism, and encourage their involvement in public and civic affairs."

(c) Article II, Section 17: "The State shall give priority to education, science and technology, arts, culture and
sports to foster patriotism and nationalism, accelerate social progress and to promote total human liberation
and development. "

(d) Article XIV, Section l: "The State shall protect and promote the right of all citizens to quality education at
all levels and take appropriate steps to make such education accessible to all. "
 Page 70 of 122

(e) Article XIV, Section 5 (3): "Every citizen has a right to select a profession or course of study, subject to
fair, reasonable and equitable admission and academic requirements."

Article II of the 1987 Constitution sets forth in its second half certain "State policies" which the government is
enjoined to pursue and promote. The petitioners here have not seriously undertaken to demonstrate to what extent
or in what manner the statute and the administrative order they assail collide with the State policies embodied in
Sections 11, 13 and 17. They have not, in other words, discharged the burden of proof which lies upon them. This
burden is heavy enough where the constitutional provision invoked is relatively specific, rather than abstract, in
character and cast in behavioral or operational terms. That burden of proof becomes of necessity heavier where the
constitutional provision invoked is cast, as the second portion of Article II is cast, in language descriptive of basic
policies, or more precisely, of basic objectives of State policy and therefore highly generalized in tenor. The
petitioners have not made their case, even a prima facie case, and we are not compelled to speculate and to
imagine how the legislation and regulation impugned as unconstitutional could possibly offend the constitutional
provisions pointed to by the petitioners.

Turning to Article XIV, Section 1, of the 1987 Constitution, we note that once more petitioners have failed to
demonstrate that the statute and regulation they assail in fact clash with that provision. On the contrary we may
note-in anticipation of discussion infra — that the statute and the regulation which petitioners attack are in fact
designed to promote "quality education" at the level of professional schools. When one reads Section 1 in relation to
Section 5 (3) of Article XIV as one must one cannot but note that the latter phrase of Section 1 is not to be read with
absolute literalness. The State is not really enjoined to take appropriate steps to make quality education " accessible
to all who might for any number of reasons wish to enroll in a professional school but rather merely to make such
education accessible to all who qualify under "fair, reasonable and equitable admission and academic requirements.
"

2. In the trial court, petitioners had made the argument that Section 5 (a) and (f) of Republic Act No. 2382, as
amended, offend against the constitutional principle which forbids the undue delegation of legislative power, by
failing to establish the necessary standard to be followed by the delegate, the Board of Medical Education. The
general principle of non-delegation of legislative power, which both flows from the reinforces the more fundamental
rule of the separation and allocation of powers among the three great departments of government, 1 must be applied
with circumspection in respect of statutes which like the Medical Act of 1959, deal with subjects as obviously
complex and technical as medical education and the practice of medicine in our present day world. Mr. Justice
Laurel stressed this point 47 years ago in Pangasinan Transportation Co., Inc. vs. The Public Service Commission:2

One thing, however, is apparent in the development of the principle of separation of powers and that is that
the maxim of delegatus non potest delegare or delegate potestas non potest delegare, adopted this practice
(Delegibus et Consuetudiniis Anglia edited by G.E. Woodbine, Yale University Press, 1922, Vol. 2, p. 167)
but which is also recognized in principle in the Roman Law (d. 17.18.3) has been made to adapt itself to the
complexities of modern government, giving rise to the adoption, within certain limits of the principle of
"subordinate legislation," not only in the United States and England but in practically all modern
governments. (People vs. Rosenthal and Osmena [68 Phil. 318, 1939]. Accordingly, with the growing
complexity of modern life, the multiplication of the subjects of governmental regulation and the increased
difficulty of administering the laws, there is a constantly growing tendency toward the delegation of greater
power by the legislature, and toward the approval of the practice by the courts." 3

The standards set for subordinate legislation in the exercise of rule making authority by an administrative agency
like the Board of Medical Education are necessarily broad and highly abstract. As explained by then Mr. Justice
Fernando in Edu v. Ericta4 —

The standard may be either expressed or implied. If the former, the non-delegation objection is easily
met. The standard though does not have to be spelled out specifically. It could be implied from the policy
and purpose of the act considered as a whole. In the Reflector Law, clearly the legislative objective is public
safety. What is sought to be attained as in Calalang v. Williams is "safe transit upon the roads. 5

We believe and so hold that the necessary standards are set forth in Section 1 of the 1959 Medical Act: "the
standardization and regulation of medical education" and in Section 5 (a) and 7 of the same Act, the body of the
 Page 71 of 122

statute itself, and that these considered together are sufficient compliance with the requirements of the non-
delegation principle.

3. The petitioners also urge that the NMAT prescribed in MECS Order No. 52, s. 1985, is an "unfair, unreasonable
and inequitable requirement," which results in a denial of due process. Again, petitioners have failed to specify just
what factors or features of the NMAT render it "unfair" and "unreasonable" or "inequitable." They appear to suggest
that passing the NMAT is an unnecessary requirement when added on top of the admission requirements set out in
Section 7 of the Medical Act of 1959, and other admission requirements established by internal regulations of the
various medical schools, public or private. Petitioners arguments thus appear to relate to utility and wisdom or
desirability of the NMAT requirement. But constitutionality is essentially a question of power or authority: this Court
has neither commission or competence to pass upon questions of the desirability or wisdom or utility of legislation or
administrative regulation. Those questions must be address to the political departments of the government not to
the courts.

There is another reason why the petitioners' arguments must fail: the legislative and administrative provisions
impugned by them constitute, to the mind of the Court, a valid exercise of the police power of the state. The police
power, it is commonplace learning, is the pervasive and non-waivable power and authority of the sovereign to
secure and promote an the important interests and needs — in a word, the public order — of the general
community.6 An important component of that public order is the health and physical safety and well being of the
population, the securing of which no one can deny is a legitimate objective of governmental effort and regulation. 7

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

We believe that the government is entitled to prescribe an admission test like the NMAT as a means for achieving its
stated objective of "upgrading the selection of applicants into [our] medical schools" and of "improv[ing] the quality of
medical education in the country." Given the widespread use today of such admission tests in, for instance, medical
schools in the United States of America (the Medical College Admission Test [MCAT] 11 and quite probably in other
countries with far more developed educational resources than our own, and taking into account the failure or
inability of the petitioners to even attempt to prove otherwise, we are entitled to hold that the NMAT is reasonably
related to the securing of the ultimate end of legislation and regulation in this area. That end, it is useful to recall, is
the protection of the public from the potentially deadly effects of incompetence and ignorance in those who would
undertake to treat our bodies and minds for disease or trauma.

4. Petitioners have contended, finally, that MECS Order No. 52, s. 1985, is in conflict with the equal protection
clause of the Constitution. More specifically, petitioners assert that that portion of the MECS Order which provides
that
 Page 72 of 122

the cutoff score for the successful applicants, based on the scores on the NMAT, shall be determined every-
year by the Board of Medical 11 Education after consultation with the Association of Philippine Medical
Colleges. (Emphasis supplied)

infringes the requirements of equal protection. They assert, in other words, that students seeking admission during a
given school year, e.g., 1987-1988, when subjected to a different cutoff score than that established for an, e.g.,
earlier school year, are discriminated against and that this renders the MECS Order "arbitrary and capricious." The
force of this argument is more apparent than real. Different cutoff scores for different school years may be dictated
by differing conditions obtaining during those years. Thus, the appropriate cutoff score for a given year may be a
function of such factors as the number of students who have reached the cutoff score established the preceding
year; the number of places available in medical schools during the current year; the average score attained during
the current year; the level of difficulty of the test given during the current year, and so forth. To establish a
permanent and immutable cutoff score regardless of changes in circumstances from year to year, may wen result in
an unreasonable rigidity. The above language in MECS Order No. 52, far from being arbitrary or capricious, leaves
the Board of Medical Education with the measure of flexibility needed to meet circumstances as they change.

We conclude that prescribing the NMAT and requiring certain minimum scores therein as a condition for admission
to medical schools in the Philippines, do not constitute an unconstitutional imposition.

WHEREFORE, the Petition for certiorari is DISMISSED and the Order of the respondent trial court denying the
petition for a writ of preliminary injunction is AFFIRMED. Costs against petitioners.

SO ORDERED.

DELEGATION OF POWERS

G.R. No. 171396             May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL
RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER
F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY
EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO
SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO
LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Respondents.

All powers need some restraint; practical adjustments rather than rigid formula are necessary. 1 Superior strength –
the use of force – cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding the
constitutional rights of the citizens, specifically their liberty.

Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: "In cases involving
liberty, the scales of justice should weigh heavily against government and in favor of the poor, the
oppressed, the marginalized, the dispossessed and the weak." Laws and actions that restrict fundamental rights
come to the courts "with a heavy presumption against their constitutional validity." 2

These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential Proclamation
No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave
abuse of discretion. Petitioners contend that respondent officials of the Government, in their professed efforts to
defend and preserve democratic institutions, are actually trampling upon the very freedom guaranteed and
protected by the Constitution. Hence, such issuances are void for being unconstitutional.
 Page 73 of 122

Once again, the Court is faced with an age-old but persistently modern problem. How does the Constitution of a free
people combine the degree of liberty, without which, law becomes tyranny, with the degree of law, without which,
liberty becomes license?3

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President Arroyo
issued PP 1017 declaring a state of national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-
Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the
Philippine Constitution which states that: "The President. . . whenever it becomes necessary, . . . may call out (the)
armed forces to prevent or suppress. . .rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to
enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally
or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State
of National Emergency.

She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of
the extreme Left represented by the NDF-CPP-NPA and the extreme Right, represented by military
adventurists – the historical enemies of the democratic Philippine State – who are now in a tactical alliance
and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly constituted
Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the
national media;

WHEREAS, this series of actions is hurting the Philippine State – by obstructing governance including hindering
the growth of the economy and sabotaging the people’s confidence in government and their faith in the
future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the opening
to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the democratic
institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute
a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:

WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the
extreme Left, represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists - the
historical enemies of the democratic Philippine State – and who are now in a tactical alliance and engaged in a
concerted and systematic conspiracy, over a broad front, to bring down the duly-constituted Government elected in
May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down our republican government;
 Page 74 of 122

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national
media;

WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including hindering the
growth of the economy and sabotaging the people’s confidence in the government and their faith in the future of this
country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening to
intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic
institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a
clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the
Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the
Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts of terrorism
and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP
and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these
petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which reads:

WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution, Proclamation No. 1017
dated February 24, 2006, was issued declaring a state of national emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on the basis of
Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), were
directed to maintain law and order throughout the Philippines, prevent and suppress all form of lawless violence as
well as any act of rebellion and to undertake such action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless violence and
rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of

the powers vested in me by law, hereby declare that the state of national emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate cause
behind the executive issuances was the conspiracy among some military officers, leftist insurgents of the New
People’s Army (NPA), and some members of the political opposition in a plot to unseat or assassinate President
Arroyo.4 They considered the aim to oust or assassinate the President and take-over the reigns of government as a
clear and present danger.
 Page 75 of 122

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the issuance of
PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners’ counsels.

The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the President
in determining the necessity of calling out the armed forces. He emphasized that none of the petitioners has shown
that PP 1017 was without factual bases. While he explained that it is not respondents’ task to state the facts behind
the questioned Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation of the
issues.

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San Juan and
Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in
Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and to elude arrest at all costs. They
called upon the people to "show and proclaim our displeasure at the sham regime. Let us demonstrate our disgust,
not only by going to the streets in protest, but also by wearing red bands on our left arms." 5

On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which detailed plans for
bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to
assassinate selected targets including some cabinet members and President Arroyo herself. 6 Upon the advice of her
security, President Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the
celebration, a bomb was found and detonated at the PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found in his
possession were two (2) flash disks containing minutes of the meetings between members of the Magdalo Group
and the National People’s Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of
subversive documents.7 Prior to his arrest, Lt. San Juan announced through DZRH that the "Magdalo’s D-Day
would be on February 24, 2006, the 20th Anniversary of Edsa I."

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special Action
Force were planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino Franco, Jr.
to "disavow" any defection. The latter promptly obeyed and issued a public statement: "All SAF units are under the
effective control of responsible and trustworthy officers with proven integrity and unquestionable loyalty."

On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquino’s brother,
businessmen and mid-level government officials plotted moves to bring down the Arroyo administration. Nelly
Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S. government official
about his group’s plans if President Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon
identified him as B/Gen. Danilo Lim, Commander of the Army’s elite Scout Ranger. Lim said "it was all systems go
for the planned movement against Arroyo."8

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of Staff of
the Armed Forces of the Philippines (AFP), that a huge number of soldiers would join the rallies to provide a critical
mass and armed component to the Anti-Arroyo protests to be held on February 24, 2005. According to these two (2)
officers, there was no way they could possibly stop the soldiers because they too, were breaking the chain of
command to join the forces foist to unseat the President. However, Gen. Senga has remained faithful to his
Commander-in-Chief and to the chain of command. He immediately took custody of B/Gen. Lim and directed Col.
Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the police
establishments in order to forge alliances with its members and key officials. NPA spokesman Gregorio "Ka Roger"
Rosal declared: "The Communist Party and revolutionary movement and the entire people look forward to the
possibility in the coming year of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it
to weaken and unable to rule that it will not take much longer to end it."9

On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central Mindanao,
publicly announced: "Anti-Arroyo groups within the military and police are growing rapidly, hastened by the
 Page 76 of 122

economic difficulties suffered by the families of AFP officers and enlisted personnel who undertake counter-
insurgency operations in the field." He claimed that with the forces of the national democratic movement, the anti-
Arroyo conservative political parties, coalitions, plus the groups that have been reinforcing since June 2005, it is
probable that the President’s ouster is nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and Bataan
was also considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an
army outpost in Benguet resulting in the death of three (3) soldiers. And also the directive of the Communist Party of
the Philippines ordering its front organizations to join 5,000 Metro Manila radicals and 25,000 more from the
provinces in mass protests.10

By midnight of February 23, 2006, the President convened her security advisers and several cabinet members to
assess the gravity of the fermenting peace and order situation. She directed both the AFP and the PNP to account
for all their men and ensure that the chain of command remains solid and undivided. To protect the young students
from any possible trouble that might break loose on the streets, the President suspended classes in all levels in the
entire National Capital Region.

For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs and activities related to the 20th
anniversary celebration of Edsa People Power I; and revoked the permits to hold rallies issued earlier by the local
governments. Justice Secretary Raul Gonzales stated that political rallies, which to the President’s mind were
organized for purposes of destabilization, are cancelled.Presidential Chief of Staff Michael Defensor announced that
"warrantless arrests and take-over of facilities, including media, can already be implemented."11

Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters
(members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-
KMU]), marched from various parts of Metro Manila with the intention of converging at the EDSA shrine. Those who
were already near the EDSA site were violently dispersed by huge clusters of anti-riot police. The well-trained
policemen used truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the marching
groups, and scatter the massed participants. The same police action was used against the protesters marching
forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening, hundreds of riot
policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati
City.12

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their
assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S. David, a
professor at the University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald
Llamas, president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection
Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the  Daily Tribune offices in Manila. The
raiding team confiscated news stories by reporters, documents, pictures, and mock-ups of the Saturday issue.
Policemen from Camp Crame in Quezon City were stationed inside the editorial and business offices of the
newspaper; while policemen from the Manila Police District were stationed outside the building. 13

A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of
another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante.

