G.R. No.
L-63915 April 24, 1985 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786,
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to
the President, HON. JOAQUIN VENUS, in his capacity as Deputy
Executive Assistant to the President , MELQUIADES P. DE LA
CRUZ, in his capacity as Director, Malacañang Records Office,
and FLORENDO S. PABLO, in his capacity as Director, Bureau of
Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public
concern, a right recognized in Section 6, Article IV of the 1973
Philippine Constitution, 1 as well as the principle that laws to be
valid and enforceable must be published in the Official Gazette or
otherwise effectively promulgated, petitioners seek a writ of
mandamus to compel respondent public officials to publish, and/or
cause the publication in the Official Gazette of various presidential
decrees, letters of instructions, general orders, proclamations,
executive orders, letter of implementation and administrative
orders.
Specifically, the publication of the following presidential issuances
is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179,
184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337,
355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447,
473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599,
644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935,
961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242,
1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-
1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130,
136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199,
202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-
245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289,
291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346,
349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-
440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587,
594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702,
712-713, 726, 837-839, 878-879, 881, 882, 939-940,
964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281,
1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558,
1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-
1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742,
1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795,
1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-
1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844,
1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-
1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966,
1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-
2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471,
474-492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538,
543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594,
788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50,
51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-
433, 436-439.
The respondents, through the Solicitor General, would have this
case dismissed outright on the ground that petitioners have no
legal personality or standing to bring the instant petition. The view
is submitted that in the absence of any showing that petitioners
are personally and directly affected or prejudiced by the alleged
non-publication of the presidential issuances in question 2 said
petitioners are without the requisite legal personality to institute
this mandamus proceeding, they are not being "aggrieved parties"
within the meaning of Section 3, Rule 65 of the Rules of Court,
which we quote:
SEC. 3. Petition for Mandamus.—When any tribunal, corporation,
board or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use
a rd enjoyment of a right or office to which such other is entitled,
and there is no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court alleging the facts with certainty
and praying that judgment be rendered commanding the
defendant, immediately or at some other specified time, to do the
act required to be done to Protect the rights of the petitioner, and
to pay the damages sustained by the petitioner by reason of the
wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of
the petition concerns a public right and its object is to compel the
performance of a public duty, they need not show any specific
interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the
1910 case of Severino vs. Governor General, 3 this Court held that
while the general rule is that "a writ of mandamus would be
granted to a private individual only in those cases where he has
some private or particular interest to be subserved, or some
particular right to be protected, independent of that which he holds
with the public at large," and "it is for the public officers exclusively
to apply for the writ when public rights are to be subserved
[Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the
question is one of public right and the object of the mandamus is
to procure the enforcement of a public duty, the people are
regarded as the real party in interest and the relator at whose
instigation the proceedings are instituted need not show that he
has any legal or special interest in the result, it being sufficient to
show that he is a citizen and as such interested in the execution of
the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope
Severino, a private individual, as a proper party to the mandamus
proceedings brought to compel the Governor General to call a
special election for the position of municipal president in the town
of Silay, Negros Occidental. Speaking for this Court, Mr. Justice
Grant T. Trent said:
We are therefore of the opinion that the weight of authority
supports the proposition that the relator is a proper party to
proceedings of this character when a public right is sought to be
enforced. If the general rule in America were otherwise, we think
that it would not be applicable to the case at bar for the reason
'that it is always dangerous to apply a general rule to a particular
case without keeping in mind the reason for the rule, because, if
under the particular circumstances the reason for the rule does
not exist, the rule itself is not applicable and reliance upon the rule
may well lead to error'
No reason exists in the case at bar for applying the general rule
insisted upon by counsel for the respondent. The circumstances
which surround this case are different from those in the United
States, inasmuch as if the relator is not a proper party to these
proceedings no other person could be, as we have seen that it is
not the duty of the law officer of the Government to appear and
represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's
legal personality in the aforementioned case apply squarely to the
present petition. Clearly, the right sought to be enforced by
petitioners herein is a public right recognized by no less than the
fundamental law of the land. If petitioners were not allowed to
institute this proceeding, it would indeed be difficult to conceive of
any other person to initiate the same, considering that the Solicitor
General, the government officer generally empowered to
represent the people, has entered his appearance for respondents
in this case.
Respondents further contend that publication in the Official
Gazette is not a sine qua non requirement for the effectivity of
laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in
question contain special provisions as to the date they are to take
effect, publication in the Official Gazette is not indispensable for
their effectivity. The point stressed is anchored on Article 2 of the
Civil Code:
Art. 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is
otherwise provided, ...
The interpretation given by respondent is in accord with this
Court's construction of said article. In a long line of decisions, 4 this
Court has ruled that publication in the Official Gazette is
necessary in those cases where the legislation itself does not
provide for its effectivity date-for then the date of publication is
material for determining its date of effectivity, which is the fifteenth
day following its publication-but not when the law itself provides
for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar
as it equates the effectivity of laws with the fact of publication.
Considered in the light of other statutes applicable to the issue at
hand, the conclusion is easily reached that said Article 2 does not
preclude the requirement of publication in the Official Gazette,
even if the law itself provides for the date of its effectivity. Thus,
Section 1 of Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all
important legisiative acts and resolutions of a public nature of the,
Congress of the Philippines; [2] all executive and administrative
orders and proclamations, except such as have no general
applicability; [3] decisions or abstracts of decisions of the
Supreme Court and the Court of Appeals as may be deemed by
said courts of sufficient importance to be so published; [4] such
documents or classes of documents as may be required so to be
published by law; and [5] such documents or classes of
documents as the President of the Philippines shall determine
from time to time to have general applicability and legal effect, or
which he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the
general public adequate notice of the various laws which are to
regulate their actions and conduct as citizens. Without such notice
and publication, there would be no basis for the application of the
maxim "ignorantia legis non excusat." It would be the height of
injustice to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice whatsoever, not
even a constructive one.
Perhaps at no time since the establishment of the Philippine
Republic has the publication of laws taken so vital significance
that at this time when the people have bestowed upon the
President a power heretofore enjoyed solely by the legislature.
While the people are kept abreast by the mass media of the
debates and deliberations in the Batasan Pambansa—and for the
diligent ones, ready access to the legislative records—no such
publicity accompanies the law-making process of the President.
Thus, without publication, the people have no means of knowing
what presidential decrees have actually been promulgated, much
less a definite way of informing themselves of the specific
contents and texts of such decrees. As the Supreme Court of
Spain ruled: "Bajo la denominacion generica de leyes, se
comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de
conformidad con las mismas por el Gobierno en uso de su
potestad.5
The very first clause of Section I of Commonwealth Act 638 reads:
"There shall be published in the Official Gazette ... ." The word
"shall" used therein imposes upon respondent officials an
imperative duty. That duty must be enforced if the Constitutional
right of the people to be informed on matters of public concern is
to be given substance and reality. The law itself makes a list of
what should be published in the Official Gazette. Such listing, to
our mind, leaves respondents with no discretion whatsoever as to
what must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or
"of general applicability" is mandated by law. Obviously,
presidential decrees that provide for fines, forfeitures or penalties
for their violation or otherwise impose a burden or. the people,
such as tax and revenue measures, fall within this category. Other
presidential issuances which apply only to particular persons or
class of persons such as administrative and executive orders
need not be published on the assumption that they have been
circularized to all concerned. 6
It is needless to add that the publication of presidential issuances
"of a public nature" or "of general applicability" is a requirement of
due process. It is a rule of law that before a person may be bound
by law, he must first be officially and specifically informed of its
contents. As Justice Claudio Teehankee said in Peralta vs.
COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions
which all form part of the law of the land, the requirement of due
process and the Rule of Law demand that the Official Gazette as
the official government repository promulgate and publish the
texts of all such decrees, orders and instructions so that the
people may know where to obtain their official and specific
contents.
The Court therefore declares that presidential issuances of
general application, which have not been published, shall have no
force and effect. Some members of the Court, quite apprehensive
about the possible unsettling effect this decision might have on
acts done in reliance of the validity of those presidential decrees
which were published only during the pendency of this petition,
have put the question as to whether the Court's declaration of
invalidity apply to P.D.s which had been enforced or implemented
prior to their publication. The answer is all too familiar. In similar
situations in the past this Court had taken the pragmatic and
realistic course set forth in Chicot County Drainage District vs.
Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the Act of
Congress, having been found to be unconstitutional, was not a
law; that it was inoperative, conferring no rights and imposing no
duties, and hence affording no basis for the challenged decree.
Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry.
Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that
such broad statements as to the effect of a determination of
unconstitutionality must be taken with qualifications. The actual
existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be
ignored. The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as to invalidity
may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed
to have become vested, of status, of prior determinations deemed
to have finality and acted upon accordingly, of public policy in the
light of the nature both of the statute and of its previous
application, demand examination. These questions are among the
most difficult of those which have engaged the attention of courts,
state and federal and it is manifest from numerous decisions that
an all-inclusive statement of a principle of absolute retroactive
invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs.
Esteban  9 sustained the right of a party under the Moratorium
Law, albeit said right had accrued in his favor before said law was
declared unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees
prior to their publication in the Official Gazette is "an operative fact
which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration ...
that an all-inclusive statement of a principle of absolute retroactive
invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it
appears that of the presidential decrees sought by petitioners to
be published in the Official Gazette, only Presidential Decrees
Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive,
have not been so published. 10 Neither the subject matters nor the
texts of these PDs can be ascertained since no copies thereof are
available. But whatever their subject matter may be, it is
undisputed that none of these unpublished PDs has ever been
implemented or enforced by the government. In Pesigan vs.
Angeles, 11 the Court, through Justice Ramon Aquino, ruled that
"publication is necessary to apprise the public of the contents of
[penal] regulations and make the said penalties binding on the
persons affected thereby. " The cogency of this holding is
apparently recognized by respondent officials considering the
manifestation in their comment that "the government, as a matter
of policy, refrains from prosecuting violations of criminal laws until
the same shall have been published in the Official Gazette or in
some other publication, even though some criminal laws provide
that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in
the Official Gazette all unpublished presidential issuances which
are of general application, and unless so published, they shall
have no binding force and effect.
SO ORDERED.