The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a ‘strong presence,’ to tell
media outlets not to connive or do anything that would help the rebels in bringing down this government."  The PNP
warned that it would take over any media organization that would not follow  "standards set by the government
during the state of national emergency." Director General Lomibao stated that "if they do not follow the standards –
 Page 77 of 122

and the standards are - if they would contribute to instability in the government, or if they do not subscribe to what is
in General Order No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’" National Telecommunications’
Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government for the duration
of the state of national emergency. He asked for "balanced reporting" from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that his agency will not hesitate to recommend
the closure of any broadcast outfit that violates rules set out for media coverage when the national security is
threatened.14

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party
and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a warrant
for his arrest dated 1985. Beltran’s lawyer explained that the warrant, which stemmed from a case of inciting to
rebellion filed during the Marcos regime, had long been quashed. Beltran, however, is not a party in any of these
petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted
because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by
the police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public forum at
the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into custody.

Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was arrested while with his
wife and golfmates at the Orchard Golf and Country Club in Dasmariñas, Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan

Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza. Bayan Muna Representative Josel
Virador was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House
of Representatives where the "Batasan 5" decided to stay indefinitely.

Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur Ocampo,  et
al., are not being raised in these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has ceased to
exist.

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were filed with
this Court against the above-named respondents. Three (3) of these petitions impleaded President Arroyo as
respondent.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches on
the emergency powers of Congress; (2) itis a subterfuge to avoid the constitutional requirements for the imposition
of martial law; and (3) it violates the constitutional guarantees of freedom of the press, of speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the CIDG’s act
of raiding the Daily Tribune offices as a clear case of "censorship" or "prior restraint." They also claimed that the
term "emergency" refers only to tsunami, typhoon, hurricane and similar occurrences, hence, there is "absolutely no
emergency" that warrants the issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one (21) other
members of the House of Representatives, including Representatives Satur Ocampo, Rafael Mariano, Teodoro
Casiño, Liza Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute "usurpation of
legislative powers"; "violation of freedom of expression" and "a declaration of martial law." They alleged that
President Arroyo "gravely abused her discretion in calling out the armed forces without clear and verifiable factual
basis of the possibility of lawless violence and a showing that there is necessity to do so."
 Page 78 of 122

In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O. No. 5 are
unconstitutional because (1) they arrogate unto President Arroyo the power to enact laws and decrees; (2) their
issuance was without factual basis; and (3) they violate freedom of expression and the right of the people to
peaceably assemble to redress their grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are
unconstitutional because they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article
III, (c) Section 2319 of Article VI, and (d) Section 1720 of Article XII of the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an "arbitrary and unlawful
exercise by the President of her Martial Law powers." And assuming that PP 1017 is not really a declaration of
Martial Law, petitioners argued that "it amounts to an exercise by the President of emergency powers without
congressional approval." In addition, petitioners asserted that PP 1017 "goes beyond the nature and function of a
proclamation as defined under the Revised Administrative Code."

And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No. 5 are
"unconstitutional for being violative of the freedom of expression, including its cognate rights such as freedom of the
press and the right to access to information on matters of public concern, all guaranteed under Article III, Section 4
of the 1987 Constitution." In this regard, she stated that these issuances prevented her from fully prosecuting her
election protest pending before the Presidential Electoral Tribunal.

In respondents’ Consolidated Comment, the Solicitor General countered that: first, the petitions should be dismissed
for being moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485
(Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead
President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not
violate the people’s right to free expression and redress of grievances.

On March 7, 2006, the Court conducted oral arguments and heard the parties on the above interlocking issues
which may be summarized as follows:

A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et

al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing.

B. SUBSTANTIVE:

1) Whetherthe Supreme Court can review the factual bases of PP 1017.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge

b. Constitutional Basis

c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

 Page 79 of 122

One of the greatest contributions of the American system to this country is the concept of judicial review enunciated
in Marbury v. Madison.21 This concept rests on the extraordinary simple foundation --

The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political authority. It
confers limited powers on the national government. x x x If the government consciously or unconsciously
oversteps these limitations there must be some authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve inviolate the will of the people as expressed in
the Constitution. This power the courts exercise. This is the beginning and the end of the theory of judicial
review.22

But the power of judicial review does not repose upon the courts a "self-starting capacity." 23 Courts may exercise
such power only when the following requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of constitutionality; third, the constitutional question must
be raised at the earliest opportunity; and fourth, the decision of the constitutional question must be necessary to the
determination of the case itself.24

Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion thereon.

An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial
resolution. It is "definite and concrete, touching the legal relations of parties having adverse legal interest;" a real
and substantial controversy admitting of specific relief. 25 The Solicitor General refutes the existence of such actual
case or controversy, contending that the present petitions were rendered "moot and academic" by President
Arroyo’s issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening
events,26 so that a declaration thereon would be of no practical use or value. 27 Generally, courts decline jurisdiction
over such case28 or dismiss it on ground of mootness.29

The Court holds that President Arroyo’s issuance of PP 1021 did not render the present petitions moot and
academic. During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners,
committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify
these alleged illegal acts? These are the vital issues that must be resolved in the present petitions. It must be
stressed that "an unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative."30

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a
case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the
Constitution;31 second, the exceptional character of the situation and the paramount public interest is
involved;32 third, when constitutional issue raised requires formulation of controlling principles to guide the bench,
the bar, and the public;33 and fourth, the case is capable of repetition yet evading review. 34

All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction over the instant
petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no
question that the issues being raised affect the public’s interest, involving as they do the people’s basic rights to
freedom of expression, of assembly and of the press. Moreover, the Court has the duty to formulate guiding and
controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the
bar, and in the present petitions, the military and the police, on the extent of the protection given by constitutional
guarantees.35 And lastly, respondents’ contested actions are capable of repetition. Certainly, the petitions are
subject to judicial review.

In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V. Panganiban’s
Separate Opinion in Sanlakas v. Executive Secretary.36 However, they failed to take into account the Chief Justice’s
very statement that an otherwise "moot" case may still be decided "provided the party raising it in a proper case has
 Page 80 of 122

been and/or continues to be prejudiced or damaged as a direct result of its issuance." The present case falls right
within this exception to the mootness rule pointed out by the Chief Justice.

II- Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more
than passing discussion on legal standing or locus standi.

Locus standi is defined as "a right of appearance in a court of justice on a given question." 37 In private suits,
standing is governed by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that "every action must be prosecuted or defended in the name of the real
party in interest." Accordingly, the "real-party-in interest" is "the party who stands to be benefited or injured by
the judgment in the suit or the party entitled to the avails of the suit."38 Succinctly put, the plaintiff’s standing is
based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right" in
assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person
who is affected no differently from any other person. He could be suing as a "stranger," or in the category of a
"citizen," or ‘taxpayer." In either case, he has to adequately show that he is entitled to seek judicial protection. In
other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief
as a "citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The distinction
was first laid down in Beauchamp v. Silk,39 where it was held that the plaintiff in a taxpayer’s suit is in a different
category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected by the expenditure of public
funds, while in the latter, he is but the mere instrument of the public concern.  As held by the New York
Supreme Court in People ex rel Case v. Collins:40 "In matter of mere public right, however…the people are the
real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a public offence
be properly pursued and punished, and that a public grievance be remedied." With respect to taxpayer’s
suits, Terr v. Jordan41 held that "the right of a citizen and a taxpayer to maintain an action in courts to restrain
the unlawful use of public funds to his injury cannot be denied."

However, to prevent just about any person from seeking judicial interference in any official policy or act with which
he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United
State Supreme Court laid down the more stringent "direct injury" test in Ex Parte Levitt,42 later reaffirmed
in Tileston v. Ullman.43 The same Court ruled that for a private individual to invoke the judicial power to determine
the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result
of that action, and it is not sufficient that he has a general interest common to all members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that the person who
impugns the validity of a statute must have "a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate,45 Manila Race Horse Trainers’ Association v. De la Fuente,46 Pascual v.
Secretary of Public Works47 and Anti-Chinese League of the Philippines v. Felix.48

However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the
exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,49 where the
"transcendental importance" of the cases prompted the Court to act liberally. Such liberality was neither a rarity
nor accidental. In Aquino v. Comelec,50 this Court resolved to pass upon the issues raised due to the "far-reaching
implications" of the petition notwithstanding its categorical statement that petitioner therein had no personality to
file the suit. Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws,
regulations and rulings.51
 Page 81 of 122

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have been
allowed to sue under the principle of "transcendental importance." Pertinent are the following cases:

(1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of the constitutional
right to information and the equitable diffusion of natural resources are matters of transcendental
importance which clothe the petitioner with locus standi;

(2) Bagong Alyansang Makabayan v. Zamora, 53 wherein the Court held that "given the transcendental
importance of the issues involved, the Court may relax the standing requirements and allow the suit
to prosper despite the lack of direct injury to the parties seeking judicial review" of the Visiting Forces
Agreement;

(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file suit in their capacity
as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of Congress’ taxing or spending
powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora, 55that in cases of
transcendental importance, the cases must be settled promptly and definitely and standing
requirements may be relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters,
concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are
met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;

(4) for concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon their
prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal standing.

In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a people’s organization does not give
it the requisite personality to question the validity of the on-line lottery contract, more so where it does not raise any
issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public funds are being
misused. Nor can it sue as a concerned citizen as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court reiterated the "direct
injury" test with respect to concerned citizens’ cases involving constitutional issues. It held that "there must be a
showing that the citizen personally suffered some actual or threatened injury arising from the alleged illegal official
act."

In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a
real party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or supporters.

In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members of Congress have
standing to sue, as they claim that the President’s declaration of a state of rebellion is a usurpation of the
emergency powers of Congress, thus impairing their legislative powers. As to petitioners Sanlakas, Partido
Manggagawa, and Social Justice Society, the Court declared them to be devoid of standing, equating them with the
LDP in Lacson.
 Page 82 of 122

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The same holds
true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged "direct injury"
resulting from "illegal arrest" and "unlawful search" committed by police operatives pursuant to PP 1017. Rightly so,
the Solicitor General does not question their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers. They also
raised the issue of whether or not the concurrence of Congress is necessary whenever the alarming powers incident
to Martial Law are used. Moreover, it is in the interest of justice that those affected by PP 1017 can be represented
by their Congressmen in bringing to the attention of the Court the alleged violations of their basic rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,60 Kapatiran Ng Mga
Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small Landowners in the Philippines, Inc. v.
Secretary of Agrarian Reform,62 Basco v. Philippine Amusement and Gaming Corporation, 63 and Tañada v.
Tuvera,64 that when the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest
in the execution of the laws.

In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly may be
deemed sufficient to give it legal standing. Organizations may be granted standing to assert the rights of their
members.65 We take judicial notice of the announcement by the Office of the President banning all rallies and
canceling all permits for public assemblies following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the Philippines (IBP)
have no legal standing, having failed to allege any direct or potential injury which the IBP as an institution or its
members may suffer as a consequence of the issuance of PP No. 1017 and G.O. No. 5. In  Integrated Bar of the
Philippines v. Zamora,66 the Court held that the mere invocation by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an
interest which is shared by other groups and the whole citizenry. However, in view of the transcendental importance
of the issue, this Court declares that petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are no
allegations of illegal disbursement of public funds. The fact that she is a former Senator is of no consequence. She
can no longer sue as a legislator on the allegation that her prerogatives as a lawmaker have been impaired by PP
1017 and G.O. No. 5. Her claim that she is a media personality will not likewise aid her because there was no
showing that the enforcement of these issuances prevented her from pursuing her occupation. Her submission that
she has pending electoral protest before the Presidential Electoral Tribunal is likewise of no relevance. She has not
sufficiently shown that PP 1017 will affect the proceedings or result of her case. But considering once more the
transcendental importance of the issue involved, this Court may relax the standing rules.

It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper
exercise of judicial power. This is the underlying legal tenet of the "liberality doctrine" on legal standing. It cannot be
doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to
the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated breath the
ruling of this Court on this very critical matter. The petitions thus call for the application of the "transcendental
importance" doctrine, a relaxation of the standing requirements for the petitioners in the "PP 1017
cases."1avvphil.net

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President,
during his tenure of office or actual incumbency, 67 may not be sued in any civil or criminal case, and there is no
need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the
Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he
be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of
 Page 83 of 122

his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch
and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon
him by the Constitution necessarily impairs the operation of the Government. However, this does not mean that the
President is not accountable to anyone. Like any other official, he remains accountable to the people 68 but he may
be removed from office only in the mode provided by law and that is by impeachment. 69

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for President Arroyo to issue
such Proclamation.

The issue of whether the Court may review the factual bases of the President’s exercise of his Commander-in-Chief
power has reached its distilled point - from the indulgent days of Barcelon v. Baker70 and Montenegro v.
Castaneda71 to the volatile era of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-
of-war always cuts across the line defining "political questions," particularly those questions "in regard to which full
discretionary authority has been delegated to the legislative or executive branch of the government." 75 Barcelon and
Montenegro were in unison in declaring that the authority to decide whether an exigency has arisen belongs to
the President and his decision is final and conclusive on the courts. Lansang took the opposite view. There,
the members of the Court were unanimous in the conviction that the Court has the authority to inquire into the
existence of factual bases in order to determine their constitutional sufficiency. From the principle of separation of
powers, it shifted the focus to the system of checks and balances, "under which the President is supreme, x
x x only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial Department, which in this respect, is, in
turn, constitutionally supreme."76 In 1973, the unanimous Court of Lansang was divided in Aquino v.
Enrile.77 There, the Court was almost evenly divided on the issue of whether the validity of the imposition of Martial
Law is a political or justiciable question. 78 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It
declared that there is a need to re-examine the latter case, ratiocinating that "in times of war or national
emergency, the President must be given absolute control for the very life of the nation and the government
is in great peril. The President, it intoned, is answerable only to his conscience, the People, and God."79

The Integrated Bar of the Philippines v. Zamora 80 -- a recent case most pertinent to these cases at bar -- echoed a
principle similar to Lansang. While the Court considered the President’s "calling-out" power as a discretionary power
solely vested in his wisdom, it stressed that "this does not prevent an examination of whether such power was
exercised within permissible constitutional limits or whether it was exercised in a manner constituting
grave abuse of discretion."This ruling is mainly a result of the Court’s reliance on Section 1, Article VIII of 1987
Constitution which fortifies the authority of the courts to determine in an appropriate action the validity of the acts of
the political departments. Under the new definition of judicial power, the courts are authorized not only "to settle
actual controversies involving rights which are legally demandable and enforceable," but also "to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the government." The latter part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before a forbidden territory, to wit, the
discretion of the political departments of the government. 81 It speaks of judicial prerogative not only in terms
of power but also of duty.82

As to how the Court may inquire into the President’s exercise of power, Lansang adopted the test that "judicial
inquiry can go no further than to satisfy the Court not that the President’s decision is correct," but that "the President
did not act arbitrarily." Thus, the standard laid down is not correctness, but arbitrariness. 83 In Integrated Bar of the
Philippines, this Court further ruled that "it is incumbent upon the petitioner to show that the President’s
decision is totally bereft of factual basis" and that if he fails, by way of proof, to support his assertion, then "this
Court cannot undertake an independent investigation beyond the pleadings."

Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing PP 1017, is totally
bereft of factual basis. A reading of the Solicitor General’s Consolidated Comment and Memorandum shows a
detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the
 Page 84 of 122

records. Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the
defections in the military, particularly in the Philippine Marines, and the reproving statements from the communist
leaders. There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army showing
the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus,
absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for
military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do
nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise
of such power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of emergency. A glimpse at the
various political theories relating to this subject provides an adequate backdrop for our ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative to cope
with the problem of emergency. In times of danger to the nation, positive law enacted by the legislature might be
inadequate or even a fatal obstacle to the promptness of action necessary to avert catastrophe. In these situations,
the Crown retained a prerogative "power to act according to discretion for the public good, without the
proscription of the law and sometimes even against it."84 But Locke recognized that this moral restraint might
not suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to the prerogative and
how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that "the people have no other
remedy in this, as in all other cases where they have no judge on earth, but to appeal to Heaven."85

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of government
in time of emergency. According to him:

The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in certain cases,
render them disastrous and make them bring about, at a time of crisis, the ruin of the State…

It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend their
operation. Even Sparta allowed its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the method is to
nominate a supreme lawyer, who shall silence all the laws and suspend for a moment the sovereign authority. In
such a case, there is no doubt about the general will, and it clear that the people’s first intention is that the State
shall not perish.86

Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he termed it. For him, it
would more likely be cheapened by "indiscreet use." He was unwilling to rely upon an "appeal to heaven." Instead,
he relied upon a tenure of office of prescribed duration to avoid perpetuation of the dictatorship. 87

John Stuart Mill concluded his ardent defense of representative government: "I am far from condemning, in cases
of extreme necessity, the assumption of absolute power in the form of a temporary dictatorship."88

Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of limited government,
furnished an ironic contrast to the Lockean theory of prerogative. He recognized and attempted to bridge this chasm
in democratic political theory, thus:

Now, in a well-ordered society, it should never be necessary to resort to extra –constitutional measures; for although
they may for a time be beneficial, yet the precedent is pernicious, for if the practice is once established for good
objects, they will in a little while be disregarded under that pretext but for evil purposes. Thus, no republic will ever
 Page 85 of 122

be perfect if she has not by law provided for everything, having a remedy for every emergency and fixed rules for
applying it.89

Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into the constitution a regularized
system of standby emergency powers to be invoked with suitable checks and controls in time of national danger. He
attempted forthrightly to meet the problem of combining a capacious reserve of power and speed and vigor in its
application in time of emergency, with effective constitutional restraints. 90

Contemporary political theorists, addressing themselves to the problem of response to emergency by constitutional
democracies, have employed the doctrine of constitutional dictatorship. 91 Frederick M. Watkins saw "no reason why
absolutism should not be used as a means for the defense of liberal institutions," provided it "serves to
protect established institutions from the danger of permanent injury in a period of temporary emergency
and is followed by a prompt return to the previous forms of political life."92 He recognized the two (2) key
elements of the problem of emergency governance, as well as all constitutional governance: increasing
administrative powers of the executive, while at the same time "imposing limitation upon that
power."93 Watkins placed his real faith in a scheme of constitutional dictatorship. These are the conditions of
success of such a dictatorship: "The period of dictatorship must be relatively short…Dictatorship should
always be strictly legitimate in character…Final authority to determine the need for dictatorship in any given
case must never rest with the dictator himself…"94 and the objective of such an emergency dictatorship should
be "strict political conservatism."

Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It is a problem of concentrating power – in a
government where power has consciously been divided – to cope with… situations of unprecedented magnitude
and gravity. There must be a broad grant of powers, subject to equally strong limitations as to who shall exercise
such powers, when, for how long, and to what end." 96 Friedrich, too, offered criteria for judging the adequacy of any
of scheme of emergency powers, to wit: "The emergency executive must be appointed by constitutional
means – i.e., he must be legitimate; he should not enjoy power to determine the existence of an emergency;
emergency powers should be exercised under a strict time limitation; and last, the objective of emergency
action must be the defense of the constitutional order."97

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain, France,
Weimar, Germany and the United States, reverted to a description of a scheme of "constitutional dictatorship" as
solution to the vexing problems presented by emergency. 98 Like Watkins and Friedrich, he stated a priori the
conditions of success of the "constitutional dictatorship," thus:

1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is
necessary or even indispensable to the preservation of the State and its constitutional order…

2) …the decision to institute a constitutional dictatorship should never be in the hands of the man or men
who will constitute the dictator…

3) No government should initiate a constitutional dictatorship without making specific provisions for its
termination…

4) …all uses of emergency powers and all readjustments in the organization of the government should be
effected in pursuit of constitutional or legal requirements…

5) … no dictatorial institution should be adopted, no right invaded, no regular procedure altered any more
than is absolutely necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a constitutional dictatorship should never be permanent
in character or effect…

7) The dictatorship should be carried on by persons representative of every part of the citizenry interested in
the defense of the existing constitutional order. . .
 Page 86 of 122

8) Ultimate responsibility should be maintained for every action taken under a constitutional dictatorship. . .

9) The decision to terminate a constitutional dictatorship, like the decision to institute one should never be in
the hands of the man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was
instituted…

11) …the termination of the crisis must be followed by a complete return as possible to the political and
governmental conditions existing prior to the initiation of the constitutional dictatorship… 99

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did Watkins.
He would secure to Congress final responsibility for declaring the existence or termination of an emergency, and he
places great faith in the effectiveness of congressional investigating committees. 100

Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in saying
that, "the suggestion that democracies surrender the control of government to an authoritarian ruler in time
of grave danger to the nation is not based upon sound constitutional theory." To appraise emergency power
in terms of constitutional dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not
whether the term "dictator" is used in its normal sense (as applied to authoritarian rulers) or is employed to embrace
all chief executives administering emergency powers. However used, "constitutional dictatorship" cannot be
divorced from the implication of suspension of the processes of constitutionalism. Thus, they favored instead the
"concept of constitutionalism" articulated by Charles H. McIlwain:

A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers, and which
is consistent with the findings of this study, is that formulated by Charles H. McIlwain. While it does not by any
means necessarily exclude some indeterminate limitations upon the substantive powers of government, full
emphasis is placed upon procedural limitations, and political responsibility. McIlwain clearly recognized the
need to repose adequate power in government. And in discussing the meaning of constitutionalism, he insisted that
the historical and proper test of constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the enfeebling of government by an
exaggerated emphasis upon separation of powers and substantive limitations on governmental power. He found
that the really effective checks on despotism have consisted not in the weakening of government but, but rather in
the limiting of it; between which there is a great and very significant difference. In associating constitutionalism
with "limited" as distinguished from "weak" government, McIlwain meant government limited to the orderly
procedure of law as opposed to the processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a
complete political responsibility of government to the governed.101

In the final analysis, the various approaches to emergency of the above political theorists –- from Lock’s "theory of
prerogative," to Watkins’ doctrine of "constitutional dictatorship" and, eventually, to McIlwain’s "principle of
constitutionalism" --- ultimately aim to solve one real problem in emergency governance, i.e., that of allotting
increasing areas of discretionary power to the Chief Executive, while insuring that such powers will be
exercised with a sense of political responsibility and under effective limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the 1986
Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a government in the concept of
Justice Jackson’s "balanced power structure." 102 Executive, legislative, and judicial powers are dispersed to the
President, the Congress, and the Supreme Court, respectively. Each is supreme within its own sphere. But none
has the monopoly of power in times of emergency. Each branch is given a role to serve as limitation or
check upon the other. This system does not weaken the President, it just limits his power, using the language of
McIlwain. In other words, in times of emergency, our Constitution reasonably demands that we repose a certain
amount of faith in the basic integrity and wisdom of the Chief Executive but, at the same time,  it obliges him to
operate within carefully prescribed procedural limitations.
 Page 87 of 122

a. "Facial Challenge"

Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its enforcement
encroached on both unprotected and protected rights under Section 4, Article III of the Constitution and sent a
"chilling effect" to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their faces" statutes
in free speech cases, also known under the American Law as First Amendment cases.103

A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is
actually a call upon the AFP to prevent or suppress all forms of lawless violence. In United States v. Salerno,104 the
US Supreme Court held that "we have not recognized an ‘overbreadth’ doctrine outside the limited context of
the First Amendment" (freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects legitimate state
interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct." Undoubtedly,
lawless violence, insurrection and rebellion are considered "harmful" and "constitutionally unprotected conduct."
In Broadrick v. Oklahoma,105 it was held:

It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on its face and when
‘such summary action’ is inappropriate. But the plain import of our cases is, at the very least, that facial
overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited
one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction
moves from ‘pure speech’ toward conduct and that conduct –even if expressive – falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls
over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to
regulate only "spoken words" and again, that "overbreadth claims, if entertained at all, have been curtailed
when invoked against ordinary criminal laws that are sought to be applied to protected conduct."106 Here, the
incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly
subject to state regulation.

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used "sparingly and only
as a last resort," and is "generally disfavored;"107 The reason for this is obvious. Embedded in the traditional rules
governing constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to
challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e.,  in other
situations not before the Court.108 A writer and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual
rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as
applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law
by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not
permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis,
those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the
entire statute "on its face," not merely "as applied for" so that the overbroad law becomes unenforceable until a
properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal
adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not
courageous enough to bring suit. The Court assumes that an overbroad law’s "very existence may cause others not
before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling is designed
to remove that deterrent effect on the speech of those third parties.
 Page 88 of 122

In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and
pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or
prediction that its very existence may cause others not before the Court to refrain from constitutionally protected
speech or expression. In Younger v. Harris,109 it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of
the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and
above all the speculative and amorphous nature of the required line-by-line analysis of detailed
statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions,
whichever way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since
the challenger must establish that there can be no instance when the assailed law may be valid. Here,
petitioners did not even attempt to show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is unwarranted.

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is facially invalid
if men of common intelligence must necessarily guess at its meaning and differ as to its application."110 It is
subject to the same principles governing overbreadth doctrine. For one, it is also an analytical tool for testing "on
their faces" statutes in free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on
its face only if it is vague in all its possible applications. Again, petitioners did not even attempt to show that
PP 1017 is vague in all its application. They also failed to establish that men of common intelligence cannot
understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:

First provision:

"by virtue of the power vested upon me by Section 18, Artilce VII … do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence
as well any act of insurrection or rebellion"

Second provision:

"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally
or upon my direction;"

Third provision:

"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National Emergency."

First Provision: Calling-out Power

The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive Secretary,111 this Court,
through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the Constitution reproduced as follows:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion
 Page 89 of 122

or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under
martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation
or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene
in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual
bases of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and
must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged
within three days, otherwise he shall be released.

grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most to the least
benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the
power to declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,112 the Court ruled that the only
criterion for the exercise of the calling-out power is that "whenever it becomes necessary," the President may call
the armed forces "to prevent or suppress lawless violence, invasion or rebellion." Are these conditions present
in the instant cases? As stated earlier, considering the circumstances then prevailing, President Arroyo found it
necessary to issue PP 1017. Owing to her Office’s vast intelligence network, she is in the best position to determine
the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless
violence, invasion and rebellion. This involves ordinary police action. But every act that goes beyond the
President’s calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in the
exercise of his powers. He cannot invoke a greater power when he wishes to act under a lesser power. There lies
the wisdom of our Constitution, the greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the President’s authority to declare a "state of
rebellion" (in Sanlakas) and the authority to proclaim a state of national emergency. While President Arroyo’s
authority to declare a "state of rebellion" emanates from her powers as Chief Executive, the statutory authority cited
in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides:

SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition of public moment or
interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive order.

President Arroyo’s declaration of a "state of rebellion" was merely an act declaring a status or condition of public
moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the words of Sanlakas,
is harmless, without legal significance, and deemed not written. In these cases, PP 1017 is more than that. In
declaring a state of national emergency, President Arroyo did not only rely on Section 18, Article VII of the
Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also
 Page 90 of 122

relied on Section 17, Article XII, a provision on the State’s extraordinary power to take over privately-owned public
utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of an awesome power.
Obviously, such Proclamation cannot be deemed harmless, without legal significance, or not written, as in the case
of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no so. What
defines the character of PP 1017 are its wordings. It is plain therein that what the President invoked was her calling-
out power.

The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon by the
executive to assist in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain
of arrest and punishment, not commit any acts which will in any way render more difficult the restoration of order
and the enforcement of law."113

In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente V.
Mendoza,114 an authority in constitutional law, said that of the three powers of the President as Commander-in-
Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It is a strong medicine which
should not be resorted to lightly. It cannot be used to stifle or persecute critics of the government. It is placed in the
keeping of the President for the purpose of enabling him to secure the people from harm and to restore order so that
they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the
President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that
only under a valid declaration of Martial Law can be done. Its use for any other purpose is a perversion of its nature
and scope, and any act done contrary to its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on public
assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of Presidential
Decrees, are powers which can be exercised by the President as Commander-in-Chief  only where there is a valid
declaration of Martial Law or suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise
of President Arroyo’s calling-out power for the armed forces to assist her in preventing or suppressing lawless
violence.

Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is
based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed.

As the Executive in whom the executive power is vested, 115 the primary function of the President is to enforce the
laws as well as to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the
officials and employees of his department. Before assuming office, he is required to take an oath or affirmation to
the effect that as President of the Philippines, he will, among others, "execute its laws." 116 In the exercise of such
function, the President, if needed, may employ the powers attached to his office as the Commander-in-Chief of all
the armed forces of the country,117 including the Philippine National Police118 under the Department of Interior and
Local Government.119
 Page 91 of 122

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro
Casiño, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo
the power to enact laws and decrees in violation of Section 1, Article VI of the Constitution, which vests the power to
enact laws in Congress. They assail the clause "to enforce obedience to all the laws and to all decrees, orders
and regulations promulgated by me personally or upon my direction."

Petitioners’ contention is understandable. A reading of PP 1017 operative clause shows that it was lifted 120 from
Former President Marcos’ Proclamation No. 1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested upon
me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in
Article 1, Section 1 of the Constitution under martial law and, in my capacity as their Commander-in-Chief, do
hereby command the Armed Forces of the Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion
and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally
or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause states: "to
enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or
upon my direction." Upon the other hand, the enabling clause of PP 1017 issued by President Arroyo is:  to
enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally
or upon my direction."

Is it within the domain of President Arroyo to promulgate "decrees"?

PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by me personally or
upon my direction."

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292 (Administrative
Code of 1987). She may issue any of the following:

Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or permanent character in
implementation or execution of constitutional or statutory powers shall be promulgated in executive orders.

Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect of governmental operations
in pursuance of his duties as administrative head shall be promulgated in administrative orders.

Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or condition of public moment or
interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive order.

Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of subordinate or
temporary interest which only concern a particular officer or office of the Government shall be embodied in
memorandum orders.

Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal administration, which the
President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the
Government, for information or compliance, shall be embodied in memorandum circulars.

Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity as Commander-in-Chief
of the Armed Forces of the Philippines shall be issued as general or special orders.
 Page 92 of 122

President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot issue decrees similar to those
issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same category
and binding force as statutes because they were issued by the President in the exercise of his legislative power
during the period of Martial Law under the 1973 Constitution. 121

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the
authority to promulgate "decrees." Legislative power is peculiarly within the province of the Legislature. Section
1, Article VI categorically states that "[t]he legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives." To be sure, neither Martial Law nor a state of
rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative power by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are
void and, therefore, cannot be enforced. With respect to "laws," she cannot call the military to enforce or implement
certain laws, such as customs laws, laws governing family and property relations, laws on obligations and contracts
and the like. She can only order the military, under PP 1017, to enforce laws pertinent to its duty  to suppress
lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by me
personally or upon my direction; and as provided in Section 17, Article XII of the Constitution do hereby
declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can call
the military not only to enforce obedience "to all the laws and to all decrees x x x" but also to act pursuant to the
provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency
and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned
public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017?

The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the
President, without any authority or delegation from Congress, to take over or direct the operation of any privately-
owned public utility or business affected with public interest.

This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking of the 1971
Constitutional Convention.122 In effect at the time of its approval was President Marcos’ Letter of Instruction No. 2
dated September 22, 1972 instructing the Secretary of National Defense to take over " the management, control and
operation of the Manila Electric Company, the Philippine Long Distance Telephone Company, the National
Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and)
Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort to contain, solve and end
the present national emergency."

Petitioners, particularly the members of the House of Representatives, claim that President Arroyo’s inclusion of
Section 17, Article XII in PP 1017 is an encroachment on the legislature’s emergency powers.

This is an area that needs delineation.

 Page 93 of 122

A distinction must be drawn between the President’s authority to declare "a state of national emergency" and
to exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants the President
such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional
issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately,
shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited
period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a
declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the
next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war but also to "other
national emergency." If the intention of the Framers of our Constitution was to withhold from the President the
authority to declare a "state of national emergency" pursuant to Section 18, Article VII (calling-out power) and grant
it to Congress (like the declaration of the existence of a state of war), then the Framers could have provided so.
Clearly, they did not intend that Congress should first authorize the President before he can declare a "state of
national emergency." The logical conclusion then is that President Arroyo could validly declare the existence of a
state of national emergency even in the absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected
with public interest, is a different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise stated,
different clauses, sections, and provisions of a constitution which relate to the same subject matter will be construed
together and considered in the light of each other. 123 Considering that Section 17 of Article XII and Section 23 of
Article VI, previously quoted, relate to national emergencies, they must be read together to determine the limitation
of the exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2),
Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not
reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for
Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to
grant emergency powers to the President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by Congress.124

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private
business affected with public interest is just another facet of the emergency powers generally reposed upon
Congress. Thus, when Section 17 states that the "the State may, during the emergency and under reasonable
terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or
business affected with public interest," it refers to Congress, not the President. Now, whether or not the
President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law
prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125 held:
 Page 94 of 122

It is clear that if the President had authority to issue the order he did, it must be found in some provision of the
Constitution. And it is not claimed that express constitutional language grants this power to the President. The
contention is that presidential power should be implied from the aggregate of his powers under the Constitution.
Particular reliance is placed on provisions in Article II which say that "The executive Power shall be vested in a
President . . . .;" that "he shall take Care that the Laws be faithfully executed;" and that he "shall be Commander-in-
Chief of the Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the President’s military power as Commander-in-Chief of
the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in
military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us
here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our
constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power as
such to take possession of private property in order to keep labor disputes from stopping production. This
is a job for the nation’s lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive
power to the President. In the framework of our Constitution, the President’s power to see that the laws are
faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the
lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And
the Constitution is neither silent nor equivocal about who shall make laws which the President is to
execute. The first section of the first article says that "All legislative Powers herein granted shall be vested
in a Congress of the United States. . ."126

Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII refers to
"tsunami," "typhoon," "hurricane"and"similar occurrences." This is a limited view of "emergency."

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing
danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions are the elements of
intensity, variety, and perception. 127 Emergencies, as perceived by legislature or executive in the United Sates since
1933, have been occasioned by a wide range of situations, classifiable under three (3) principal
heads: a) economic,128 b) natural disaster,129 and c) national security.130

"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis,
pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect. 131 This is
evident in the Records of the Constitutional Commission, thus:

MR. GASCON. Yes. What is the Committee’s definition of "national emergency" which appears in Section 13, page
5? It reads:

When the common good so requires, the State may temporarily take over or direct the operation of any privately
owned public utility or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."

MR. BENGZON. Unless they are of such proportions such that they would paralyze government service. 132

xxxxxx

MR. TINGSON. May I ask the committee if "national emergency" refers to military national emergency or could
this be economic emergency?"
 Page 95 of 122

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.133

It may be argued that when there is national emergency, Congress may not be able to convene and, therefore,
unable to delegate to the President the power to take over privately-owned public utility or business affected with
public interest.

In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which extraordinary measures are
exercised, remains in Congress even in times of crisis.

"x x x

After all the criticisms that have been made against the efficiency of the system of the separation of powers, the fact
remains that the Constitution has set up this form of government, with all its defects and shortcomings, in preference
to the commingling of powers in one man or group of men. The Filipino people by adopting parliamentary
government have given notice that they share the faith of other democracy-loving peoples in this system, with all its
faults, as the ideal. The point is, under this framework of government, legislation is preserved for Congress all the
time, not excepting periods of crisis no matter how serious. Never in the history of the United States, the basic
features of whose Constitution have been copied in ours, have specific functions of the legislative branch of
enacting laws been surrendered to another department – unless we regard as legislating the carrying out of a
legislative policy according to prescribed standards; no, not even when that Republic was fighting a total war, or
when it was engaged in a life-and-death struggle to preserve the Union. The truth is that under our concept of
constitutional government, in times of extreme perils more than in normal circumstances ‘the various branches,
executive, legislative, and judicial,’ given the ability to act, are called upon ‘to perform the duties and discharge the
responsibilities committed to them respectively."

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court
rules that such Proclamation does not authorize her during the emergency to temporarily take over or direct the
operation of any privately owned public utility or business affected with public interest without authority from
Congress.

Let it be emphasized that while the President alone can declare a state of national emergency, however, without
legislation, he has no power to take over privately-owned public utility or business affected with public interest. The
President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public
utility or business affected with public interest. Nor can he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected
with public interest that should be taken over. In short, the President has no absolute authority to exercise all the
powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress.

c. "AS APPLIED CHALLENGE"

One of the misfortunes of an emergency, particularly, that which pertains to security, is that military necessity and
the guaranteed rights of the individual are often not compatible. Our history reveals that in the crucible of conflict,
many rights are curtailed and trampled upon. Here, the right against unreasonable search and seizure; the right
against warrantless arrest; and the freedom of speech, of expression, of the press, and of assembly under
the Bill of Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested without
warrants on their way to EDSA to celebrate the 20th Anniversary of People Power I. The arresting officers cited PP
1017 as basis of the arrest.
 Page 96 of 122

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on February 25, 2006,
the CIDG operatives "raided and ransacked without warrant" their office. Three policemen were assigned to guard
their office as a possible "source of destabilization." Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were "turned away
and dispersed" when they went to EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of  People
Power I.

A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted from
the implementation, pursuant to G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In
general, does the illegal implementation of a law render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and
misabused135 and may afford an opportunity for abuse in the manner of application.136 The validity of a statute
or ordinance is to be determined from its general purpose and its efficiency to accomplish the end desired, not from
its effects in a particular case.137 PP 1017 is merely an invocation of the President’s calling-out power. Its general
purpose is to command the AFP to suppress all forms of lawless violence, invasion or rebellion. It had accomplished
the end desired which prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the
police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens’ constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor committed
illegal acts? The answer is no. The criterion by which the validity of the statute or ordinance is to be measured is the
essential basis for the exercise of power, and not a mere incidental result arising from its exertion.138 This is
logical. Just imagine the absurdity of situations when laws maybe declared unconstitutional just because the officers
implementing them have acted arbitrarily. If this were so, judging from the blunders committed by policemen in the
cases passed upon by the Court, majority of the provisions of the Revised Penal Code would have been declared
unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are "acts and
commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines." They
are internal rules issued by the executive officer to his subordinates precisely for
the proper and efficient administration of law. Such rules and regulations create no relation except between the
official who issues them and the official who receives them. 139 They are based on and are the product of, a
relationship in which power is their source, and obedience, their object. 140 For these reasons, one requirement for
these rules to be valid is that they must be reasonable, not arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and appropriate actions and
measures to suppress and prevent acts of terrorism and lawless violence."

Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution, and which is
invariably associated with "invasion, insurrection or rebellion," the phrase "acts of terrorism" is still an amorphous
and vague concept. Congress has yet to enact a law defining and punishing acts of terrorism.

In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts not only our
country, but the international community as well. The following observations are quite apropos:

In the actual unipolar context of international relations, the "fight against terrorism" has become one of the basic
slogans when it comes to the justification of the use of force against certain states and against groups operating
internationally. Lists of states "sponsoring terrorism" and of terrorist organizations are set up and constantly being
updated according to criteria that are not always known to the public, but are clearly determined by strategic
interests.
 Page 97 of 122

The basic problem underlying all these military actions – or threats of the use of force as the most recent by the
United States against Iraq – consists in the absence of an agreed definition of terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by armed
groups such as liberation movements, or by individuals.

The dilemma can by summarized in the saying "One country’s terrorist is another country’s freedom fighter." The
apparent contradiction or lack of consistency in the use of the term "terrorism" may further be demonstrated by the
historical fact that leaders of national liberation movements such as Nelson Mandela in South Africa, Habib
Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists by
those who controlled the territory at the time, but later became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts – the differentia specifica distinguishing those acts from
eventually legitimate acts of national resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in vain to reach a consensus on
the basic issue of definition. The organization has intensified its efforts recently, but has been unable to bridge the
gap between those who associate "terrorism" with any violent act by non-state groups against civilians, state
functionaries or infrastructure or military installations, and those who believe in the concept of the legitimate use of
force when resistance against foreign occupation or against systematic oppression of ethnic and/or religious groups
within a state is concerned.

The dilemma facing the international community can best be illustrated by reference to the contradicting
categorization of organizations and movements such as Palestine Liberation Organization (PLO) – which is a
terrorist group for Israel and a liberation movement for Arabs and Muslims – the Kashmiri resistance groups – who
are terrorists in the perception of India, liberation fighters in that of Pakistan – the earlier Contras in Nicaragua –
freedom fighters for the United States, terrorists for the Socialist camp – or, most drastically, the Afghani
Mujahedeen (later to become the Taliban movement): during the Cold War period they were a group of freedom
fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could go on and
on in enumerating examples of conflicting categorizations that cannot be reconciled in any way – because of
opposing political interests that are at the roots of those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the same
group and its actions be explained? In our analysis, the basic reason for these striking inconsistencies lies in the
divergent interest of states. Depending on whether a state is in the position of an occupying power or in that of a
rival, or adversary, of an occupying power in a given territory, the definition of terrorism will "fluctuate" accordingly. A
state may eventually see itself as protector of the rights of a certain ethnic group outside its territory and will
therefore speak of a "liberation struggle," not of "terrorism" when acts of violence by this group are concerned, and
vice-versa.

The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly because
of these conflicting interests of sovereign states that determine in each and every instance how a particular armed
movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom fighter dichotomy. A "policy of double
standards" on this vital issue of international affairs has been the unavoidable consequence.

This "definitional predicament" of an organization consisting of sovereign states – and not of peoples, in spite of the
emphasis in the Preamble to the United Nations Charter! – has become even more serious in the present global
power constellation: one superpower exercises the decisive role in the Security Council, former great powers of the
Cold War era as well as medium powers are increasingly being marginalized; and the problem has become even
more acute since the terrorist attacks of 11 September 2001 I the United States. 141

The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of the police or
military. An illustration is when a group of persons are merely engaged in a drinking spree. Yet the military or the
police may consider the act as an act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously,
 Page 98 of 122

this is abuse and oppression on their part. It must be remembered that an act can only be considered a crime if
there is a law defining the same as such and imposing the corresponding penalty thereon.

So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January 16, 1981
enacted by President Marcos during the Martial Law regime. This decree is entitled "Codifying The Various Laws on
Anti-Subversion and Increasing The Penalties for Membership in Subversive Organizations." The word "terrorism" is
mentioned in the following provision: "That one who conspires with any other person for the purpose of overthrowing
the Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished by reclusion
temporal x x x."

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines) enacted by
President Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define "acts of terrorism." Since
there is no law defining "acts of terrorism," it is President Arroyo alone, under G.O. No. 5, who has the discretion to
determine what acts constitute terrorism. Her judgment on this aspect is absolute, without restrictions.
Consequently, there can be indiscriminate arrest without warrants, breaking into offices and residences, taking over
the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly to the administration. All
these can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out power of the President.
Certainly, they violate the due process clause of the Constitution. Thus, this Court declares that the "acts of
terrorism" portion of G.O. No. 5 is unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond what
are necessary and appropriate to suppress and prevent lawless violence, the limitation of their authority in
pursuing the Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that "the right of the people to be secured in their persons, houses, papers and effects
against unreasonable search and seizure of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized." 142 The plain import of the
language of the Constitution is that searches, seizures and arrests are normally unreasonable unless authorized by
a validly issued search warrant or warrant of arrest. Thus, the fundamental protection given by this provision is that
between person and police must stand the protective authority of a magistrate clothed with power to issue or refuse
to issue search warrants or warrants of arrest.143

In the Brief Account 144 submitted by petitioner David, certain facts are established: first, he was arrested without
warrant; second, the PNP operatives arrested him on the basis of PP 1017; third, he was brought at Camp Karingal,
Quezon City where he was fingerprinted, photographed and booked like a criminal suspect;  fourth,he was treated
brusquely by policemen who "held his head and tried to push him" inside an unmarked car; fifth, he was charged
with Violation of Batas Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he was detained for seven (7)
hours; and seventh,he was eventually released for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a
person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting
to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and

x x x.
 Page 99 of 122

Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless arrest. During the inquest
for the charges of inciting to sedition and violation of BP 880, all that the arresting officers could invoke was their
observation that some rallyists were wearing t-shirts with the invective "Oust Gloria Now" and their erroneous
assumption that petitioner David was the leader of the rally. 146 Consequently, the Inquest Prosecutor ordered his
immediate release on the ground of insufficiency of evidence. He noted that petitioner David was not wearing the
subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with i nciting to sedition. Further,
he also stated that there is insufficient evidence for the charge of violation of BP 880 as it was not even known
whether petitioner David was the leader of the rally. 147

But what made it doubly worse for petitioners David et al. is that not only was their right against warrantless arrest
violated, but also their right to peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress of grievances.

"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It
is a necessary consequence of our republican institution and complements the right of speech. As in the case of
freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that Congress has a right to prevent. In other words, like other rights embraced in the
freedom of expression, the right to assemble is not subject to previous restraint or censorship. It may not be
conditioned upon the prior issuance of a permit or authorization from the government authorities except, of course, if
the assembly is intended to be held in a public place, a permit for the use of such place, and not for the assembly
itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to peaceful
assembly. They were not committing any crime, neither was there a showing of a clear and present danger that
warranted the limitation of that right. As can be gleaned from circumstances, the charges of  inciting to
sedition and violation of BP 880 were mere afterthought. Even the Solicitor General, during the oral argument,
failed to justify the arresting officers’ conduct. In De Jonge v. Oregon,148 it was held that peaceable assembly cannot
be made a crime, thus:

Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political
action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on
that score. The question, if the rights of free speech and peaceful assembly are not to be preserved, is not as to the
auspices under which the meeting was held but as to its purpose; not as to the relations of the speakers, but
whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the
persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against
the public peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it is a
different matter when the State, instead of prosecuting them for such offenses, seizes upon mere
participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members of
KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely on the basis of
Malacañang’s directive canceling all permits previously issued by local government units. This is arbitrary. The
wholesale cancellation of all permits to rally is a blatant disregard of the principle that "freedom of assembly is not
to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that
the State has a right to prevent."149 Tolerance is the rule and limitation is the exception. Only upon a showing that
an assembly presents a clear and present danger that the State may deny the citizens’ right to exercise it. Indeed,
respondents failed to show or convince the Court that the rallyists committed acts amounting to lawless violence,
invasion or rebellion. With the blanket revocation of permits, the distinction between protected and unprotected
assemblies was eliminated.
 Page 100 of 122

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local government units.
They have the power to issue permits and to revoke such permits after due notice and hearing on the
determination of the presence of clear and present danger. Here, petitioners were not even notified and heard on
the revocation of their permits. 150 The first time they learned of it was at the time of the dispersal. Such absence of
notice is a fatal defect. When a person’s right is restricted by government action, it behooves a democratic
government to see to it that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of the
press. Petitioners’ narration of facts, which the Solicitor General failed to refute, established the
following: first, the Daily Tribune’s offices were searched without warrant;second, the police operatives seized
several materials for publication; third, the search was conducted at about 1:00 o’ clock in the morning of February
25, 2006; fourth, the search was conducted in the absence of any official of the Daily Tribune except the security
guard of the building; and fifth, policemen stationed themselves at the vicinity of the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael Defensor was
quoted as saying that such raid was "meant to show a ‘strong presence,’ to tell media outlets not to connive
or do anything that would help the rebels in bringing down this government." Director General Lomibao
further stated that "if they do not follow the standards –and the standards are if they would contribute to
instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No.
1017 – we will recommend a ‘takeover.’" National Telecommunications Commissioner Ronald Solis urged
television and radio networks to "cooperate" with the government for the duration of the state of national
emergency. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit
that violates rules set out for media coverage during times when the national security is threatened.151

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the conduct of
search and seizure. Section 4 requires that a search warrant be issued upon probable cause in connection with
one specific offence to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. Section 8 mandates that the search of a house, room, or any other
premise be made in the presence of the lawful occupant thereof or any member of his family or in the absence of
the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same locality.
And Section 9 states that the warrant must direct that it be served in the daytime, unless the property is on the
person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any
time of the day or night. All these rules were violated by the CIDG operatives.