Separate Opinions
  FERNANDO, C.J.,  concurring (with qualification):
There is on the whole acceptance on my part of the views
expressed in the ably written opinion of Justice Escolin. I am
unable, however, to concur insofar as it would unqualifiedly
impose the requirement of publication in the Official Gazette for
unpublished "presidential issuances" to have binding force and
effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due
process question would arise if made to apply adversely to a party
who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that
such publication required need not be confined to the Official
Gazette. From the pragmatic standpoint, there is an advantage to
be gained. It conduces to certainty. That is too be admitted. It
does not follow, however, that failure to do so would in all cases
and under all circumstances result in a statute, presidential decree
or any other executive act of the same category being bereft of
any binding force and effect. To so hold would, for me, raise a
constitutional question. Such a pronouncement would lend itself to
the interpretation that such a legislative or presidential act is bereft
of the attribute of effectivity unless published in the Official
Gazette. There is no such requirement in the Constitution as
Justice Plana so aptly pointed out. It is true that what is decided
now applies only to past "presidential issuances". Nonetheless,
this clarification is, to my mind, needed to avoid any possible
misconception as to what is required for any statute or presidential
act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate
opinion of Justice Plana. Its first paragraph sets forth what to me
is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as
a prerequisite for their effectivity, unlike some Constitutions
elsewhere. It may be said though that the guarantee of due
process requires notice of laws to affected Parties before they can
be bound thereby; but such notice is not necessarily by publication
in the Official Gazette. The due process clause is not that
precise. 1 I am likewise in agreement with its closing paragraph:
"In fine, I concur in the majority decision to the extent that it
requires notice before laws become effective, for no person
should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as
the command of the government "must be ascertainable in some
form if it is to be enforced at all. 3 It would indeed be to reduce it to
the level of mere futility, as pointed out by Justice Cardozo, "if it is
unknown and unknowable. 4 Publication, to repeat, is thus
essential. What I am not prepared to subscribe to is the doctrine
that it must be in the Official Gazette. To be sure once published
therein there is the ascertainable mode of determining the exact
date of its effectivity. Still for me that does not dispose of the
question of what is the jural effect of past presidential decrees or
executive acts not so published. For prior thereto, it could be that
parties aware of their existence could have conducted themselves
in accordance with their provisions. If no legal consequences
could attach due to lack of publication in the Official Gazette, then
serious problems could arise. Previous transactions based on
such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to
hold that such an effect is contemplated by our decision. Where
such presidential decree or executive act is made the basis of a
criminal prosecution, then, of course, its ex post facto character
becomes evident. 5 In civil cases though, retroactivity as such is
not conclusive on the due process aspect. There must still be a
showing of arbitrariness. Moreover, where the challenged
presidential decree or executive act was issued under the police
power, the non-impairment clause of the Constitution may not
always be successfully invoked. There must still be that process of
balancing to determine whether or not it could in such a case be
tainted by infirmity. 6 In traditional terminology, there could arise
then a question of unconstitutional application. That is as far as it
goes.
4. Let me make therefore that my qualified concurrence goes no
further than to affirm that publication is essential to the effectivity
of a legislative or executive act of a general application. I am not
in agreement with the view that such publication must be in the
Official Gazette. The Civil Code itself in its Article 2 expressly
recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette
is subject to this exception, "unless it is otherwise provided."
Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical
force of a constitutional command. A later legislative or executive
act which has the force and effect of law can legally provide for a
different rule.
5. Nor can I agree with the rather sweeping conclusion in the
opinion of Justice Escolin that presidential decrees and executive
acts not thus previously published in the Official Gazette would be
devoid of any legal character. That would be, in my opinion, to go
too far. It may be fraught, as earlier noted, with undesirable
consequences. I find myself therefore unable to yield assent to
such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos,
Cuevas, and Alampay concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
 TEEHANKEE, J.,  concurring:
I concur with the main opinion of Mr. Justice Escolin and the
concurring opinion of Mme. Justice Herrera. The Rule of Law
connotes a body of norms and laws published and ascertainable
and of equal application to all similarly circumstances and not
subject to arbitrary change but only under certain set procedures.
The Court has consistently stressed that "it is an elementary rule
of fair play and justice that a reasonable opportunity to be
informed must be afforded to the people who are commanded to
obey before they can be punished for its violation,1 citing the
settled principle based on due process enunciated in earlier cases
that "before the public is bound by its contents, especially its penal
provisions, a law, regulation or circular must first be published and
the people officially and specially informed of said contents and its
penalties.
Without official publication in the Official Gazette as required by
Article 2 of the Civil Code and the Revised Administrative Code,
there would be no basis nor justification for the corollary rule of
Article 3 of the Civil Code (based on constructive notice that the
provisions of the law are ascertainable from the public and official
repository where they are duly published) that "Ignorance of the
law excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the
Civil Code that "only laws which are silent as to their effectivity
[date] need be published in the Official Gazette for their effectivity"
is manifestly untenable. The plain text and meaning of the Civil
Code is that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is
otherwise provided, " i.e.  a different effectivity date is provided by
the law itself. This proviso perforce refers to a law that has been
duly published pursuant to the basic constitutional requirements of
due process. The best example of this is the Civil Code itself: the
same Article 2 provides otherwise that it "shall take effect [only]
one year [not 15 days] after such publication. 2 To sustain
respondents' misreading that "most laws or decrees specify the
date of their effectivity and for this reason, publication in the
Official Gazette is not necessary for their effectivity 3 would be to
nullify and render nugatory the Civil Code's indispensable and
essential requirement of prior publication in the Official Gazette by
the simple expedient of providing for immediate effectivity or an
earlier effectivity date in the law itself before  the completion of 15
days following its publication which is the period generally fixed by
the Civil Code for its proper dissemination.
 MELENCIO-HERRERA, J.,  concurring:
I agree. There cannot be any question but that even if a decree
provides for a date of effectivity, it has to be published. What I
would like to state in connection with that proposition is that when
a date of effectivity is mentioned in the decree but the decree
becomes effective only fifteen (15) days after its publication in the
Official Gazette, it will not mean that the decree can have
retroactive effect to the date of effectivity mentioned in the decree
itself. There should be no retroactivity if the retroactivity will run
counter to constitutional rights or shall destroy vested rights.
 PLANA, J.,  concurring (with qualification):
The Philippine Constitution does not require the publication of
laws as a prerequisite for their effectivity, unlike some
Constitutions elsewhere. * It may be said though that the
guarantee of due process requires notice of laws to affected
parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process
clause is not that precise. Neither is the publication of laws in
the Official Gazette  required by any statute as a prerequisite for
their effectivity, if  said laws already provide for their effectivity
date.
Article 2 of the Civil Code provides that "laws shall take effect after
fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided  " Two things may
be said of this provision: Firstly, it obviously does not apply to a
law with a built-in provision as to when it will take effect. Secondly,
it clearly recognizes that each law may provide not only a different
period for reckoning its effectivity date but also a different mode of
notice. Thus, a law may prescribe that it shall be published
elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the
proposition that for their effectivity,  laws must be published in the
Official Gazette. The said law is simply "An Act to Provide for the
Uniform Publication and Distribution of the Official Gazette."
Conformably therewith, it authorizes the publication of the Official
Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in
relation thereto. It also enumerates what shall be published in the
Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines"
and "all executive and administrative orders and proclamations,
except such as have no general applicability." It is noteworthy that
not all legislative acts are required to be published in the Official
Gazette but only "important" ones "of a public nature." Moreover,
the said law does not provide that publication in the Official
Gazette is essential for the effectivity of laws. This is as it should
be, for all statutes are equal and stand on the same footing. A law,
especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation
of a subsequent statute that has a provision of its own as to when
and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it
requires notice before laws become effective, for no person
should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.
 GUTIERREZ, Jr., J.,  concurring:
I concur insofar as publication is necessary but reserve my vote
as to the necessity of such publication being in the Official
Gazette.
  DE LA FUENTE, J.,  concurring:
I concur insofar as the opinion declares the unpublished decrees
and issuances of a public nature or general applicability
ineffective, until due publication thereof.

G.R. No. L-23825      December 24, 1965
EMMANUEL PELAEZ, petitioner,
vs.
THE AUDITOR GENERAL, respondent.
Zulueta, Gonzales, Paculdo and Associates for petitioner.
Office of the Solicitor General for respondent.
CONCEPCION, J.:
During the period from September 4 to October 29, 1964 the
President of the Philippines, purporting to act pursuant to Section
68 of the Revised Administrative Code, issued Executive Orders
Nos. 93 to 121, 124 and 126 to 129; creating thirty-three (33)
municipalities enumerated in the margin.1 Soon after the date last
mentioned, or on November 10, 1964 petitioner Emmanuel
Pelaez, as Vice President of the Philippines and as taxpayer,
instituted the present special civil action, for a writ of prohibition
with preliminary injunction, against the Auditor General, to restrain
him, as well as his representatives and agents, from passing in
audit any expenditure of public funds in implementation of said
executive orders and/or any disbursement by said municipalities.
Petitioner alleges that said executive orders are null and void,
upon the ground that said Section 68 has been impliedly repealed
by Republic Act No. 2370 and constitutes an undue delegation of
legislative power. Respondent maintains the contrary view and
avers that the present action is premature and that not all proper
parties — referring to the officials of the new political subdivisions
in question — have been impleaded. Subsequently, the mayors of
several municipalities adversely affected by the aforementioned
executive orders — because the latter have taken away from the
former the barrios composing the new political subdivisions —
intervened in the case. Moreover, Attorneys Enrique M. Fernando
and Emma Quisumbing-Fernando were allowed to and did appear
as amici curiae.
The third paragraph of Section 3 of Republic Act No. 2370, reads:
Barrios shall not be created or their boundaries altered nor their
names changed except under the provisions of this Act or by Act
of Congress.
Pursuant to the first two (2) paragraphs of the same Section 3:
All barrios existing at the time of the passage of this Act shall
come under the provisions hereof.
Upon petition of a majority of the voters in the areas affected, a
new barrio may be created or the name of an existing one may be
changed by the provincial board of the province, upon
recommendation of the council of the municipality or municipalities
in which the proposed barrio is stipulated. The recommendation of
the municipal council shall be embodied in a resolution approved
by at least two-thirds of the entire membership of the said council:
Provided, however, That no new barrio may be created if its
population is less than five hundred persons.