Not only that, the search violated petitioners’ freedom of the press. The best gauge of a free and democratic society
rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of Staff152 this Court held that --

As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and
the "We Forum" newspapers. As a consequence of the search and seizure, these premises were padlocked and
sealed, with the further result that the printing and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press
guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to express
themselves in print. This state of being is patently anathematic to a democratic framework where a free,
alert and even militant press is essential for the political enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and "We Forum"
newspapers in the above case, yet it cannot be denied that the CIDG operatives exceeded their enforcement duties.
The search and seizure of materials for publication, the stationing of policemen in the vicinity of the The Daily
Tribune offices, and the arrogant warning of government officials to media, are plain censorship. It is that officious
functionary of the repressive government who tells the citizen that he may speak only if allowed to do so, and no
more and no less than what he is permitted to say on pain of punishment should he be so rash as to
disobey.153 Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because of its anti-
government sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even if it involves
the most defiant of our citizens. Freedom to comment on public affairs is essential to the vitality of a representative
 Page 101 of 122

democracy. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any
stealthy encroachments thereon. The motto should always be obsta principiis.154

Incidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribune’s offices and
the seizure of its materials for publication and other papers are illegal; and that the same are inadmissible "for any
purpose," thus:

JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when inspected the Tribune for the
purpose of gathering evidence and you admitted that the policemen were able to get the clippings. Is that not in
admission of the admissibility of these clippings that were taken from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor, and these are
inadmissible for any purpose.155

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to get those past issues. So
why do you have to go there at 1 o’clock in the morning and without any search warrant? Did they become suddenly
part of the evidence of rebellion or inciting to sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based on Proclamation
1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that the police could
go and inspect and gather clippings from Daily Tribune or any other newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:
 Page 102 of 122

Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is premature to say this,  we do not condone
this. If the people who have been injured by this would want to sue them, they can sue and there are
remedies for this.156

Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor General,
illegal and cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I don’t know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the occasion of
1017, as I said, it cannot be condoned. You cannot blame the President for, as you said, a misapplication of the
law. These are acts of the police officers, that is their responsibility. 157

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and "should result in
no constitutional or statutory breaches if applied according to their letter."

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively
presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by the President of the military
to prevent or suppress lawless violence, invasion or rebellion. When in implementing its provisions, pursuant to G.O.
No. 5, the military and the police committed acts which violate the citizens’ rights under the Constitution, this Court
has to declare such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion, attached hereto, is considered an
integral part of this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would have normally
rendered this case moot and academic. However, while PP 1017 was still operative, illegal acts were committed
allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar to it, may not again be
issued. Already, there have been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed "if the
May 1 rallies" become "unruly and violent." Consequently, the transcendental issues raised by the parties should not
be "evaded;" they must now be resolved to prevent future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the
AFP to prevent or suppress lawless violence. The proclamation is sustained by Section 18, Article VII of the
Constitution and the relevant jurisprudence discussed earlier. However, PP 1017’s extraneous provisions giving the
President express or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to  all laws even
those not related to lawless violence as well as decrees promulgated by the President; and (3) to impose standards
on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The Court also rules that
under Section 17, Article XII of the Constitution, the President, in the absence of a legislation, cannot take over
privately-owned public utility and private business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President – acting as Commander-in-
Chief – addressed to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it also provides a
valid standard – that the military and the police should take only the "necessary and appropriate actions and
measures to suppress and prevent acts of lawless violence."But the words "acts of terrorism" found in G.O.
No. 5 have not been legally defined and made punishable by Congress and should thus be deemed deleted from
the said G.O. While "terrorism" has been denounced generally in media, no law has been enacted to guide the
military, and eventually the courts, to determine the limits of the AFP’s authority in carrying out this portion of G.O.
No. 5.
 Page 103 of 122

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the warrantless
arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of
the KMU and NAFLU-KMU members; (3) the imposition of standards on media or any prior restraint on the press;
and (4) the warrantless search of the Tribune offices and the whimsical seizures of some articles for publication and
other materials, are not authorized by the Constitution, the law and jurisprudence. Not even by the valid provisions
of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative sanctions on
the individual police officers concerned. They have not been individually identified and given their day in court. The
civil complaints or causes of action and/or relevant criminal Informations have not been presented before this Court.
Elementary due process bars this Court from making any specific pronouncement of civil, criminal or administrative
liabilities.

It is well to remember that military power is a means to an end and substantive civil rights are ends in
themselves. How to give the military the power it needs to protect the Republic without unnecessarily
trampling individual rights is one of the eternal balancing tasks of a democratic state.During emergency,
governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary as to
unduly restrain our people’s liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political
philosophies is that, it is possible to grant government the authority to cope with crises without surrendering the two
vital principles of constitutionalism: the maintenance of legal limits to arbitrary power, and political
responsibility of the government to the governed.158

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it
constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence.
However, the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as
decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017
declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such
declaration does not authorize the President to take over privately-owned public utility or business affected with
public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP
1017, i.e. whatever is "necessary and appropriate actions and measures to suppress and prevent acts of
lawless violence." Considering that "acts of terrorism" have not yet been defined and made punishable by the
Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and
NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts
constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or
any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical
seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.

DELEGATION OF POWERS

G.R. No. 170516               July 16, 2008

 Page 104 of 122

AKBAYAN CITIZENS ACTION PARTY ("AKBAYAN, Petitioners,

vs.
THOMAS G. AQUINO, Respondents.

DECISION

CARPIO MORALES, J.:

Petitioners – non-government organizations, Congresspersons, citizens and taxpayers – seek via the present
petition for mandamus and prohibition to obtain from respondents the full text of the Japan-Philippines Economic
Partnership Agreement (JPEPA) including the Philippine and Japanese offers submitted during the negotiation
process and all pertinent attachments and annexes thereto.

Petitioners Congressmen Lorenzo R. Tañada III and Mario Joyo Aguja filed on January 25, 2005 House Resolution
No. 551 calling for an inquiry into the bilateral trade agreements then being negotiated by the Philippine
government, particularly the JPEPA. The Resolution became the basis of an inquiry subsequently conducted by the
House Special Committee on Globalization (the House Committee) into the negotiations of the JPEPA.

In the course of its inquiry, the House Committee requested herein respondent Undersecretary Tomas Aquino
(Usec. Aquino), Chairman of the Philippine Coordinating Committee created under Executive Order No. 213
("Creation of A Philippine Coordinating Committee to Study the Feasibility of the Japan-Philippines Economic
Partnership Agreement")1 to study and negotiate the proposed JPEPA, and to furnish the Committee with a copy of
the latest draft of the JPEPA. Usec. Aquino did not heed the request, however.

Congressman Aguja later requested for the same document, but Usec. Aquino, by letter of November 2, 2005,
replied that the Congressman shall be provided with a copy thereof "once the negotiations are completed and as
soon as a thorough legal review of the proposed agreement has been conducted."

In a separate move, the House Committee, through Congressman Herminio G. Teves, requested Executive
Secretary Eduardo Ermita to furnish it with "all documents on the subject including the latest draft of the proposed
agreement, the requests and offers etc." 2 Acting on the request, Secretary Ermita, by letter of June 23, 2005, wrote
Congressman Teves as follows:

In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs] explains that  the
Committee’s request to be furnished all documents on the JPEPA may be difficult to accomplish at this
time, since the proposed Agreement has been a work in progress for about three years. A copy of the draft
JPEPA will however be forwarded to the Committee as soon as the text thereof is settled and complete. (Emphasis
supplied)

Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff Commission Chairman Edgardo
Abon, by letter of July 1, 2005, for copies of the latest text of the JPEPA.
Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission does not have a copy of the
documents being requested, albeit he was certain that Usec. Aquino would provide the Congressman with a copy
"once the negotiation is completed." And by letter of July 18, 2005, NEDA Assistant Director-General Margarita R.
Songco informed the Congressman that his request addressed to Director-General Neri had been forwarded to
Usec. Aquino who would be "in the best position to respond" to the request.

In its third hearing conducted on August 31, 2005, the House Committee resolved to issue a subpoena for the most
recent draft of the JPEPA, but the same was not pursued because by Committee Chairman Congressman Teves’
information, then House Speaker Jose de Venecia had requested him to hold in abeyance the issuance of the
subpoena until the President gives her consent to the disclosure of the documents. 3

Amid speculations that the JPEPA might be signed by the Philippine government within December 2005, the
present petition was filed on December 9, 2005. 4 The agreement was to be later signed on September 9, 2006 by
President Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland, following
 Page 105 of 122

which the President endorsed it to the Senate for its concurrence pursuant to Article VII, Section 21 of the
Constitution. To date, the JPEPA is still being deliberated upon by the Senate.

The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines with another
country in the event the Senate grants its consent to it, covers a broad range of topics which respondents
enumerate as follows: trade in goods, rules of origin, customs procedures, paperless trading, trade in services,
investment, intellectual property rights, government procurement, movement of natural persons, cooperation,
competition policy, mutual recognition, dispute avoidance and settlement, improvement of the business
environment, and general and final provisions.5

While the final text of the JPEPA has now been made accessible to the public since September 11,
2006,6 respondents do not dispute that, at the time the petition was filed up to the filing of petitioners’ Reply – when
the JPEPA was still being negotiated – the initial drafts thereof were kept from public view.

Before delving on the substantive grounds relied upon by petitioners in support of the petition, the Court finds it
necessary to first resolve some material procedural issues.

Standing

For a petition for mandamus such as the one at bar to be given due course, it must be instituted by a party
aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said party
from the enjoyment of a legal right. 7 Respondents deny that petitioners have such standing to sue. "[I]n the interest
of a speedy and definitive resolution of the substantive issues raised," however, respondents consider it sufficient to
cite a portion of the ruling in Pimentel v. Office of Executive Secretary 8 which emphasizes the need for a "personal
stake in the outcome of the controversy" on questions of standing.

In a petition anchored upon the right of the people to information on matters of public concern, which is a public right
by its very nature, petitioners need not show that they have any legal or special interest in the result, it being
sufficient to show that they are citizens and, therefore, part of the general public which possesses the right. 9 As the
present petition is anchored on the right to information and petitioners are all suing in their capacity as citizens and
groups of citizens including petitioners-members of the House of Representatives who additionally are suing in their
capacity as such, the standing of petitioners to file the present suit is grounded in jurisprudence.

Mootness

Considering, however, that "[t]he principal relief petitioners are praying for is the disclosure of the contents of the
JPEPA prior to its finalization between the two States parties,"10 public disclosure of the text of the JPEPA after its
signing by the President, during the pendency of the present petition, has been largely rendered moot and
academic.

With the Senate deliberations on the JPEPA still pending, the agreement as it now stands cannot yet be considered
as final and binding between the two States. Article 164 of the JPEPA itself provides that the agreement does not
take effect immediately upon the signing thereof. For it must still go through the procedures required by the laws of
each country for its entry into force, viz:

Article 164
Entry into Force

This Agreement shall enter into force on the thirtieth day after the date on which the Governments of the Parties
exchange diplomatic notes informing each other that their respective legal procedures necessary for entry into
force of this Agreement have been completed. It shall remain in force unless terminated as provided for in Article
165.11 (Emphasis supplied)

President Arroyo’s endorsement of the JPEPA to the Senate for concurrence is part of the legal procedures which
must be met prior to the agreement’s entry into force.
 Page 106 of 122

The text of the JPEPA having then been made accessible to the public, the petition has become moot and academic
to the extent that it seeks the disclosure of the "full text" thereof.

The petition is not entirely moot, however, because petitioners seek to obtain, not merely the text of the JPEPA, but
also the Philippine and Japanese offers in the course of the negotiations.12

A discussion of the substantive issues, insofar as they impinge on petitioners’ demand for access to the Philippine
and Japanese offers, is thus in order.

Grounds relied upon by petitioners

Petitioners assert, first, that the refusal of the government to disclose the documents bearing on the JPEPA
negotiations violates their right to information on matters of public concern 13 and contravenes other constitutional
provisions on transparency, such as that on the policy of full public disclosure of all transactions involving public
interest.14 Second, they contend that non-disclosure of the same documents undermines their right to effective and
reasonable participation in all levels of social, political, and economic decision-making. 15 Lastly, they proffer that
divulging the contents of the JPEPA only after the agreement has been concluded will effectively make the Senate
into a mere rubber stamp of the Executive, in violation of the principle of separation of powers.

Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of the JPEPA are, except for
the last, the same as those cited for the disclosure of the Philippine and Japanese offers.

The first two grounds relied upon by petitioners which bear on the merits of respondents’ claim of privilege shall be
discussed. The last, being purely speculatory given that the Senate is still deliberating on the JPEPA, shall not.

The JPEPA is a matter of public concern

To be covered by the right to information, the information sought must meet the threshold requirement that it be a
matter of public concern. Apropos is the teaching of Legaspi v. Civil Service Commission:

In determining whether or not a particular information is of public concern there is no rigid test which can be applied.
‘Public concern’ like ‘public interest’ is a term that eludes exact definition. Both terms embrace a broad spectrum of
subjects which the public may want to know, either because these directly affect their lives, or simply because such
matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a
case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the
public.16 (Underscoring supplied)

From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese
offers submitted during the negotiations towards its execution are matters of public concern. This, respondents do
not dispute. They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus
constituting an exception to the right to information and the policy of full public disclosure.

Respondents’ claim of privilege

It is well-established in jurisprudence that neither the right to information nor the policy of full public disclosure is
absolute, there being matters which, albeit of public concern or public interest, are recognized as privileged in
nature. The types of information which may be considered privileged have been elucidated in Almonte v.
Vasquez,17 Chavez v. PCGG,18 Chavez v. Public Estate’s Authority, 19 and most recently in Senate v. Ermita20 where
the Court reaffirmed the validity of the doctrine of executive privilege in this jurisdiction and dwelt on its scope.

Whether a claim of executive privilege is valid depends on the ground invoked to justify it and the context in which it
is made.21 In the present case, the ground for respondents’ claim of privilege is set forth in their Comment, viz:
 Page 107 of 122

x x x The categories of information that may be considered privileged includes matters of diplomatic character and
under negotiation and review. In this case, the privileged character of the diplomatic negotiations has been
categorically invoked and clearly explained by respondents particularly respondent DTI Senior Undersecretary.

The documents on the proposed JPEPA as well as the text which is subject to negotiations and legal review by the
parties fall under the exceptions to the right of access to information on matters of public concern and policy of
public disclosure. They come within the coverage of executive privilege. At the time when the Committee was
requesting for copies of such documents, the negotiations were ongoing as they are still now and the text of the
proposed JPEPA is still uncertain and subject to change. Considering the status and nature of such documents then
and now, these are evidently covered by executive privilege consistent with existing legal provisions and settled
jurisprudence.

Practical and strategic considerations likewise counsel against the disclosure of the "rolling texts" which may
undergo radical change or portions of which may be totally abandoned. Furthermore, the negotiations of the
representatives of the Philippines as well as of Japan must be allowed to explore alternatives in the course
of the negotiations in the same manner as judicial deliberations and working drafts of opinions are
accorded strict confidentiality.22 (Emphasis and underscoring supplied)

The ground relied upon by respondents is thus not simply that the information sought involves a diplomatic matter,
but that it pertains to diplomatic negotiations then in progress.

Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid
limitations on the right to information, the Court in Chavez v. PCGG held that "information on inter-government
exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards
for the sake of national interest."23 Even earlier, the same privilege was upheld in People’s Movement for Press
Freedom (PMPF) v. Manglapus24 wherein the Court discussed the reasons for the privilege in more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s representatives on the
state of the then on-going negotiations of the RP-US Military Bases Agreement. 25 The Court denied the petition,
stressing that "secrecy of negotiations with foreign countries is not violative of the constitutional provisions of
freedom of speech or of the press nor of the freedom of access to information." The Resolution went on to state,
thus:

The nature of diplomacy requires centralization of authority and expedition of decision which are inherent
in executive action. Another essential characteristic of diplomacy is its confidential nature. Although much
has been said about "open" and "secret" diplomacy, with disparagement of the latter, Secretaries of State Hughes
and Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson:

"A complicated negotiation . . . cannot be carried through without many, many private talks and discussion,
man to man; many tentative suggestions and proposals. Delegates from other countries come and tell you
in confidence of their troubles at home and of their differences with other countries and with other
delegates; they tell you of what they would do under certain circumstances and would not do under other
circumstances. . . If these reports . . . should become public . . . who would ever trust American Delegations
in another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284.)."

xxxx

There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is
concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one writer,
"It can be said that there is no more rigid system of silence anywhere in the world." (E.J. Young, Looking Behind the
Censorship, J. B. Lippincott Co., 1938) President Wilson in starting his efforts for the conclusion of the World War
declared that we must have "open covenants, openly arrived at." He quickly abandoned his thought.
 Page 108 of 122

No one who has studied the question believes that such a method of publicity is possible.  In the moment that
negotiations are started, pressure groups attempt to "muscle in." An ill-timed speech by one of the parties
or a frank declaration of the concession which are exacted or offered on both sides would quickly lead to
widespread propaganda to block the negotiations. After a treaty has been drafted and its terms are fully
published, there is ample opportunity for discussion before it is approved. (The New American Government
and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp.26 that the
President is the sole organ of the nation in its negotiations with foreign countries, viz:

"x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the President
alone has the power to speak or listen as a representative of the nation. He  makes treaties with the advice and
consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and
Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of
Representatives, "The President is the sole organ of the nation in its external relations, and its sole
representative with foreign nations." Annals, 6th Cong., col. 613. . . (Emphasis supplied; underscoring in the
original)

Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be
kept perpetually confidential – since there should be "ample opportunity for discussion before [a treaty] is approved"
– the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is
published. It is reasonable to conclude that the Japanese representatives submitted their offers with the
understanding that "historic confidentiality"27 would govern the same. Disclosing these offers could impair the
ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations.

A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future
Philippine representatives from frankly expressing their views during negotiations. While, on first impression, it
appears wise to deter Philippine representatives from entering into compromises, it bears noting that treaty
negotiations, or any negotiation for that matter, normally involve a process of quid pro quo, and oftentimes
negotiators have to be willing to grant concessions in an area of lesser importance in order to obtain more
favorable terms in an area of greater national interest. Apropos are the following observations of Benjamin S.
Duval, Jr.:

x x x [T]hose involved in the practice of negotiations appear to be in agreement that publicity leads to
"grandstanding," tends to freeze negotiating positions, and inhibits the give-and-take essential to successful
negotiation. As Sissela Bok points out, if "negotiators have more to gain from being approved by their own sides
than by making a reasoned agreement with competitors or adversaries, then they are inclined to 'play to the gallery .
. .'' In fact, the public reaction may leave them little option. It would be a brave, or foolish, Arab leader who
expressed publicly a willingness for peace with Israel that did not involve the return of the entire West Bank, or
Israeli leader who stated publicly a willingness to remove Israel's existing settlements from Judea and Samaria in
return for peace.28 (Emphasis supplied)

Indeed, by hampering the ability of our representatives to compromise, we may be jeopardizing higher national
goals for the sake of securing less critical ones.

Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations
constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v.
Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in all
instances. Only after a consideration of the context in which the claim is made may it be determined if there is a
public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally
privileged status.

Whether petitioners have established the presence of such a public interest shall be discussed later. For now, the
Court shall first pass upon the arguments raised by petitioners against the application of PMPF v. Manglapus to the
present case.
 Page 109 of 122

Arguments proffered by petitioners against the application of PMPF v. Manglapus

Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present case, there being substantial
factual distinctions between the two.

To petitioners, the first and most fundamental distinction  lies in the nature of the treaty involved. They stress
that PMPF v. Manglapus involved the Military Bases Agreement which necessarily pertained to matters
affecting national security; whereas the present case involves an economic treaty that seeks to regulate trade and
commerce between the Philippines and Japan, matters which, unlike those covered by the Military Bases
Agreement, are not so vital to national security to disallow their disclosure.

Petitioners’ argument betrays a faulty assumption that information, to be considered privileged, must involve
national security. The recognition in Senate v. Ermita29 that executive privilege has encompassed claims of varying
kinds, such that it may even be more accurate to speak of "executive privileges," cautions against such
generalization.

While there certainly are privileges grounded on the necessity of safeguarding national security such as those
involving military secrets, not all are founded thereon. One example is the "informer’s privilege," or the privilege of
the Government not to disclose the identity of a person or persons who furnish information of violations of law to
officers charged with the enforcement of that law. 30 The suspect involved need not be so notorious as to be a threat
to national security for this privilege to apply in any given instance. Otherwise, the privilege would be inapplicable in
all but the most high-profile cases, in which case not only would this be contrary to long-standing practice. It would
also be highly prejudicial to law enforcement efforts in general.

Also illustrative is the privilege accorded to presidential communications, which are presumed privileged without
distinguishing between those which involve matters of national security and those which do not, the rationale for the
privilege being that

x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by
interested parties, is essential to protect the independence of decision-making of those tasked to exercise
Presidential, Legislative and Judicial power. x x x31 (Emphasis supplied)

In the same way that the privilege for judicial deliberations does not depend on the nature of the case deliberated
upon, so presidential communications are privileged whether they involve matters of national security.

It bears emphasis, however, that the privilege accorded to presidential communications is not absolute, one
significant qualification being that "the Executive cannot, any more than the other branches of government, invoke a
general confidentiality privilege to shield its officials and employees from investigations  by the proper governmental
institutions into possible criminal wrongdoing." 32 This qualification applies whether the privilege is being invoked in
the context of a judicial trial or a congressional investigation conducted in aid of legislation. 33

Closely related to the "presidential communications" privilege is the deliberative process privilege recognized in the
United States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co,34 deliberative process
covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated. Notably, the privileged status of such documents
rests, not on the need to protect national security but, on the "obvious realization that officials will not
communicate candidly among themselves if each remark is a potential item of discovery and front page news," the
objective of the privilege being to enhance the quality of agency decisionshttp://web2.westlaw.com/find/default.wl?
rs=WLW7.07&serialnum=1975129772&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-1&db=708&utid=%7b532A6DBF-
9B4C-4A5A-8F16-C20D9BAA36C4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=WLIGeneralSubscription. 35

The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential
communications privilege. It may be readily perceived that the rationale for the confidential character of diplomatic
negotiations, deliberative process, and presidential communications is similar, if not identical.
 Page 110 of 122

The earlier discussion on PMPF v. Manglapus 36 shows that the privilege for diplomatic negotiations is meant to
encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations
from public view. Similar to the privilege for presidential communications, the diplomatic negotiations privilege
seeks, through the same means, to protect the independence in decision-making of the President, particularly in its
capacity as "the sole organ of the nation in its external relations, and its sole representative with foreign nations."
And, as with the deliberative process privilege, the privilege accorded to diplomatic negotiations arises, not on
account of the content of the information per se, but because the information is part of a process of deliberation
which, in pursuit of the public interest, must be presumed confidential.

The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v. Department of the
Treasury37 enlightens on the close relation between diplomatic negotiations and deliberative process privileges. The
plaintiffs in that case sought access to notes taken by a member of the U.S. negotiating team during the U.S.-
French tax treaty negotiations. Among the points noted therein were the issues to be discussed, positions which the
French and U.S. teams took on some points, the draft language agreed on, and articles which needed to be
amended. Upholding the confidentiality of those notes, Judge Green ruled, thus:

Negotiations between two countries to draft a treaty represent a true example of a deliberative process.
Much give-and-take must occur for the countries to reach an accord. A description of the negotiations at any
one point would not provide an onlooker a summary of the discussions which could later be relied on as law. It
would not be "working law" as the points discussed and positions agreed on would be subject to change at any date
until the treaty was signed by the President and ratified by the Senate.

The policies behind the deliberative process privilege support non-disclosure. Much harm could accrue to
the negotiations process if these notes were revealed. Exposure of the pre-agreement positions of the
French negotiators might well offend foreign governments  and would lead to less candor by the U. S. in
recording the events of the negotiations process. As several months pass in between negotiations, this lack of
record could hinder readily the U. S. negotiating team. Further disclosure would reveal prematurely adopted
policies. If these policies should be changed, public confusion would result easily.

Finally, releasing these snapshot views of the negotiations would be comparable to releasing drafts of the
treaty, particularly when the notes state the tentative provisions and language agreed on. As drafts of
regulations typically are protected by the deliberative process privilege, Arthur Andersen & Co. v. Internal
Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of treaties should be accorded the same
protection. (Emphasis and underscoring supplied)

Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged
character of the deliberative process.

The Court is not unaware that in Center for International Environmental Law (CIEL), et al. v. Office of U.S. Trade
Representative38 – where the plaintiffs sought information relating to the just-completed negotiation of a United
States-Chile Free Trade Agreement – the same district court, this time under Judge Friedman, consciously refrained
from applying the doctrine in Fulbright and ordered the disclosure of the information being sought.

Since the factual milieu in CIEL seemed to call for the straight application of the doctrine in Fulbright, a discussion of
why the district court did not apply the same would help illumine this Court’s own reasons for deciding the present
case along the lines of Fulbright.

In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding information, namely,
Exemption 5 of the Freedom of Information Act (FOIA).39 In order to qualify for protection under Exemption 5, a
document must satisfy two conditions: (1) it must be either inter-agency or intra-agency in nature, and (2) it must
be both pre-decisional and part of the agency's deliberative or decision-making process.40

Judge Friedman, in CIEL, himself cognizant of a "superficial similarity of context" between the two cases, based his
decision on what he perceived to be a significant distinction: he found the negotiator’s notes that were sought
in Fulbright to be "clearly internal," whereas the documents being sought in CIEL were those produced by or
 Page 111 of 122

exchanged with an outside party, i.e. Chile. The documents subject of Fulbright being clearly internal in character,
the question of disclosure therein turned not on the threshold requirement of Exemption 5 that the document be
inter-agency, but on whether the documents were part of the agency's pre-decisional deliberative process. On this
basis, Judge Friedman found that "Judge Green's discussion [in Fulbright] of the harm that could result from
disclosure therefore is irrelevant, since the documents at issue [in CIEL] are not inter-agency, and the Court
does not reach the question of deliberative process." (Emphasis supplied)

In fine, Fulbright was not overturned. The court in CIEL merely found the same to be irrelevant in light of its distinct
factual setting. Whether this conclusion was valid – a question on which this Court would not pass – the ruling
in Fulbright that "[n]egotiations between two countries to draft a treaty represent a true example of a deliberative
process" was left standing, since the CIEL court explicitly stated that it did not reach the question of deliberative
process.

Going back to the present case, the Court recognizes that the information sought by petitioners includes documents
produced and communicated by a party external to the Philippine government, namely, the Japanese
representatives in the JPEPA negotiations, and to that extent this case is closer to the factual circumstances
of CIEL than those of Fulbright.

Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle articulated
in Fulbright that the public policy underlying the deliberative process privilege requires that diplomatic negotiations
should also be accorded privileged status, even if the documents subject of the present case cannot be described
as purely internal in character.

It need not be stressed that in CIEL, the court ordered the disclosure of information based on its finding that the first
requirement of FOIA Exemption 5 – that the documents be inter-agency – was not met. In determining whether the
government may validly refuse disclosure of the exchanges between the U.S. and Chile, it necessarily had to deal
with this requirement, it being laid down by a statute binding on them.

In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory requirement similar to
FOIA Exemption 5 in particular. Hence, Philippine courts, when assessing a claim of privilege for diplomatic
negotiations, are more free to focus directly on the issue of whether the privilege being claimed is indeed supported
by public policy, without having to consider – as the CIEL court did – if these negotiations fulfill a formal requirement
of being "inter-agency." Important though that requirement may be in the context of domestic negotiations, it need
not be accorded the same significance when dealing with international negotiations.

There being a public policy supporting a privilege for diplomatic negotiations for the reasons explained above, the
Court sees no reason to modify, much less abandon, the doctrine in PMPF v. Manglapus.

A second point petitioners proffer in their attempt to differentiate  PMPF v. Manglapus  from the present case is the
fact that the petitioners therein consisted entirely of members of the mass media, while petitioners in the present
case include members of the House of Representatives who invoke their right to information not just as citizens but
as members of Congress.

Petitioners thus conclude that the present case involves the right of members of Congress to demand information on
negotiations of international trade agreements from the Executive branch, a matter which was not raised in  PMPF v.
Manglapus.

While indeed the petitioners in PMPF v. Manglapus consisted only of members of the mass media, it would be
incorrect to claim that the doctrine laid down therein has no bearing on a controversy such as the present, where the
demand for information has come from members of Congress, not only from private citizens.

The privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect
simply because the same privilege is now being claimed under different circumstances. The probability of the
claim succeeding in the new context might differ, but to say that the privilege, as such, has no validity at all in that
context is another matter altogether.
 Page 112 of 122

The Court’s statement in Senate v. Ermita that "presidential refusals to furnish information may be actuated by any
of at least three distinct kinds of considerations [state secrets privilege, informer’s privilege, and a generic privilege
for internal deliberations], and may be asserted, with differing degrees of success, in the context of either judicial
or legislative investigations,"41 implies that a privilege, once recognized, may be invoked under different procedural
settings. That this principle holds true particularly with respect to diplomatic negotiations may be inferred
from PMPF v. Manglapus itself, where the Court held that it is the President alone who negotiates treaties, and not
even the Senate or the House of Representatives,  unless asked, may intrude upon that process.

Clearly, the privilege for diplomatic negotiations may be invoked not only against citizens’ demands for information,
but also in the context of legislative investigations.

Hence, the recognition granted in PMPF v. Manglapus to the privileged character of diplomatic negotiations cannot
be considered irrelevant in resolving the present case, the contextual differences between the two cases
notwithstanding.