Hence, since January 1, 1960, when Republic Act No. 2370
became effective, barrios may "not be created or their boundaries
altered nor their names changed" except by Act of Congress or of
the corresponding provincial board "upon petition of a majority of
the voters in the areas affected" and the "recommendation of the
council of the municipality or municipalities in which the proposed
barrio is situated." Petitioner argues, accordingly: "If the President,
under this new law, cannot even create a barrio, can he create a
municipality which is composed of several barrios,
since barrios  are units of municipalities?"
Respondent answers in the affirmative, upon the theory that a new
municipality can be created without creating new barrios, such as,
by placing old barrios under the jurisdiction of the new
municipality. This theory overlooks, however, the main import of
the petitioner's argument, which is that the statutory denial of the
presidential authority to create a new barrio implies a negation of
the bigger power to create municipalities, each of which consists
of several barrios. The cogency and force of this argument is too
obvious to be denied or even questioned. Founded upon logic and
experience, it cannot be offset except by a clear manifestation of
the intent of Congress to the contrary, and no such manifestation,
subsequent to the passage of Republic Act No. 2379, has been
brought to our attention.
Moreover, section 68 of the Revised Administrative Code, upon
which the disputed executive orders are based, provides:
The (Governor-General) President of the Philippines may by
executive order define the boundary, or boundaries, of any
province, subprovince, municipality, [township] municipal district,
or other political subdivision, and increase or diminish the territory
comprised therein, may divide any province into one or more
subprovinces, separate any political division other than a province,
into such portions as may be required, merge any of such
subdivisions or portions with another, name any new subdivision
so created, and may change the seat of government within any
subdivision to such place therein as the public welfare may
require: Provided, That the authorization of the (Philippine
Legislature) Congress of the Philippines shall first be obtained
whenever the boundary of any province or subprovince is to be
defined or any province is to be divided into one or more
subprovinces. When action by the (Governor-General) President
of the Philippines in accordance herewith makes necessary a
change of the territory under the jurisdiction of any administrative
officer or any judicial officer, the (Governor-General) President of
the Philippines, with the recommendation and advice of the head
of the Department having executive control of such officer, shall
redistrict the territory of the several officers affected and assign
such officers to the new districts so formed.
Upon the changing of the limits of political divisions in pursuance
of the foregoing authority, an equitable distribution of the funds
and obligations of the divisions thereby affected shall be made in
such manner as may be recommended by the (Insular Auditor)
Auditor General and approved by the (Governor-General)
President of the Philippines.
Respondent alleges that the power of the President to create
municipalities under this section does not amount to an undue
delegation of legislative power, relying upon Municipality of
Cardona vs. Municipality of Binañgonan (36 Phil. 547), which, he
claims, has settled it. Such claim is untenable, for said case
involved, not the creation of a new municipality, but a
mere transfer of territory — from an already existing municipality
(Cardona) to another municipality (Binañgonan), likewise, existing
at the time of and prior to said transfer  (See Gov't of the P.I. ex
rel. Municipality of Cardona vs. Municipality, of Binañgonan [34
Phil. 518, 519-5201) — in consequence of the fixing and
definition, pursuant to Act No. 1748, of the common boundaries of
two municipalities.
It is obvious, however, that, whereas the power to fix such
common boundary, in order to avoid or settle conflicts of
jurisdiction between adjoining municipalities, may partake of
an administrative nature — involving, as it does, the adoption of
means and ways to carry into effect the law creating said
municipalities — the authority to create municipal corporations is
essentially legislative in nature. In the language of other courts, it
is "strictly a legislative function" (State ex rel. Higgins vs. Aicklen,
119 S. 425, January 2, 1959) or "solely and exclusively the
exercise of legislative power" (Udall vs. Severn, May 29, 1938, 79
P. 2d 347-349). As the Supreme Court of Washington has put it
(Territory ex rel. Kelly vs. Stewart, February 13, 1890, 23 Pac.
405, 409), "municipal corporations are purely the creatures of
statutes."
Although1a Congress may delegate to another branch of the
Government the power to fill in the details in the execution,
enforcement or administration of a law, it is essential, to forestall a
violation of the principle of separation of powers, that said law: (a)
be complete in itself — it must set forth therein the policy to be
executed, carried out or implemented by the delegate 2 — 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).
For this reason, courts of justice have annulled, as constituting
undue delegation of legislative powers, state laws granting the
judicial department, the power to determine whether certain
territories should be annexed to a particular municipality (Udall vs.
Severn, supra, 258-359); or vesting in a Commission the right to
determine the plan and frame of government of proposed villages
and what functions shall be exercised by the same, although the
powers and functions of the village are specifically limited by
statute (In re Municipal Charters, 86 Atl. 307-308); or conferring
upon courts the authority to declare a given town or village
incorporated, and designate its metes and bounds, upon petition
of a majority of the taxable inhabitants thereof, setting forth the
area desired to be included in such village (Territory ex rel Kelly
vs. Stewart, 23 Pac. 405-409); or authorizing the territory of a
town, containing a given area and population, to be incorporated
as a town, on certain steps being taken by the inhabitants thereof
and on certain determination by a court and subsequent vote of
the inhabitants in favor thereof, insofar as the court is allowed to
determine whether the lands embraced in the petition "ought
justly" to be included in the village, and whether the interest of the
inhabitants will be promoted by such incorporation, and to enlarge
and diminish the boundaries of the proposed village "as justice
may require" (In re Villages of North Milwaukee, 67 N.W. 1035-
1037); or creating a Municipal Board of Control which shall
determine whether or not the laying out, construction or operation
of a toll road is in the "public interest" and whether the
requirements of the law had been complied with, in which case the
board shall enter an order creating a municipal corporation and
fixing the name of the same (Carolina-Virginia Coastal Highway
vs. Coastal Turnpike Authority, 74 S.E. 2d. 310).
Insofar as the validity of a delegation of power by Congress to the
President is concerned, the case of Schechter Poultry
Corporation vs. U.S.  (79 L. Ed. 1570) is quite relevant to the one
at bar. The Schechter case involved the constitutionality of
Section 3 of the National Industrial Recovery Act authorizing the
President of the United States to approve "codes of fair
competition" submitted to him by one or more trade or industrial
associations or corporations which "impose no inequitable
restrictions on admission to membership therein and are truly
representative," provided that such codes are not designed "to
promote monopolies or to eliminate or oppress small enterprises
and will not operate to discriminate against them, and will tend to
effectuate the policy" of said Act. The Federal Supreme Court
held:
To summarize and conclude upon this point: Sec. 3 of the
Recovery Act is without precedent. It supplies no standards for
any trade, industry or activity. It does not undertake to prescribe
rules of conduct to be applied to particular states of fact
determined by appropriate administrative procedure. Instead of
prescribing rules of conduct, it authorizes the making of codes to
prescribe them. For that legislative undertaking, Sec. 3 sets up no
standards, aside from the statement of the general aims of
rehabilitation, correction and expansion described in Sec. 1. In
view of the scope of that broad declaration, and of the nature of
the few restrictions that are imposed, the discretion of the
President in approving or prescribing codes, and thus enacting
laws for the government of trade and industry throughout the
country, is virtually unfettered. We think that the code making
authority thus conferred is an unconstitutional delegation of
legislative power.
If the term "unfair competition" is so broad as to vest in the
President a discretion that is "virtually unfettered." and,
consequently, tantamount to a delegation of legislative power, it is
obvious that "public welfare," which has even a broader
connotation, leads to the same result. In fact, if the validity of the
delegation of powers made in Section 68 were upheld, there
would no longer be any legal impediment to a statutory grant of
authority to the President to do anything which, in his opinion, may
be required by public welfare or public interest. Such grant of
authority would be a virtual abdication of the powers of Congress
in favor of the Executive, and would bring about a total collapse of
the democratic system established by our Constitution, which it is
the special duty and privilege of this Court to uphold.
It may not be amiss to note that the executive orders in question
were issued after the legislative bills for the creation of the
municipalities involved in this case had failed to pass Congress. A
better proof of the fact that the issuance of said executive orders
entails the exercise of purely legislative functions can hardly be
given.
Again, Section 10 (1) of Article VII of our fundamental law ordains:
The President shall have control of all the executive departments,
bureaus, or offices, exercise general supervision over all local
governments as may be provided by law, and take care that the
laws be faithfully executed.
The power of control under this provision implies the right of the
President to interfere in the exercise of such discretion as may be
vested by law in the officers of the executive departments,
bureaus, or offices of the national government, as well as to act in
lieu of such officers. This power is denied  by the Constitution to
the Executive, insofar as local governments are concerned. With
respect to the latter, the fundamental law permits him to wield no
more authority than that of checking whether said local
governments or the officers thereof perform their duties as
provided by statutory enactments. Hence, the President cannot
interfere with local governments, so long as the same or its
officers act Within the scope of their authority. He may not enact
an ordinance which the municipal council has failed or refused to
pass, even if it had thereby violated a duty imposed thereto by
law, although he may see to it that the corresponding provincial
officials take appropriate disciplinary action therefor. Neither may
he vote, set aside or annul an ordinance passed by said council
within the scope of its jurisdiction, no matter how patently unwise it
may be. He may not even suspend an elective official of a regular
municipality or take any disciplinary action against him, except on
appeal from a decision of the corresponding provincial board.5
Upon the other hand if the President could create a municipality,
he could, in effect, remove any of its officials, by creating a new
municipality and including therein the barrio  in which the official
concerned resides, for his office would thereby become
vacant.6 Thus, by merely brandishing the power to create a new
municipality (if he had it), without actually creating it, he could
compel local officials to submit to his dictation, thereby, in effect,
exercising over them the power of control denied to him by the
Constitution.
Then, also, the power of control of the President over executive
departments, bureaus or offices implies no more  than the
authority to assume directly the functions thereof or to interfere in
the exercise of discretion by its officials. Manifestly, such control
does not include the authority either to abolish an executive
department or bureau, or to create a new one . As a consequence,
the alleged power of the President to create municipal
corporations would necessarily connote the exercise by him of an
authority even greater than that of control which he has over the
executive departments, bureaus or offices. In other words, Section
68 of the Revised Administrative Code does not merely fail to
comply with the constitutional mandate above quoted. Instead of
giving the President less power over local governments than that
vested in him over the executive departments, bureaus or offices,
it reverses the process and does the exact opposite, by conferring
upon him more  power over municipal corporations than that which
he has over said executive departments, bureaus or offices.