As third and last point raised against the application of  PMPF v. Manglapus in this case, petitioners proffer that "the
socio-political and historical contexts of the two cases are worlds apart." They claim that the constitutional traditions
and concepts prevailing at the time PMPF v. Manglapus came about, particularly the school of thought that the
requirements of foreign policy and the ideals of transparency were incompatible with each other or the
"incompatibility hypothesis," while valid when international relations were still governed by power, politics and wars,
are no longer so in this age of international cooperation. 42

Without delving into petitioners’ assertions respecting the "incompatibility hypothesis," the Court notes that the ruling
in PMPF v. Manglapus is grounded more on the nature of treaty negotiations as such than on a particular socio-
political school of thought. If petitioners are suggesting that the nature of treaty negotiations have so changed that
"[a]n ill-timed speech by one of the parties or a frank declaration of the concession which are exacted or offered on
both sides" no longer "lead[s] to widespread propaganda to block the negotiations," or that parties in treaty
negotiations no longer expect their communications to be governed by historic confidentiality, the burden is on them
to substantiate the same. This petitioners failed to discharge.

Whether the privilege applies only at certain stages of the negotiation process

Petitioners admit that "diplomatic negotiations on the JPEPA are entitled to a reasonable amount of confidentiality
so as not to jeopardize the diplomatic process." They argue, however, that the same is privileged "only at certain
stages of the negotiating process, after which such information must necessarily be revealed to the public." 43 They
add that the duty to disclose this information was vested in the government when the negotiations moved from the
formulation and exploratory stage to the firming up of definite propositions or official recommendations,
citing Chavez v. PCGG44 and Chavez v. PEA.45

The following statement in Chavez v. PEA, however, suffices to show that the doctrine in both that case and Chavez
v. PCGG with regard to the duty to disclose "definite propositions of the government" does not apply to diplomatic
negotiations:

We rule, therefore, that the constitutional right to information includes official information on on-going
negotiations before a final contract. The information, however, must constitute definite propositions by the
government and should not cover recognized exceptions  like privileged information, military and diplomatic
secrets and similar matters affecting national security and public order. x x x46 (Emphasis and underscoring
supplied)

It follows from this ruling that even definite propositions of the government may not be disclosed if they fall under
"recognized exceptions." The privilege for diplomatic negotiations is clearly among the recognized exceptions, for
the footnote to the immediately quoted ruling cites PMPF v. Manglapus itself as an authority.

Whether there is sufficient public interest to overcome the claim of privilege

 Page 113 of 122

It being established that diplomatic negotiations enjoy a presumptive privilege against disclosure, even against the
demands of members of Congress for information, the Court shall now determine whether petitioners have shown
the existence of a public interest sufficient to overcome the privilege in this instance.

To clarify, there are at least two kinds of public interest that must be taken into account. One is the presumed public
interest in favor of keeping the subject information confidential, which is the reason for the privilege in the first
place, and the other is the public interest in favor of disclosure, the existence of which must be shown by the party
asking for information. 47

The criteria to be employed in determining whether there is a sufficient public interest in favor of disclosure may be
gathered from cases such as U.S. v. Nixon,48 Senate Select Committee on Presidential Campaign Activities v.
Nixon,49 and In re Sealed Case.50

U.S. v. Nixon, which involved a claim of the presidential communications privilege against the subpoena duces
tecum of a district court in a criminal case, emphasized the need to balance such claim of privilege against the
constitutional duty of courts to ensure a fair administration of criminal justice.

x x x the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut
deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A
President’s acknowledged need for confidentiality in the communications of his office is general in nature,
whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific
and central to the fair adjudication of a particular criminal case in the administration of justice . Without
access to specific facts a criminal prosecution may be totally frustrated. The President’s broad interest in
confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily
shown to have some bearing on the pending criminal cases. (Emphasis, italics and underscoring supplied)

Similarly, Senate Select Committee v. Nixon,51 which involved a claim of the presidential communications privilege
against the subpoena duces tecum of a Senate committee, spoke of the need to balance such claim with the duty of
Congress to perform its legislative functions.

The staged decisional structure established in Nixon v. Sirica was designed to ensure that the President and those
upon whom he directly relies in the performance of his duties could continue to work under a general assurance that
their deliberations would remain confidential. So long as the presumption that the public interest favors
confidentiality can be defeated only by a strong showing of need by another institution of government- a
showing that the responsibilities of that institution cannot responsibly be fulfilled without access to records
of the President's deliberations- we believed in Nixon v. Sirica, and continue to believe, that the effective
functioning of the presidential office will not be impaired. x x x

xxxx

The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the
subpoenaed materials are critical to the performance of its legislative functions. x x x (Emphasis and
underscoring supplied)

In re Sealed Case52 involved a claim of the deliberative process and presidential communications privileges against
a subpoena duces tecum of a grand jury. On the claim of deliberative process privilege, the court stated:

The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need.
This need determination is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the deliberative
process privilege] is asserted the district court must undertake a fresh balancing of the competing interests,"  taking
into account factors such as "the relevance of the evidence," "the availability of other evidence," "the
seriousness of the litigation," "the role of the government," and the "possibility of future timidity by
government employees. x x x (Emphasis, italics and underscoring supplied)
 Page 114 of 122

Petitioners have failed to present the strong and "sufficient showing of need" referred to in the immediately cited
cases. The arguments they proffer to establish their entitlement to the subject documents fall short of this standard.

Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA negotiation process
effectively results in the bargaining away of their economic and property rights without their knowledge and
participation, in violation of the due process clause of the Constitution. They claim, moreover, that it is essential for
the people to have access to the initial offers exchanged during the negotiations since only through such disclosure
can their constitutional right to effectively participate in decision-making be brought to life in the context of
international trade agreements.

Whether it can accurately be said that the Filipino people were not involved in the JPEPA negotiations is a question
of fact which this Court need not resolve. Suffice it to state that respondents had presented documents purporting to
show that public consultations were conducted on the JPEPA. Parenthetically, petitioners consider these "alleged
consultations" as "woefully selective and inadequate." 53

AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and Japanese representatives
have not been disclosed to the public, the Court shall pass upon the issue of whether access to the documents
bearing on them is, as petitioners claim, essential to their right to participate in decision-making.

The case for petitioners has, of course, been immensely weakened by the disclosure of the full text of the JPEPA to
the public since September 11, 2006, even as it is still being deliberated upon by the Senate and, therefore, not yet
binding on the Philippines. Were the Senate to concur with the validity of the JPEPA at this moment, there has
already been, in the words of PMPF v. Manglapus, "ample opportunity for discussion before [the treaty] is
approved."

The text of the JPEPA having been published, petitioners have failed to convince this Court that they will not be able
to meaningfully exercise their right to participate in decision-making unless the initial offers are also published.

It is of public knowledge that various non-government sectors and private citizens have already publicly expressed
their views on the JPEPA, their comments not being limited to general observations thereon but on its specific
provisions. Numerous articles and statements critical of the JPEPA have been posted on the Internet. 54 Given these
developments, there is no basis for petitioners’ claim that access to the Philippine and Japanese offers is essential
to the exercise of their right to participate in decision-making.

Petitioner-members of the House of Representatives additionally anchor their claim to have a right to the subject
documents on the basis of Congress’ inherent power to regulate commerce, be it domestic or international. They
allege that Congress cannot meaningfully exercise the power to regulate international trade agreements such as the
JPEPA without being given copies of the initial offers exchanged during the negotiations thereof. In the same vein,
they argue that the President cannot exclude Congress from the JPEPA negotiations since whatever power and
authority the President has to negotiate international trade agreements is derived only by delegation of Congress,
pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of Presidential Decree No. 1464. 55

The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and international
agreements, but the power to fix tariff rates, import and export quotas, and other taxes. Thus it provides:

(2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations
and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other
duties or imposts within the framework of the national development program of the Government.

As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII – the article on the
Executive Department – which states:

No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the
Members of the Senate.
 Page 115 of 122

The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the President, being the sole organ
of the nation in its external relations, was echoed in BAYAN v. Executive Secretary56 where the Court held:

By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and
authority in the external affairs of the country. In many ways, the President is the chief architect of the nation's
foreign policy; his "dominance in the field of foreign relations is (then) conceded." Wielding vast powers and
influence, his conduct in the external affairs of the nation, as Jefferson describes, is "executive altogether."

As regards the power to enter into treaties or international agreements, the Constitution vests the same in
the President, subject only to the concurrence of at least two thirds vote of all the members of the Senate. In
this light, the negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which
pertain solely to the President, in the lawful exercise of his vast executive and diplomatic powers granted him
no less than by the fundamental law itself. Into the field of negotiation the Senate cannot intrude, and
Congress itself is powerless to invade it. x x x (Italics in the original; emphasis and underscoring supplied)

The same doctrine was reiterated even more recently in Pimentel v. Executive Secretary57 where the Court ruled:

In our system of government, the President, being the head of state, is regarded as the sole organ and authority
in external relations and is the country's sole representative with foreign nations. As the chief architect of
foreign policy, the President acts as the country's mouthpiece with respect to international affairs. Hence,  the
President is vested with the authority to deal with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign
relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states.

Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution
provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for
the validity of the treaty entered into by him. x x x (Emphasis and underscoring supplied)

While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the
President only by delegation of that body, it has long been recognized that the power to enter into treaties is vested
directly and exclusively in the President, subject only to the concurrence of at least two-thirds of all the Members of
the Senate for the validity of the treaty. In this light, the authority of the President to enter into trade agreements with
foreign nations provided under P.D. 1464 58 may be interpreted as an acknowledgment of a power already inherent
in its office. It may not be used as basis to hold the President or its representatives accountable to Congress for the
conduct of treaty negotiations.

This is not to say, of course, that the President’s power to enter into treaties is unlimited but for the requirement of
Senate concurrence, since the President must still ensure that all treaties will substantively conform to all the
relevant provisions of the Constitution.

It follows from the above discussion that Congress, while possessing vast legislative powers, may not interfere in
the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only to
the validity of the treaty under consideration, not to the conduct of negotiations attendant to its conclusion.
Moreover, it is not even Congress as a whole that has been given the authority to concur as a means of checking
the treaty-making power of the President, but only the Senate.

Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of the House of
Representatives fail to present a "sufficient showing of need" that the information sought is critical to the
performance of the functions of Congress, functions that do not include treaty-negotiation.

Respondents’ alleged failure to timely claim executive privilege

On respondents’ invocation of executive privilege, petitioners find the same defective, not having been done
seasonably as it was raised only in their Comment to the present petition and not during the House Committee
hearings.
 Page 116 of 122

That respondents invoked the privilege for the first time only in their Comment to the present petition does not mean
that the claim of privilege should not be credited. Petitioners’ position presupposes that an assertion of the privilege
should have been made during the House Committee investigations, failing which respondents are deemed to have
waived it.

When the House Committee and petitioner-Congressman Aguja requested respondents for copies of the documents
subject of this case, respondents replied that the negotiations were still on-going and that the draft of the JPEPA
would be released once the text thereof is settled and complete. There was no intimation that the requested copies
are confidential in nature by reason of public policy. The response may not thus be deemed a claim of privilege by
the standards of Senate v. Ermita, which recognizes as claims of privilege only those which are accompanied
by precise and certain reasons for preserving the confidentiality of the information being sought.

Respondents’ failure to claim the privilege during the House Committee hearings may not, however, be construed
as a waiver thereof by the Executive branch. As the immediately preceding paragraph indicates, what respondents
received from the House Committee and petitioner-Congressman Aguja were mere requests for information. And as
priorly stated, the House Committee itself refrained from pursuing its earlier resolution to issue a subpoena duces
tecum on account of then Speaker Jose de Venecia’s alleged request to Committee Chairperson Congressman
Teves to hold the same in abeyance.

While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to executive officials – out of
respect for their office – until resort to it becomes necessary, the fact remains that such requests are not a
compulsory process. Being mere requests, they do not strictly call for an assertion of executive privilege.

The privilege is an exemption to Congress’ power of inquiry. 59 So long as Congress itself finds no cause to enforce
such power, there is no strict necessity to assert the privilege. In this light, respondents’ failure to invoke the
privilege during the House Committee investigations did not amount to a waiver thereof.

The Court observes, however, that the claim of privilege appearing in respondents’ Comment to this petition fails to
satisfy in full the requirement laid down in Senate v. Ermita that the claim should be invoked by the President or
through the Executive Secretary "by order of the President."60 Respondents’ claim of privilege is being sustained,
however, its flaw notwithstanding, because of circumstances peculiar to the case.

The assertion of executive privilege by the Executive Secretary, who is one of the respondents herein, without him
adding the phrase "by order of the President," shall be considered as partially complying with the requirement laid
down in Senate v. Ermita. The requirement that the phrase "by order of the President" should accompany the
Executive Secretary’s claim of privilege is a new rule laid down for the first time in Senate v. Ermita, which was not
yet final and executory at the time respondents filed their Comment to the petition. 61 A strict application of this
requirement would thus be unwarranted in this case.

Response to the Dissenting Opinion of the Chief Justice

We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our people’s right to
information against any abuse of executive privilege. It is a zeal that We fully share.

The Court, however, in its endeavor to guard against the abuse of executive privilege, should be careful not to veer
towards the opposite extreme, to the point that it would strike down as invalid even a legitimate exercise thereof.

We respond only to the salient arguments of the Dissenting Opinion which have not yet been sufficiently addressed
above.

1. After its historical discussion on the allocation of power over international trade agreements in the United States,
the dissent concludes that "it will be turning somersaults with history to contend that the President is the sole organ
for external relations" in that jurisdiction. With regard to this opinion, We make only the following observations:
 Page 117 of 122

There is, at least, a core meaning of the phrase "sole organ of the nation in its external relations" which is not being
disputed, namely, that the power to directly negotiate treaties and international agreements is vested by our
Constitution only in the Executive. Thus, the dissent states that "Congress has the power to regulate commerce with
foreign nations but does not have the power to negotiate international agreements directly."62

What is disputed is how this principle applies to the case at bar.

The dissent opines that petitioner-members of the House of Representatives, by asking for the subject JPEPA
documents, are not seeking to directly participate in the negotiations of the JPEPA, hence, they cannot be
prevented from gaining access to these documents.

On the other hand, We hold that this is one occasion where the following ruling in Agan v. PIATCO63 – and in other
cases both before and since – should be applied:

This Court has long and consistently adhered to the legal maxim that those that cannot be done directly
cannot be done indirectly. To declare the PIATCO contracts valid despite the clear statutory prohibition against a
direct government guarantee would not only make a mockery of what the BOT Law seeks to prevent -- which is to
expose the government to the risk of incurring a monetary obligation resulting from a contract of loan between the
project proponent and its lenders and to which the Government is not a party to -- but would also render the BOT
Law useless for what it seeks to achieve –- to make use of the resources of the private sector in the "financing,
operation and maintenance of infrastructure and development projects" which are necessary for national growth and
development but which the government, unfortunately, could ill-afford to finance at this point in time. 64

Similarly, while herein petitioners-members of the House of Representatives may not have been aiming to
participate in the negotiations directly, opening the JPEPA negotiations to their scrutiny – even to the point of giving
them access to the offers exchanged between the Japanese and Philippine delegations – would have made a
mockery of what the Constitution sought to prevent and rendered it useless for what it sought to achieve when it
vested the power of direct negotiation solely with the President.