In short, even if it did entail an undue delegation of legislative
powers, as it certainly does, said Section 68, as part of the
Revised Administrative Code, approved on March 10, 1917, must
be deemed repealed by the subsequent adoption of the
Constitution, in 1935, which is utterly incompatible and
inconsistent with said statutory enactment.7
There are only two (2) other points left for consideration, namely,
respondent's claim (a) that "not all the proper parties" — referring
to the officers of the newly created municipalities — "have been
impleaded in this case," and (b) that "the present petition is
premature."
As regards the first point, suffice it to say that the records do not
show, and the parties do not claim, that the officers of any of said
municipalities have been appointed or elected and assumed
office. At any rate, the Solicitor General, who has appeared on
behalf of respondent Auditor General, is the officer authorized by
law "to act and represent the Government of the Philippines, its
offices and agents, in any official investigation, proceeding or
matter requiring the services of a lawyer" (Section 1661, Revised
Administrative Code), and, in connection with the creation of the
aforementioned municipalities, which involves a political, not
proprietary, function, said local officials, if any, are mere agents or
representatives of the national government. Their interest in the
case at bar has, accordingly, been, in effect, duly represented.8
With respect to the second point, respondent alleges that he has
not as yet acted on any of the executive order & in question and
has not intimated how he would act in connection therewith. It is,
however, a matter of common, public knowledge, subject to
judicial cognizance, that the President has, for many years, issued
executive orders creating municipal corporations and that the
same have been organized and in actual operation, thus
indicating, without peradventure of doubt, that the expenditures
incidental thereto have been sanctioned, approved or passed in
audit by the General Auditing Office and its officials. There is no
reason to believe, therefore, that respondent would adopt a
different policy as regards the new municipalities involved in this
case, in the absence of an allegation to such effect, and none has
been made by him.
WHEREFORE, the Executive Orders in question are hereby
declared null and void ab initio and the respondent permanently
restrained from passing in audit any expenditure of public funds in
implementation of said Executive Orders or any disbursement by
the municipalities above referred to. It is so ordered.
Separate Opinions
BENGZON, J.P., J.,  concurring and dissenting:
A sign of progress in a developing nation is the rise of new
municipalities. Fostering their rapid growth has long been the aim
pursued by all three branches of our Government.
So it was that the Governor-General during the time of the Jones
Law was given authority by the Legislature (Act No. 1748) to act
upon certain details with respect to said local governments, such
as fixing of boundaries, subdivisions and mergers. And the
Supreme Court, within the framework of the Jones Law, ruled in
1917 that the execution or implementation of such details, did not
entail abdication of legislative power (Government vs. Municipality
of Binañgonan, 34 Phil. 518; Municipality of Cardona vs.
Municipality of Binañgonan, 36 Phil. 547). Subsequently, Act No.
1748's aforesaid statutory authorization was embodied in Section
68 of the Revised Administrative Code. And Chief Executives
since then up to the present continued to avail of said provision,
time and again invoking it to issue executive orders providing for
the creation of municipalities.
From September 4, 1964 to October 29, 1964 the President of the
Philippines issued executive orders to create thirty-three
municipalities pursuant to Section 68 of the Revised
Administrative Code. Public funds thereby stood to be disbursed
in implementation of said executive orders.
Suing as private citizen and taxpayer, Vice President Emmanuel
Pelaez filed in this Court a petition for prohibition with preliminary
injunction against the Auditor General. It seeks to restrain the
respondent or any person acting in his behalf, from passing in
audit any expenditure of public funds in implementation of the
executive orders aforementioned.
Petitioner contends that the President has no power to create a
municipality by executive order. It is argued that Section 68 of the
Revised Administrative Code of 1917, so far as it purports to grant
any such power, is invalid or, at the least, already repealed, in
light of the Philippine Constitution and Republic Act 2370 (The
Barrio Charter).
Section 68 is again reproduced hereunder for convenience:
SEC. 68. General authority of [Governor-General) President of the
Philippines to fix boundaries and make new subdivisions. — 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 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.
From such working I believe that power to create a municipality is
included: to "separate any political division other than a province,
into such portions as may be required, merge any such
subdivisions or portions with another, name any new subdivision
so created." The issue, however, is whether the legislature can
validly delegate to the Executive such power.
The power to create a municipality is legislative in character.
American authorities have therefore favored the view that it cannot
be delegated; that what is delegable is not the power to create
municipalities but only the power to determine the existence of
facts under which creation of a municipality will result (37 Am. Jur.
628).
The test is said to lie in whether the statute allows any discretion
on the delegate as to whether the municipal corporation should be
created. If so, there is an attempted delegation of legislative power
and the statute is invalid (Ibid.). Now Section 68 no doubt gives
the President such discretion, since it says that the President
"may by executive order" exercise the powers therein granted.
Furthermore, Section 5 of the same Code states:
SEC. 5. Exercise of administrative discretion —  The exercise of
the permissive powers of all executive or administrative officers
and bodies is based upon discretion, and when such officer or
body is given authority to do any act but not required to do such
act, the doing of the same shall be dependent on a sound
discretion to be exercised for the good of the service and benefit
of the public, whether so expressed in the statute giving the
authority or not.
Under the prevailing rule in the United States — and Section 68 is
of American origin — the provision in question would be an invalid
attempt to delegate purely legislative powers, contrary to the
principle of separation of powers.
It is very pertinent that Section 68 should be considered with the
stream of history in mind. A proper knowledge of the past is the
only adequate background for the present. Section 68 was
adopted half a century ago. Political change, two world wars, the
recognition of our independence and rightful place in the family of
nations, have since taken place. In 1917 the Philippines had for its
Organic Act the Jones Law. And under the setup ordained therein
no strict separation of powers was adhered to. Consequently,
Section 68 was not constitutionally objectionable at the time of its
enactment.
The advent of the Philippine Constitution in 1935 however altered
the situation. For not only was separation of powers strictly
ordained, except only in specific instances therein provided, but
the power of the Chief Executive over local governments suffered
an explicit reduction.
Formerly, Section 21 of the Jones Law provided that the
Governor-General "shall have general supervision and control of
all the departments and bureaus of the government in the
Philippine Islands." Now Section 10 (1), Article VII of the
Philippine Constitution provides: "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.
In short, the power of control over local governments had now
been taken away from the Chief Executive. Again, to fully
understand the significance of this provision, one must trace its
development and growth.
As early as April 7, 1900 President McKinley of the United States,
in his Instructions to the Second Philippine Commission, laid down
the policy that our municipal governments should be "subject to
the least degree of supervision and control" on the part of the
national government. Said supervision and control was to be
confined within the "narrowest limits" or so much only as "may be
necessary to secure and enforce faithful and efficient
administration by local officers." And the national government
"shall have no direct administration except of matters of purely
general concern." (See Hebron v. Reyes, L-9158, July 28, 1958.)
All this had one aim, to enable the Filipinos to acquire experience
in the art of self-government, with the end in view of later allowing
them to assume complete management and control of the
administration of their local affairs. Such aim is the policy now
embodied in Section 10 (1), Article VII of the Constitution
(Rodriguez v. Montinola, 50 O.G. 4820).
It is the evident decree of the Constitution, therefore, that the
President shall have no power of control over local governments.
Accordingly, Congress cannot by law grant him such power
(Hebron v. Reyes, supra). And any such power formerly granted
under the Jones Law thereby became unavoidably inconsistent
with the Philippine Constitution.
It remains to examine the relation of the power to create and the
power to control local governments. Said relationship has already
been passed upon by this Court in Hebron v. Reyes, supra. In
said case, it was ruled that the power to control is an incident of
the power to create or abolish municipalities. Respondent's view,
therefore, that creating municipalities and controlling their local
governments are "two worlds apart," is untenable. And since as
stated, the power to control local governments can no longer be
conferred on or exercised by the President, it follows a  fortiori that
the power to create them, all the more cannot be so conferred or
exercised.
I am compelled to conclude, therefore, that Section 10 (1), Article
VII of the Constitution has repealed Section 68 of the Revised
Administrative Code as far as the latter empowers the President to
create local governments. Repeal by the Constitution of prior
statutes inconsistent with it has already been sustained in De los
Santos v. MaIlare, 87 Phil. 289. And it was there held that such
repeal differs from a declaration of unconstitutionality of a
posterior legislation, so much so that only a majority vote of the
Court is needed to sustain a finding of repeal.
Since the Constitution repealed Section 68 as far back as 1935, it
is academic to ask whether Republic Act 2370 likewise has
provisions in conflict with Section 68 so as to repeal it. Suffice it to
state, at any rate, that statutory prohibition on the President from
creating a barrio does not, in my opinion, warrant the inference of
statutory prohibition for creating a municipality. For although
municipalities consist of barrios, there is nothing in the statute that
would preclude creation of new municipalities out of pre-existing
barrios.
It is not contrary to the logic of local autonomy to be able to create
larger political units and unable to create smaller ones. For as
long ago observed in President McKinley's Instructions to the
Second Philippine Commission, greater autonomy is to be
imparted to the smaller of the two political units. The smaller the
unit of local government, the lesser is the need for the national
government's intervention in its political affairs. Furthermore, for
practical reasons, local autonomy cannot be given from the top
downwards. The national government, in such a case, could still
exercise power over the supposedly autonomous unit, e.g.,
municipalities, by exercising it over the smaller units that comprise
them, e.g., the barrios. A realistic program of decentralization
therefore calls for autonomy from the bottom upwards, so that it is
not surprising for Congress to deny the national government some
power over barrios without denying it over municipalities. For this
reason, I disagree with the majority view that because the
President could not create a barrio under Republic Act 2370,
a fortiori  he cannot create a municipality.
It is my view, therefore, that the Constitution, and not Republic Act
2370, repealed Section 68 of the Revised Administrative Code's
provision giving the President authority to create local
governments. And for this reason I agree with the ruling in the
majority opinion that the executive orders in question are null and
void.
In thus ruling, the Court is but sustaining the fulfillment of our
historic desire to be free and independent under a republican form
of government, and exercising a function derived from the very
sovereignty that it upholds. Executive orders declared null and
void.
Makalintal and Regala, JJ., concur.