What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-making power of the
President, which our Constitution similarly defines, may be gathered from Hamilton’s explanation of why the U.S.
Constitution excludes the House of Representatives from the treaty-making process:

x x x The fluctuating, and taking its future increase into account, the multitudinous composition of that body, forbid
us to expect in it those qualities which are essential to the proper execution of such a trust . Accurate and
comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and
uniform sensibility to national character, decision, secrecy  and dispatch; are incompatible with a body so variable
and so numerous. The very complication of the business by introducing a necessity of the concurrence of so many
different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the house of
representatives, and the greater length of time which it would often be necessary to keep them together when
convened, to obtain their sanction in the progressive stages of a treaty, would be source of so great inconvenience
and expense, as alone ought to condemn the project.65

These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike that of the U.S.,
does not even grant the Senate the power to advise the Executive in the making of treaties, but only vests in that
body the power to concur in the validity of the treaty after negotiations have been concluded. 66 Much less, therefore,
should it be inferred that the House of Representatives has this power.

Since allowing petitioner-members of the House of Representatives access to the subject JPEPA documents would
set a precedent for future negotiations, leading to the contravention of the public interests articulated above which
the Constitution sought to protect, the subject documents should not be disclosed.

2. The dissent also asserts that respondents can no longer claim the diplomatic secrets privilege over the subject
JPEPA documents now that negotiations have been concluded, since their reasons for nondisclosure cited in the
 Page 118 of 122

June 23, 2005 letter of Sec. Ermita, and later in their Comment, necessarily apply only for as long as the
negotiations were still pending;

In their Comment, respondents contend that "the negotiations of the representatives of the Philippines as well as of
Japan must be allowed to explore alternatives in the course of the negotiations  in the same manner as judicial
deliberations and working drafts of opinions are accorded strict confidentiality." That respondents liken the
documents involved in the JPEPA negotiations to judicial deliberations and working drafts of opinions
evinces, by itself, that they were claiming confidentiality not only until, but even after, the conclusion of the
negotiations.

Judicial deliberations do not lose their confidential character once a decision has been promulgated by the courts.
The same holds true with respect to working drafts of opinions, which are comparable to intra-
agency recommendations. Such intra-agency recommendations are privileged even after the position under
consideration by the agency has developed into a definite proposition, hence, the rule in this jurisdiction that
agencies have the duty to disclose only definite propositions, and not the inter-agency and intra-agency
communications during the stage when common assertions are still being formulated. 67

3. The dissent claims that petitioner-members of the House of Representatives have sufficiently shown their need
for the same documents to overcome the privilege. Again, We disagree.

The House Committee that initiated the investigations on the JPEPA did not pursue its earlier intention to subpoena
the documents. This strongly undermines the assertion that access to the same documents by the House
Committee is critical to the performance of its legislative functions. If the documents were indeed critical, the House
Committee should have, at the very least, issued a subpoena duces tecum or, like what the Senate did in Senate v.
Ermita, filed the present petition as a legislative body, rather than leaving it to the discretion of individual
Congressmen whether to pursue an action or not. Such acts would have served as strong indicia that Congress
itself finds the subject information to be critical to its legislative functions.

Further, given that respondents have claimed executive privilege, petitioner-members of the House of
Representatives should have, at least, shown how its lack of access to the Philippine and Japanese offers would
hinder the intelligent crafting of legislation. Mere assertion that the JPEPA covers a subject matter over which
Congress has the power to legislate would not suffice. As Senate Select Committee v. Nixon68 held, the showing
required to overcome the presumption favoring confidentiality turns, not only on the nature and appropriateness of
the function in the performance of which the material was sought, but also the degree to which the material was
necessary to its fulfillment. This petitioners failed to do.

Furthermore, from the time the final text of the JPEPA including its annexes and attachments was published,
petitioner-members of the House of Representatives have been free to use it for any legislative purpose they may
see fit. Since such publication, petitioners’ need, if any, specifically for the Philippine and Japanese offers leading to
the final version of the JPEPA, has become even less apparent.

In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents, the dissent contends
that the Executive has failed to show how disclosing them after the conclusion of negotiations would impair the
performance of its functions. The contention, with due respect, misplaces the onus probandi. While, in keeping with
the general presumption of transparency, the burden is initially on the Executive to provide precise and certain
reasons for upholding its claim of privilege, once the Executive is able to show that the documents being sought are
covered by a recognized privilege, the burden shifts to the party seeking information to overcome the privilege by a
strong showing of need.

When it was thus established that the JPEPA documents are covered by the privilege for diplomatic negotiations
pursuant to PMPF v. Manglapus, the presumption arose that their disclosure would impair the performance of
executive functions. It was then incumbent on petitioner- requesting parties to show that they have a strong need for
the information sufficient to overcome the privilege. They have not, however.
 Page 119 of 122

4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming the privilege "by order of the
President," the same may not be strictly applied to the privilege claim subject of this case.

When the Court in Senate v. Ermita limited the power of invoking the privilege to the President alone, it was laying
down a new rule for which there is no counterpart even in the United States from which the concept of executive
privilege was adopted. As held in the 2004 case of Judicial Watch, Inc. v. Department of Justice,69 citing In re
Sealed Case,70 "the issue of whether a President must personally invoke the [presidential communications] privilege
remains an open question." U.S. v. Reynolds,71 on the other hand, held that "[t]here must be a formal claim of
privilege, lodged by the head of the department which has control over the matter, after actual personal
consideration by that officer."

The rule was thus laid down by this Court, not in adherence to any established precedent, but with the aim of
preventing the abuse of the privilege in light of its highly exceptional nature. The Court’s recognition that the
Executive Secretary also bears the power to invoke the privilege, provided he does so "by order of the President," is
meant to avoid laying down too rigid a rule, the Court being aware that it was laying down a new restriction on
executive privilege. It is with the same spirit that the Court should not be overly strict with applying the same rule in
this peculiar instance, where the claim of executive privilege occurred before the judgment in  Senate v.
Ermita became final.

5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent implies that the Court
therein erred in citing US v. Curtiss Wright72 and the book entitled The New American Government and Its
Work73 since these authorities, so the dissent claims, may not be used to calibrate the importance of the right to
information in the Philippine setting.

The dissent argues that since Curtiss-Wright referred to a conflict between the executive and legislative branches of
government, the factual setting thereof was different from that of PMPF v. Manglapus which involved a collision
between governmental power over the conduct of foreign affairs and the citizen’s right to information.

That the Court could freely cite Curtiss-Wright – a case that upholds the secrecy of diplomatic negotiations
against congressional demands for information – in the course of laying down a ruling on the public right to
information only serves to underscore the principle mentioned earlier that the privileged character accorded to
diplomatic negotiations does not ipso facto lose all force and effect simply because the same privilege is now being
claimed under different circumstances.

PMPF v. Manglapus indeed involved a demand for information from private citizens and not an executive-legislative
conflict, but so did Chavez v. PEA74 which held that "the [public’s] right to information . . . does not extend to matters
recognized as privileged information under the separation of powers." What counts as privileged information in an
executive-legislative conflict is thus also recognized as such in cases involving the public’s right to information.

Chavez v. PCGG75 also involved the public’s right to information, yet the Court recognized as a valid limitation to
that right the same privileged information based on separation of powers – closed-door Cabinet meetings, executive
sessions of either house of Congress, and the internal deliberations of the Supreme Court.

These cases show that the Court has always regarded claims of privilege, whether in the context of an executive-
legislative conflict or a citizen’s demand for information, as closely intertwined, such that the principles applicable to
one are also applicable to the other.

The reason is obvious. If the validity of claims of privilege were to be assessed by entirely different criteria in each
context, this may give rise to the absurd result where Congress would be denied access to a particular information
because of a claim of executive privilege, but the general public would have access to the same information, the
claim of privilege notwithstanding.

Absurdity would be the ultimate result if, for instance, the Court adopts the "clear and present danger" test for the
assessment of claims of privilege against citizens’ demands for information. If executive information, when
demanded by a citizen, is privileged only when there is a clear and present danger of a substantive evil that the
 Page 120 of 122

State has a right to prevent, it would be very difficult for the Executive to establish the validity of its claim in each
instance. In contrast, if the demand comes from Congress, the Executive merely has to show that the information is
covered by a recognized privilege in order to shift the burden on Congress to present a strong showing of need.
This would lead to a situation where it would be more difficult for Congress to access executive information than it
would be for private citizens.

We maintain then that when the Executive has already shown that an information is covered by executive privilege,
the party demanding the information must present a "strong showing of need," whether that party is Congress or a
private citizen.

The rule that the same "showing of need" test applies in both these contexts, however, should not be construed as a
denial of the importance of analyzing the context in which an executive privilege controversy may happen to be
placed. Rather, it affirms it, for it means that the specific need being shown by the party seeking information in
every particular instance is highly significant in determining whether to uphold a claim of privilege. This "need" is,
precisely, part of the context in light of which every claim of privilege should be assessed.

Since, as demonstrated above, there are common principles that should be applied to executive privilege
controversies across different contexts, the Court in PMPF v. Manglapus did not err when it cited the Curtiss-
Wright case.

The claim that the book cited in PMPF v. Manglapus entitled The New American Government and Its Work could not
have taken into account the expanded statutory right to information in the FOIA assumes that the observations in
that book in support of the confidentiality of treaty negotiations would be different had it been written after the FOIA.
Such assumption is, with due respect, at best, speculative.

As to the claim in the dissent that "[i]t is more doubtful if the same book be used to calibrate the importance of the
right of access to information in the Philippine setting considering its elevation as a constitutional right," we submit
that the elevation of such right as a constitutional right did not set it free from the legitimate restrictions of executive
privilege which is itself constitutionally-based. 76 Hence, the comments in that book which were cited in PMPF v.
Manglapus remain valid doctrine.

6. The dissent further asserts that the Court has never used "need" as a test to uphold or allow inroads into rights
guaranteed under the Constitution. With due respect, we assert otherwise. The Court has done so before, albeit
without using the term "need."

In executive privilege controversies, the requirement that parties present a "sufficient showing of need" only means,
in substance, that they should show a public interest in favor of disclosure sufficient in degree to overcome the claim
of privilege.77 Verily, the Court in such cases engages in a balancing of interests. Such a balancing of interests is
certainly not new in constitutional adjudication involving fundamental rights. Secretary of Justice v. Lantion, 78 which
was cited in the dissent, applied just such a test.

Given that the dissent has clarified that it does not seek to apply the "clear and present danger" test to the present
controversy, but the balancing test, there seems to be no substantial dispute between the position laid down in
this ponencia and that reflected in the dissent as to what test to apply. It would appear that the only disagreement is
on the results of applying that test in this instance.

The dissent, nonetheless, maintains that "it suffices that information is of public concern for it to be covered by the
right, regardless of the public’s need for the information," and that the same would hold true even "if they simply
want to know it because it interests them." As has been stated earlier, however, there is no dispute that the
information subject of this case is a matter of public concern. The Court has earlier concluded that it is a matter of
public concern, not on the basis of any specific need shown by petitioners, but from the very nature of the JPEPA as
an international trade agreement.

However, when the Executive has – as in this case – invoked the privilege, and it has been established that the
subject information is indeed covered by the privilege being claimed, can a party overcome the same by merely
 Page 121 of 122

asserting that the information being demanded is a matter of public concern, without any further showing required?
Certainly not, for that would render the doctrine of executive privilege of no force and effect whatsoever as a
limitation on the right to information, because then the sole test in such controversies would be whether an
information is a matter of public concern.

Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the documents of the JPEPA
negotiations, the Philippine government runs the grave risk of betraying the trust reposed in it by the Japanese
representatives, indeed, by the Japanese government itself. How would the Philippine government then explain
itself when that happens? Surely, it cannot bear to say that it just had to release the information because certain
persons simply wanted to know it "because it interests them."

Thus, the Court holds that, in determining whether an information is covered by the right to information, a specific
"showing of need" for such information is not a relevant consideration, but only whether the same is a matter
of public concern. When, however, the government has claimed executive privilege, and it has established that the
information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must show
that that the information is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively and
reasonably participate in social, political, and economic decision-making. 79

7. The dissent maintains that "[t]he treaty has thus entered the ultimate stage where the people can exercise
their right to participate in the discussion whether the Senate should concur in its ratification or not." (Emphasis
supplied) It adds that this right "will be diluted unless the people can have access to the subject JPEPA documents".
What, to the dissent, is a dilution of the right to participate in decision-making is, to Us, simply a recognition of the
qualified nature of the public’s right to information. It is beyond dispute that the right to information is not absolute
and that the doctrine of executive privilege is a recognized limitation on that right.

Moreover, contrary to the submission that the right to participate in decision-making would be diluted, We reiterate
that our people have been exercising their right to participate in the discussion on the issue of the JPEPA, and they
have been able to articulate their different opinions without need of access to the JPEPA negotiation documents.

Thus, we hold that the balance in this case tilts in favor of executive privilege.

8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select Committee case, and In re
Sealed Case, are similarly applicable to the present controversy, the dissent cites the caveat in the  Nixon case that
the U.S. Court was there addressing only the President’s assertion of privilege in the context of a criminal trial, not a
civil litigation nor a congressional demand for information. What this caveat means, however, is only that courts
must be careful not to hastily apply the ruling therein to other contexts. It does not, however, absolutely mean that
the principles applied in that case may never be applied in such contexts.

Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of executive privilege in contexts
other than a criminal trial, as in the case of Nixon v. Administrator of General Services 80 – which involved former
President Nixon’s invocation of executive privilege to challenge the constitutionality of the "Presidential Recordings
and Materials Preservation Act"81 – and the above-mentioned In re Sealed Case which involved a claim of privilege
against a subpoena duces tecum issued in a grand jury investigation.

Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the other cases already
mentioned, We are merely affirming what the Chief Justice stated in his Dissenting Opinion in Neri v. Senate
Committee on Accountability82 – a case involving an executive-legislative conflict over executive privilege. That
dissenting opinion stated that, while Nixon was not concerned with the balance between the President’s generalized
interest in confidentiality and congressional demands for information, "[n]onetheless the [U.S.] Court laid down
principles and procedures that can serve as torch lights to illumine us on the scope and use of Presidential
communication privilege in the case at bar."83 While the Court was divided in Neri, this opinion of the Chief
Justice was not among the points of disagreement, and We similarly hold now that the  Nixon case is a useful guide
in the proper resolution of the present controversy, notwithstanding the difference in context.
 Page 122 of 122

Verily, while the Court should guard against the abuse of executive privilege, it should also give full
recognition to the validity of the privilege whenever it is claimed within the proper bounds of executive
power, as in this case. Otherwise, the Court would undermine its own credibility, for it would be perceived as no
longer aiming to strike a balance, but seeking merely to water down executive privilege to the point of irrelevance.

Conclusion

To recapitulate, petitioners’ demand to be furnished with a copy of the full text of the JPEPA has become moot and
academic, it having been made accessible to the public since September 11, 2006. As for their demand for copies
of the Philippine and Japanese offers submitted during the JPEPA negotiations, the same must be denied,
respondents’ claim of executive privilege being valid.

Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v. Manglapus on September 13,
1988, been recognized as privileged in this jurisdiction and the reasons proffered by petitioners against the
application of the ruling therein to the present case have not persuaded the Court. Moreover, petitioners – both
private citizens and members of the House of Representatives – have failed to present a "sufficient showing of
need" to overcome the claim of privilege in this case.

That the privilege was asserted for the first time in respondents’ Comment to the present petition, and not during the
hearings of the House Special Committee on Globalization, is of no moment, since it cannot be interpreted as a
waiver of the privilege on the part of the Executive branch.

For reasons already explained, this Decision shall not be interpreted as departing from the ruling in  Senate v.
Ermita that executive privilege should be invoked by the President or through the Executive Secretary "by order of
the President."

WHEREFORE, the petition is DISMISSED.

SO ORDERED.